Also, Second District, Division 3 Decides Fee Award Not Tethered to Actual Costs of Proof of Denied Admissions.
Here is a “biggie” under our category “Requests for Admissions,” a just published Second District, Division 3 decision—Estate of Manuel, Case Nos. B210701/B215380 (2d Dist., Div. 3) (Aug. 10, 2010) (certified for partial publication)—authored by Acting Presiding Justice Croskey on behalf of a 3-0 panel. There, parties and their attorneys, on an allocated basis, were held liable for all of the attorney’s fees of an opponent incurred after the date of the denial of certain RFAs, aggregating a fee award of $52,779.50. Costs of proof award reversed for two reasons.
The first part of the decision holds that costs of proof fees under Code of Civil Procedure section 2033.420(a), which allows an award of attorney’s fees for failure to admit the truth of a request for admission (subject to certain exceptions), can only be imposed against parties, not their attorneys. This result was dictated by the unambiguous language of section 2033.420(a), as well as federal cases that had reached the same result under Federal Rules of Civil Procedure, rule 37(c) (the federal civil rule analog provision).
The second part of Estate of Manuel, though unpublished, found that the trial court overdid it with respect to the award of fees. After all, there was reasonable basis for the litigant to deny requests on the testamentary capacity issue, and fees devoted to mediation efforts had no nexus to disputed facts at issue in the RFAs. A remand was appropriate, directed to limit the costs of proof award to the actual costs of proof.