Second District So Rules Even Though Plaintiff Lost at the Demurrer Stage.
In State of California ex rel. Dockstader v. Amoroso Construction Co., Inc., Case No. B197343 (2d Dist., Div. 5 Aug. 26, 2008) (unpublished), a qui tam plaintiff lost a demurrer against some private defendants for reimbursement of costs relating to new school construction. Plaintiff denied certain requests for admissions during the course of litigation. One of the defendants requested fees under two theories: (1) for recovery of expenses to prove matters after the RFAs were denied; and (2) plaintiff proceeded with a clearly frivolous claim, triggering fee recovery under Government Code section 12652(g)(9). The trial court denied the fee requests under both theories. Aggrieved defendant appealed and did not prevail.
Both fee denials were judged under the deferential abuse of discretion standard of review. See, e.g., Wimberly v. Derby Cycle Corp., 56 Cal.App.4th 618, 637 n. 10 (1997) [RFAs]; Bartling v. Glendale Adventist Medical Center, 184 Cal.App.3d 97, 103 (1986) [Government Code section 12652(g)(9)].
With respect to the RFA denial issue, there was no error in denying fees to defendant. The key fact is that a demurrer was granted such that no proof was involved or no policy to award costs when a litigant denies RFAs in an attempt to make a trial more expensive. The appellate panel articulated it this way: "It is clear from the plain language of the statute that in order to be awarded attorney fees under Code of Civil Procedure section 2033.420, the party who propounded the request for admission must ‘prove the truth’ of the matter at issue before being entitled to recover expenses. [Appellant/defendant] did not prove the truth of any matter. Instead, [appellant] demurred, and the trial court agreed, that the complaint failed to allege a cause of action. No proof was required, and the trial court correctly determined that [appellant] was not entitled to recover attorney fees under the discovery provision." (Slip Opn., at p. 26.) BLOG OBSERVATION—For similar or diverse rulings on RFA denial issues, see our "Cases: Requests for Admission" Category. (Expenses were awarded in the cases we reviewed only after the matter proceeded to trial, which bolsters the result reached in Dockstader.)
Government Code section 12652(g)(9) was not a good hook for fee recovery. It provides that a court may award reasonable attorney’s fees and expenses to a defendant in a qui tam action "if the defendant prevails in the action and the court finds that the claim was clearly frivolous, clearly vexatious, or brought solely for purposes of harassment." Given the importance of the allegations in the complaint, plaintiff’s inability to allege specific facts did not render the complaint "clearly frivolous." The lower court’s denial on this basis was justified.