Remanded On Costs-Of-Proof Award; Expert Witness Fee Award Affirmed Based On Inadequate Appellate Record.
In Roldan v. Flores, Case No. B260336 (2d Dist., Div. 3 Oct. 5, 2016) (unpublished), a lower court awarded costs-of-proof sanctions in the amount of $48,000 for defendant’s failure to admit certain RFAs in a plaintiff motorized bicyclist-defendant car accident case, even though plaintiff recovered only $12,950 in damages. Also, the lower court awarded about $20,000 in expert witness fees to plaintiff after the defense failed to accept a 998 offer for $15,000. Defendant appealed.
Defendant won a remand on the costs-of-proof issue but lost the challenge to the expert fee award (challenging the denial of the defense motion to tax costs).
The costs-of-proof sanctions award was reversed because (1) some RFAs involved facts which the defense stipulated before trial such that no proof had to be introduced, (2) some RFA facts were never proven by plaintiff at trial, and (3) some of the RFA requests were not that important, such as to admit damages for very small levels when it was clear plaintiff would seek substantially higher damages at trial (which occurred). However, other RFA denials were found to give rise to C-O-P sanctions, such that a remand was necessary to award dollars only on the RFAs for which sanctions were justified.
Although defendant might have had some traction on the expert witness fees issue, her problem was failure to provide a reporter’s transcript of the motion to tax costs and failure to provide the order actually awarding the $20,000 in expert witness fees—despite the appellate court sending a request for these documents under penalty of waiver. No further documents were filed, such that a waiver was the determination which occurred!