The result in Chung v. Bookspan, Case Nos. B236479/B238058 (2d Dist., Div. 1 Jan. 17, 2013) (unpublished) is actually a great reinforcement of a needed lesson if you are representing a party claiming costs-of-proof sanctions under Code of Civil Procedure section 2033.420, which allows a prevailing party at trial to obtain costs/fees of proving facts improperly denied through requests for admissions during the discovery process.
A party requested $86,782.40 in all attorney’s fees incurred from inception of the case through judgment in proving the denial of 21 out of 33 requests for admissions tendered to an opposing party. The lower court denied the fee request.
Fee denial affirmed on appeal. Reason? Requesting party inflated the fee request, the opposing party had a reasonable basis to rely on a novation defense, and the requesting party did no allocation of fees tethered to the expenses incurred in proving the RFA denials. “[Requesting party] improperly tried to use section 2033.420 as a means of recovering all attorneys fees he incurred from the inception of the case through judgment. He made no attempt to show how the fees he sought were incurred in proving the truth of the matters covered by the 21 requests for admission at issue.” (Slip Opn., at p. 19.)
Lesson to be learned: if you want to make a real run at costs-of-proof sanctions, you need to allocate fees and expenses, correlating them to the “real time” spent proving the RFA denials.