Defense Waived Sanctions By Not Moving to Compel Further Responses to Incomplete RFA Responses.
We have blogged many times before on the “costs of proof” sanctions available to litigants that can show the opponent made them expend unnecessary fees and costs in proving facts at trial that were denied in earlier requests for admission responses.
However, Smith v. GNP-Crescendo Record Co., Inc., Case No. B235551 (2d Dist., Div. 1 May 25, 2012) (unpublished) reminds us that “costs of proof” sanctions can be waived if certain other procedural requirements are not met.
There, plaintiff lost a music royalty acounting dispute, with defendants moving to recoup $49,031 “costs of proof” sanctions arising from plaintiff’s earlier denial of certain RFAs. The lower court denied the request, a determination affirmed on appeal.
Two reasons supported affirmance. First, defendants never challenged incomplete RFA responses through a motion to compel, effectively waiving the ability to collect “costs of proof” sanctions. (Code Civ. Proc., § 2033.420(b)(1).) Second, plaintiff had a reasonable belief to deny certain requests based upon obtaining a music industry expert declaration supporting a contention that certain royalty contractual provisions were unconscionable in nature. (§ 2033.420(b)(3).)