First District, Division 1 Finds HOA Never Had To Prove The Truth Of Matter Initially Denied But Then Admitted During Subsequent Pretrial Deposition.
In our category “Requests for Admissions,” we have explored several decisions granting or denying attorney’s fees and costs requests under Code of Civil Procedure section 2033.420. That statutory provision provides that a party denying a request for admission may be ordered to pay the costs and fees incurred by the requesting party in proving that matter unless there are certain specified mitigating factors at play. The next case involved the reversal of a $17,500 fee award against a nonsuited plaintiff in a premises liability/negligence lawsuit against a homeowners association based on plaintiff denying one request for admission.
Bachelor v. Blackhawk Homeowners’ Assn., Case No. A121222 (1st Dist., Div. 1 Aug. 26, 2009) (unpublished), in reversing the fee award against losing plaintiff, found that the one germane request for admission—whether a hillside had been sprayed with weed killer prior to a December 2002 storm—had been denied initially but had been admitted in a deposition taken 10 days after service of the RFA denial. Even more critical, the weed killer fact was admitted in losing plaintiff’s case in chief during trial (before the nonsuit was granted). This meant that HOA never had to prove the denied fact given that a nonsuit was granted and nothing demonstrated the deposition testimony was ever introduced at trial. Because no proof was ever introduced by HOA on the denied RFA, there was no basis for the fee award.