Second District, Division 4, Explains You Better Move to Compel if You Want to Preserve the Right to Fees Under CCP 2033.420.
The underlying facts of the next case were dramatic. A fight broke out at the Rits Cafe culminating in the shooting death of one person and the wounding of another. Lawsuits followed that included causes of action for negligence, negligent hiring-supervision, assault and battery, wrongful death, and a survival action for negligence. Defendants move for summary judgment and won, based on the lack of a duty to those who were injured. Previous altercations at the Rits Cafe did not rise to such a level as to create a duty in the owners of the Rits Cafe. The shooter had come from Russian Nights, another establishment, and the owner successfully argued he had no liability because the shooting did not occur on the premises. In all respects the judgment was affirmed – except as to an attorney’s fees issue. Tadevosyan v. Shakarian, B213649 (2nd Dist., Div. 4 July 20, 2010 (unpublished). Hence, this post.
The trial court awarded fees of $36,861 to two defendants for expenses incurred to prove matters denied by appellants in response to the requests for admission. Unfortunately for respondents, the denials were not unequivocal, but included objections, partial admissions, and partial denials. Respondents were required to move to compel further responses to preserve the right to fees under CCP 2033.420. Hence, the Court of Appeal reversed the fee award.
The practical lesson is that, when responding to requests for admissions, weasel words resulting in an equivocal denial may avoid an award of attorney’s fees – and that the party getting the evasive responses will have to incur the additional expense of moving to compel to be able to take advantage of CCP 2033.420.
