Fourth District, Division 1 Denies Fees Based on Lack of Apportionment.
Here is a case with a pragmatic reminder for all litigators feeling they have a shot at recovering attorney’s fees under Code of Civil Procedure section 2033.420, the Discovery Act provision allowing a requesting party to recover attorney’s fees incurred in proving the truth of a matter denied by a responding party answering requests for admissions. The lesson is to heed the advice of the Rutter Group treatise writers in this area: segregate your time and expenses in order to prove the particular matters in dispute and your trial preparation time to recoup fees on those matters. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) para. 8:1415, p. 8G-41.)
Failure to follow this practical advice cost defendant a chance for recoupment of substantial attorney’s fees after plaintiff lost her case through summary adjudication and a nonsuit. One defendant sought to recover $184,200 in attorney’s fees for plaintiff’s denial of certain RFAs. The trial court denied the request, finding defendant sought to recover for all work in the case rather than just time spent in proving the truth of the denied matters. The lower court concluded in part: “This motion is problematic because it is presented on an ‘all or nothing’ basis. The fees expended are not broken down as to the proof required for each asserted request for admission. Essentially, defendant argue[s] that the entire trial would have been unnecessary if plaintiffs would have responded to the requests for admissions in good faith. The sanction set forth in section 2033.420 was not intended to apply to an entire trial such that it acts as a pseudo sanction for malicious prosecution.”
This determination was affirmed by the Fourth District, Division 1 in Kim v. Lee, Case No. D053890 (4th Dist., Div. 1 July 13, 2009) (unpublished). Not only did plaintiff have reasonable grounds to believe they would prevail and thus had basis to deny some of the RFAs, the appellate court quoted the Rutter Group “segregation” advice and found that the failure to apportion time was fatal to the “all or nothing” request. “ . . . in light of the lack of specificity in [defendant’s] motion for attorney fees, the trial court had no way of determining which fees were recoverable and which were not recoverable Therefore, the trial court did not abuse its discretion in denying Lee’s motion in full.” (Slip Opn., pp. 15-16.)