The mechanisms available for recovering attorney's fees are a factor routinely considered by parties to litigation and their counsel. The topic is of sufficient import that a new blog, California Attorney's Fees, is dedicated to that one area of practice. Given the elevated fees incurred in class actions and complex litigation generally, the issue of fee recovery is magnified in importance. In Laabs v. City of Victorville (June 12, 2008) ___ Cal.Rptr.3d ___, the Fourth Appellate District, Division Two, reviewed a mechanism for recovering fees that has moved into the spotlight in recent weeks, the "cost of proof" fee recovery provision of Code of Civil Procedure section 2033.420.
Plaintiff (and minor) Amanda Laabs was injured in an automobile collision. She sued various governmental entities, alleging a dangerous condition of public property. The City moved for summary judgment, which the court granted. The court subsequently denied the City’s motion for expenses incurred in proving matters that plaintiff had denied (pursuant to Code of Civil Procedure section 2033.420).
On the issue of "cost of proof" fees, the Court stated the statutory rule:
“Under Code of Civil Procedure section 2033.420, a party that denies a request for admission may be ordered to pay the costs and fees incurred by the requesting party in proving that matter. The court “shall” order the payment of such fees and costs unless it finds: (1) that an objection to the request was sustained or a response to the request was waived; (2) the admission sought was of no substantial importance; (3) the party failing to make the admission had reasonable ground to believe that the party would prevail on the matter; or (4) there was other good reason for the failure to admit the request.
(Slip op., at pp. 49-50.) Then, examining various requests at issue, the Court, relying upon Brooks v. American Broadcasting Co. (1986) 179 Cal.App.3d 500 [interpreting former Code of Civil Procedure section 2034], concluded that three requests were not of substantial importance to the matter at issue (government liability) and, as to the remainder, the plaintiff had a reasonable basis for denying the requests. (Slip op., at pp. 50-51.)
Several points are worth noting. First, this matter provides an interesting couterpoint to the unpublished decision outcomes discussed by California Attorney's Fees in posts on June 6 and June 11. But the fact that fees were awarded in the two cases discussed by California Attorney's Fees, and not in this case, only serves to highlight the need for care when denying Requests for Admissions; the recovery of fees will place tremendous discretion in the hands of the trial court judge. And it was a close call in this matter - the decision was 2-1, with an extensive dissent on the attorney's fee issue. Third, it didn't hurt the Plaintiff's chances of getting the benefit of the doubt on appeal that she was a minor.
It's easy to overlook Requests for Admissions as a litigation tool, especially in complex matters. Don't.