Grace v. Mansourian CA4/3 , 192 Cal. Rptr. 3d 551 ( 2015 )


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  • Filed 8/17/15 Grace v. Mansourian CA4/3
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
    publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
    or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FOURTH APPELLATE DISTRICT
    DIVISION THREE
    TIMOTHY GRACE et al.,
    Plaintiffs and Appellants,                                        G049590
    v.                                                            (Super. Ct. No. 30-2012-00578999)
    LEVIK MANSOURIAN et al.,                                               OPINION
    Defendants and Respondents.
    Appeal from an order of the Superior Court of Orange County, David T.
    McEachen, Judge. Affirmed in part and reversed and remanded in part.
    Lallande Law, M. Lawrence Lallande, Karina N. Lallande; and Steven B.
    Stevens for Plaintiffs and Appellants.
    Law Office of Steven D. Levine, F. Lee Christensen; Pollak, Vida &
    Fisher, Scott J. Vida and Daniel P. Barer for Defendants and Respondents.
    *                  *                  *
    After plaintiff Timothy Grace (plaintiff), and his wife, Michelle Blair
    (Michelle; collectively plaintiffs), prevailed on their personal injury action against
    defendants Levik Mansourian (defendant) and his mother, Satina Mansourian
    (collectively defendants), plaintiffs filed a motion seeking to recover costs of proof under
    Code of Civil Procedure section 2033.420 (all further statutory references are to this code
    unless otherwise stated) based on defendants’ failure to admit certain requests for
    admissions. Plaintiffs appeal from the trial court’s denial of the motion, arguing abuse of
    discretion. We conclude defendants had no reasonable basis to deny liability or
    plaintiff’s ankle injury and certain treatment for it. Therefore we reverse and remand for
    the court to determine the reasonable amount to be awarded plaintiffs for their costs of
    proving these issues. The order is otherwise affirmed.
    FACTS AND PROCEDURAL HISTORY
    1
    While driving into an intersection, defendant hit a car driven by plaintiff.
    Defendant told the traffic collision investigator, Linda Villelli (Villelli), that when he
    entered the intersection the light was yellow and he believed he could make it through
    before the light turned red. An eyewitness, Kathryn Napoli (Napoli), told Villelli
    defendant ran the red light. A few weeks after the accident, defendants’ insurance
    company recorded an interview with Napoli who said defendant ran the red light.
    Plaintiffs subsequently filed a personal injury action, alleging defendant hit
    plaintiff after running a red light. According to the complaint, plaintiff suffered injury to
    his ankle, back, and neck. Plaintiffs alleged plaintiff continues to have pain and will
    require treatment, and sought general and property damages, medical expenses, loss of
    use of property and earning capacity, wage loss, and loss of consortium.
    Plaintiffs served requests for admissions (requests) on defendants seeking
    admissions on negligence, causation, and damages. Plaintiffs asked defendants to admit
    1
    Defendant Satina Mansourian owned the car defendant was driving.
    2
    defendant failed to stop at the red light and that the failure was negligent, the actual and
    legal cause of the accident, and a “substantial factor” causing both the accident and
    plaintiffs’ damages, which included pain, suffering and emotional distress. Defendants
    were also asked to admit plaintiff was not negligent.
    Further, plaintiffs asked defendants to admit that, as a result of the accident,
    plaintiff was injured and needed medical treatment. Plaintiffs also sought admissions that
    all treatment was a result of the accident, that all treatment was necessary and within the
    standard of care, and that all medical bills were reasonable. Finally, plaintiffs asked
    defendants to admit plaintiff lost earnings as a result of the accident. Defendants denied
    2
    all of these requests.
    Defendants retained a medical expert, Robert Baird, M.D., who examined
    plaintiff and his medical records. He agreed plaintiff fractured his ankle in two places as
    a result of the accident and the ankle surgery was necessary. In his opinion, plaintiff
    would have no future problems with his ankle and would not require additional surgery in
    the future, contrary to the diagnosis of one of plaintiff’s doctors. Although Baird agreed
    plaintiff had suffered a strain or sprain of his neck and back, he disagreed any other neck
    and back pain were a result of the accident. He did not believe plaintiff’s back surgery
    was necessitated by the accident, and further opined the charges for plaintiff’s neck and
    back surgery were too high.
    Defendants filed two supplemental responses to the requests, one on the eve
    of trial, which repeated all of the past denials.
    To prepare for trial, plaintiffs deposed defendant, plaintiff, Villelli, and
    Napoli as to the issue of liability. Plaintiffs also retained and deposed an accident
    reconstruction expert.
    2
    Defendants did admit requests about the ownership and the identity of the
    drivers of the two vehicles involved in the accident.
    3
    As to causation and damages, plaintiffs deposed three medical experts, an
    ankle specialist and two spine specialists. Baird’s deposition was also taken.
    Prior to jury selection and empanelment the parties stipulated to plaintiff’s
    medical bills. A copy of the stipulation is not included in the record and it is not clear
    from the transcript who generated the bills and the amounts of the bills to which the
    parties agreed. The parties also stipulated to the amount of plaintiff’s lost earnings for
    the one and a half weeks he was out of work following the accident and for the one week
    he was off following his ankle surgery.
    At trial, plaintiffs called defendant, Napoli, and Villelli on the issue of
    liability, all of whom testified defendant ran the red light. Napoli testified that when she
    told Villelli defendant ran the red light, defendant asked, “‘I ran the red light?’” She
    replied, “‘Yes you did.’” Defendant did not say anything in reply.
    The reports and exhibits prepared by the accident reconstruction expert
    showing defendant was at fault were used at trial.
    Defendants did not offer any expert testimony as to liability nor any
    evidence on that issue other than defendant’s testimony. Defendant testified that as he
    was approaching the intersection the light was green. As he got closer to the intersection
    the light turned yellow. Plaintiffs introduced testimony from defendant’s deposition that
    he originally stated he was looking at the road. He later amended his testimony to say he
    was focused on both the road and the signal.
    In the opening statement, defendants’ lawyer stated the issue of liability
    was based on credibility. A witness “said that she saw [defendant] run the red light and,
    if that’s it, that’s it. [¶] [Defendant] believes, in his mind, that the light was yellow and
    he went through it and that’s his testimony. [¶] Now, we could sit there and say, well,
    there is a witness that said it was red, so just change your testimony, but he’s not going to
    do that. His testimony is he believes he had the yellow light. [¶] If that was a mistake on
    4
    his part, then that’s a mistake on his part, but that’s what he believes. He’s not going to
    testify differently.”
    The jury found defendant was negligent, awarding plaintiff just over
    $410,000, including approximately $147,000 for medical expenses, not quite $9,000 for
    lost earnings, and $255,000 for pain and suffering. It also awarded Michelle $30,000 for
    loss of consortium.
    Plaintiffs then filed a motion to recover expenses incurred in proving the
    facts defendants denied, seeking an award of almost $170,000 in attorney fees and just
    over $29,000 in costs. They argued defendants did not have a reasonable basis for
    denying the requests.
    The court denied the motion, concluding defendants did have a reasonable
    basis to deny the requests. As to negligence, the court found denial was proper because
    defendant reasonably believed he could prevail based on his memory he did not run a red
    light.
    As to causation, although defendants should have admitted plaintiff
    suffered injury to his ankle, based on Baird’s opinion and testimony it was reasonable for
    them to deny the extent of plaintiff’s claimed injuries and the necessity of all of his
    medical treatment. On that basis, it was also reasonable to deny treatment was within the
    standard of care. In addition, defendants “for the most part” stipulated to medical
    damages and lost wages.
    Finally, denial of the amount of damages was based on the same rationale
    as denial of causation. Because defendants believed plaintiff’s medical treatment other
    than for his ankle was not caused by the accident, amounts spent for other treatment were
    excessive and unreasonable. Further, since defendant did not believe he caused the
    accident, it was reasonable to deny the amount of damages.
    5
    DISCUSSION
    1. Applicable Law
    a. Purpose of Requests for Admissions
    “‘Requests for admissions . . . are primarily aimed at setting at rest a triable
    issue so that it will not have to be tried. . . . For this reason, the fact that the request is for
    the admission of a controversial matter, or one involving complex facts, or calls for an
    opinion, is of no moment. If the litigant is able to make the admission, the time for
    making it is during discovery procedures, and not at the trial.’ [Citation.]” (Bloxham v.
    Saldinger (2014) 
    228 Cal. App. 4th 729
    , 752; see § 2033.010.) In addition, a request may
    ask a party for a legal conclusion. (§ 2033.010; Garcia v. Hyster Co. (1994) 
    28 Cal. App. 4th 724
    , 733, 735 [request may seek admission party was negligent and
    negligence was legal cause of damages].)
    “‘[S]ince requests for admissions are not limited to matters within personal
    knowledge of the responding party, that party has a duty to make a reasonable
    investigation of the facts before answering items which do not fall within his personal
    knowledge. [Citations.]’” (Wimberly v. Derby Cycle Corp. (1997) 
    56 Cal. App. 4th 618
    ,
    634.)
    b. Award for Failure to Admit Requests for Admissions
    When a party propounds requests for admission of the truth of certain facts
    and the responding party denies the requests, if the propounding party proves the truth of
    those facts at trial, he or she may seek an award of the reasonable costs and attorney fees
    incurred in proving those facts. (§ 2033.420, subd. (a).) The court is required to award
    those costs and fees unless it finds the party who denied the requests “had reasonable
    ground to believe [he or she] would prevail on the matter” or “[t]here was other good
    reason for the failure to admit.” (§ 2033.420, subd. (b)(3), (4).) The court’s
    6
    determination of whether costs of proof should be awarded is reviewed for abuse of
    discretion. (Laabs v. City of Victorville (2008) 
    163 Cal. App. 4th 1242
    , 1275-1276.)
    “In evaluating whether a ‘good reason’ exists for denying a request to
    admit, ‘a court may properly consider whether at the time the denial was made the party
    making the denial held a reasonably entertained good faith belief that the party would
    prevail on the issue at trial.’ [Citation.]” (Laabs v. City of 
    Victorville, supra
    , 163
    Cal.App.4th at p. 1276.)
    Plaintiffs must show they spent the amounts claimed to prove the issues
    defendants should have admitted. (§ 2033.420, subd. (a); Garcia v Hyster 
    Co., supra
    , 28
    Cal.App.4th at p. 737 [declaration setting out attorney’s hourly fees and costs of proof
    required].) The requested amounts must be segregated from costs and fees expended to
    prove other issues. (See Wimberly v. Derby Cycle 
    Corp., supra
    , 56 Cal.App.4th at p.
    638; Brooks v. American Broadcasting Co. (1986) 
    179 Cal. App. 3d 500
    , 512.)
    Costs of proof are recoverable only where the moving party actually proves
    the matters that are the subject of the requests. (§ 2033.420, subd. (a).) This means
    evidence must be introduced. (See Evid. Code, § 190 [definition of proof];Weil &
    Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2015) ¶
    8:1405.3, p. 8G-35.) Further, those amounts cannot be awarded if the parties stipulated
    to facts, even if the responding party had previously denied them. (Stull v. Sparrow
    (2001) 
    92 Cal. App. 4th 860
    , 867-868; Wagy v. Brown (1994) 
    24 Cal. App. 4th 1
    , 6
    [“Expenses are recoverable only where the party requesting the admission ‘proves . . . the
    truth of that matter,’ not where that party merely prepares to do so”].) The purpose of
    requests for admissions is to expedite trial and a stipulation achieves that goal. (Stull v.
    Sparrow, at p. 867.)
    7
    2. Defendants’ Denial of the Requests
    a. Liability
    Defendants denied requests defendant failed to stop at the red light, that this
    conduct was negligent, and that it was the actual and legal cause of the accident.
    Defendants relied on defendant’s belief he had entered the intersection on a yellow light.
    In denying plaintiffs’ motion the trial court ruled the denial was proper because
    defendants reasonably thought they could prevail based on defendant’s belief about the
    color of the light when he entered the intersection. Defendants argue that belief was
    sufficient to support their denial and the court’s finding. We disagree.
    There was substantial contrary evidence supporting liability. This included
    plaintiff’s testimony defendant ran the red light, the police report, which found defendant
    3
    was at fault, Napoli’s statement defendant ran the red light, and plaintiffs’ accident
    reconstruction expert who opined defendant was at fault. Moreover, defendants did not
    designate an expert nor did they depose plaintiffs’ expert.
    In light of all of this evidence, defendant’s belief, however firmly held, was
    not reasonable. The question is not whether defendant reasonably believed he did not run
    the red light but whether he reasonably believed he would prevail on that issue at trial. In
    light of the substantial evidence defendant ran the red light, it was not reasonable for him
    to believe he would. We do not quarrel with the general proposition defendants cite that
    the testimony of even one credible witness can be substantial evidence. But, again, that is
    not the issue.
    3
    Defendants note Napoli’s statement was unsworn and not admitted into
    evidence. That is not the point. What matters is that defendants knew of the contents of
    the statement at the time they denied the requests. Likewise, that the police report is
    hearsay is of no moment. The issue is the extent of defendants’ knowledge of the
    substantial evidence he ran the red light, and, but for his perception, the lack of evidence
    supporting his position.
    8
    In Wimberly v. Derby Cycle 
    Corp, supra
    , 
    56 Cal. App. 4th 618
    , the trial
    court denied the plaintiff’s motion for costs of proof. The court of appeal reversed, ruling
    that at the time the defendant denied the requests regarding a product defect and
    causation, it had no reasonable basis to believe it could prevail on those issues at trial.
    (Id. at p. 638.) It failed to designate its own expert and should have known it would be
    unable to use certain deposition testimony of the plaintiff’s expert. In short, the
    defendant produced no evidence to support its position. This was not a sufficient basis to
    deny the requests.
    The trial court here distinguished Wimberly, noting defendants did offer
    evidence as to liability, i.e., defendant’s testimony. Thus, it held Wimberly did not apply.
    Defendants, too, take issue with Wimberly, arguing they should not be required to present
    expert testimony to substantiate defendant’s version of the accident to avoid being liable
    for costs of proof.
    But neither Wimberly nor any other case the parties cited absolutely require
    expert testimony. Nevertheless defendants did have a duty to investigate. (See Bloxham
    v. 
    Saldinger, supra
    , 228 Cal.App.4th at p. 752 [cost of proof award proper when
    responding party who fails to investigate denies requests for lack of information and
    belief].) And the mere fact defendants presented evidence at trial is not an automatic
    justification for denial of the requests. Rather, the issue is whether, in light of that
    evidence, defendants could reasonably believe they would prevail.
    In Brooks v. American Broadcasting 
    Co., supra
    , 
    179 Cal. App. 3d 500
    , in a
    vehicle accident case, the police report determined the plaintiff’s truck had been over the
    centerline. The trial court awarded costs of proof after finding the plaintiff unreasonably
    denied he was over the centerline. The court relied on the fact the plaintiff’s lawyer did
    not speak to the officers who completed the report because he “‘assumed’” the report was
    ambiguous. (Id. at p. 512.) Moreover, plaintiff did not contest that issue during trial.
    9
    The trial court here distinguished Brooks because here there was no
    physical evidence showing defendant ran the red light. Further, plaintiffs did not prove
    defendants failed to depose Napoli.
    Defendants argue that in Brooks the physical evidence contradicted the
    driver’s perception of what had occurred and the plaintiff failed to investigate. They
    conclude that in the case before us, the evidence was merely defendant’s view of what
    occurred versus Napoli’s.
    But that does not take into account all of the evidence, which includes not
    only Napoli’s perception but the police report and the expert’s opinion. Moreover, in
    neither Brooks nor Wimberly does the court state the factors it relied on are exclusive and
    conclusive. In fact, in Brooks the court explicitly stated it had not “attempted to
    absolutely define and limit the factors which may properly be considered” (Brooks v.
    American Broadcasting 
    Co., supra
    , 179 Cal.App.3d at p. 511) but had merely “set forth
    general rules and guidelines which should be considered” (ibid.) when a party is
    responding to requests and a court is exercising its discretion in ruling on a motion for
    costs of proof.
    Defendants contend a party’s “mere refusal to concede an issue” and
    requiring the opposing party to prove it should not be a sufficient basis for a costs of
    proof award. The statute states otherwise. Obviously, a defendant “cannot be forced to
    admit the fact prior to trial despite its obvious truth. [Citation.]” (Smith v. Circle P
    Ranch Co. (1978) 
    87 Cal. App. 3d 267
    , 273.) But the failure to do so comes with
    consequences, exposure to a costs of proof award.
    The purpose of requests for admissions is to expedite trial by “setting at rest
    a triable issue so that it will not have to be tried.” (Cembrook v. Superior Court (1961)
    
    56 Cal. 2d 423
    , 429; Bloxham v. 
    Saldinger, supra
    , 228 Cal.App.4th at p. 752.) If there
    10
    was no reasonable basis to deny the requests, as was the case as to liability here, then that
    is exactly why an award is proper.
    Nor are we persuaded by defendants’ assertion they did not have to make a
    “‘premature admission[]’” but could wait until trial and even after all the evidence had
    been admitted to concede liability. This may be correct in some circumstances but here,
    with the exception of the additional opinion of liability from the accident reconstruction
    expert, the evidence of liability did not change from the time of the accident until the
    conclusion of trial.
    To justify denial of a request, a party must have a “reasonable ground” to
    believe he would prevail on the issue. (§ 2033.420, subd. (b)(3), italics added; see
    Brooks v. American Broadcasting 
    Co., supra
    , 179 Cal.App.3d at p. 511 [party must have
    a “reasonably entertained good faith belief” it will prevail].) That means more than a
    hope or a roll of the dice. In light of the substantial evidence defendant was at fault, plus
    defendants’ apparent understanding of the weakness of their position, as evidenced in
    their opening statement, defendants’ sole reliance on defendant’s perception he entered
    the intersection on a yellow light was not a reasonable basis to believe they would
    prevail.
    Thus, plaintiffs were entitled to their reasonable costs and attorney fees
    associated with proving liability and the court erred in denying them.
    b. Causation and Damages
    Plaintiffs sought to have defendants admit the accident caused all of
    plaintiff’s injuries. They also asked defendants to admit all treatment was necessary and
    all medical bills were reasonable.
    The trial court found that, although defendants should have admitted
    plaintiff’s ankle injury, defendants could rely on Baird’s opinion and reasonably deny
    both the extent of plaintiff’s injuries and the necessity of all of his medical treatment.
    11
    The trial court also found defendants generally stipulated to medical damages and lost
    wages.
    In addition the trial court ruled that, other than for plaintiff’s ankle, it was
    reasonable for defendants to deny the reasonableness of treatment and its cost. Finally,
    because defendants did not believe defendant had caused the accident, they reasonably
    could deny the amount of damages.
    When he testified, Baird agreed plaintiff injured his ankle in the accident,
    required initial treatment, the surgery, and resulting therapy. He considered the time
    plaintiff took off to recover from the surgery reasonable. On the basis of their expert’s
    opinion, defendants should have admitted these facts.
    We cannot determine from the record, however, whether plaintiffs are
    entitled to any costs of proof based on the pretrial stipulation to plaintiff’s medical bills.
    If the stipulation included the bills for treatment of the ankle injury listed above, plaintiffs
    are not entitled to an award for those amounts. (Stull v. 
    Sparrow, supra
    , 92, Cal.App.4th
    at pp. 867-868.) If not, the trial court shall determine the amount to which they are
    entitled.
    Further, on the basis of the stipulation, plaintiffs are not entitled to recover
    costs of proof of plaintiff’s lost earnings for the time immediately following the accident
    and after the ankle surgery.
    In addition, based on Baird’s opinions, it was reasonable for defendants to
    deny the necessity of future ankle surgery, back surgery, associated costs for and
    treatments of plaintiff’s neck, and for any future lost wages that might result from those
    surgeries and treatment. Thus, plaintiffs are not entitled to the costs of proof of those
    items.
    12
    DISPOSITION
    The order denying an award of costs of proof as to liability, injury to
    plaintiff’s ankle, and the ankle surgery and associated treatment is reversed. The case is
    remanded for the trial court to determine the amount to which plaintiffs are entitled for
    proof of liability. If defendants did not stipulate to the amount of medical bills for the
    initial treatment of the ankle injury and the ankle surgery and follow-up treatment, the
    trial court shall also determine the amount to which plaintiffs are entitled to prove these
    issues. In all other respects the order is affirmed. The parties shall bear their own costs
    on appeal.
    THOMPSON, J.
    WE CONCUR:
    ARONSON, ACTING P. J.
    IKOLA, J.
    13
    

Document Info

Docket Number: G049590

Citation Numbers: 240 Cal. App. 4th 523, 192 Cal. Rptr. 3d 551, 2015 Cal. App. LEXIS 815

Judges: Thompson, Aronson, Ikola

Filed Date: 8/17/2015

Precedential Status: Non-Precedential

Modified Date: 10/19/2024