Fuller v. Campos CA2/2 ( 2020 )

Filed 12/24/20 Fuller v. Campos CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
BERTRAM FULLER, B296403
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YC069237)
v.
YUNUEN N. CAMPOS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Ramona G. See, Judge. Affirmed.
Magnanimo & Dean, Lauren A. Dean and Frank A.
Magnanimo for Defendant and Appellant.
Holmes, Taylor, Cowan & Jones, Andrew B. Holmes and
Patrick V. Chesney for Plaintiff and Respondent.
******
The trial court awarded $44,242.50 in attorney fees to a
party who proved at trial the truth of three requests for
admission the responding party failed to admit. Because the
court did not abuse its discretion in awarding these costs of proof,
we affirm.
FACTS AND PROCEDURAL BACKGROUND
Bertram Fuller (boyfriend) and Yunuen Campos (girlfriend)
dated from 2005 to 2010. “While they dated, girlfriend would ask
boyfriend to borrow money. Boyfriend obliged, and made a series
of interest free loans to her that, in total, came to more than
$110,000, which was effectively boyfriend’s ‘life savings.’”
Boyfriend sued girlfriend for (1) breach of contract, (2)
money lent, (3) fraudulent inducement of contract, (4) intentional
misrepresentation, and (5) trespass to chattels for girlfriend’s
alleged “key[ing]” of boyfriend’s car after he started dating
another woman.
Boyfriend served girlfriend with three requests for
admission (RFAs) related to the breach of contract and money
lent claims: (1) “Admit that between 2005 and May 2010, YOU
borrowed in excess of $100,000 from Plaintiff”; (2) “Admit that
YOU have borrowed money from Plaintiff”; (3) “Admit that YOU
have never repaid any of the money YOU borrowed from
Plaintiff.” Following boilerplate objections, girlfriend responded
to each RFA with a denial.
The case proceeded to an eight-day bench trial. With only
boyfriend’s breach of contract and money lent claims remaining,1
1 The trial court granted girlfriend’s motion for summary
adjudication of the trespass to chattels claim and midtrial motion
for judgment on the fraud in the inducement and intentional
misrepresentation claims.
2
girlfriend rested her case without calling any witnesses or
presenting any evidence. The trial court found in favor of
boyfriend and awarded him $111,325 in damages for the unpaid
loans.
Boyfriend moved for an award of costs—namely, attorney
fees—he incurred to prove at trial the existence of the loans
girlfriend had denied in the RFAs. His counsel submitted a
declaration stating that he (1) billed boyfriend at a discounted
rate of $425 per hour, and (2) spent 104.1 hours to prove up the
loans, consisting of (a) 17 hours preparing for and taking
girlfriend’s deposition and moving to compel her answers to
certain deposition questions, (b) 16 hours preparing for and
defending boyfriend’s deposition, (c) 21.2 hours on third-party
discovery, including opposing girlfriend’s motions to quash, (d)
19.5 hours preparing evidence of the loans for trial, and (e) 30.4
hours presenting testimony and evidence of the loans at trial.
After further briefing and a hearing, the trial court granted
boyfriend’s motion for $44,242.50 in costs of proof because “the
RFAs were directed specifically to the central issues involved in
th[e] case,” girlfriend had no “reasonable ground to believe the
denials,” and boyfriend “satisfied” his “burden” “by presenting a
declaration from counsel” that sought fees tied solely to “the time
spent to prove the specific matters [girlfriend] denied.”
Girlfriend filed this timely appeal.
DISCUSSION
Code of Civil Procedure section 2033.420 mandates an
award of “reasonable expenses . . . including . . . attorney’s fees”
to a party who propounds a request for admission and ultimately
proves the truth of the matter in the request after the responding
3
party denies it.2 (Code Civ. Proc., § 2033.420, subds. (a) & (b)
[court “shall” order cost-of-proof award].) There is good reason to
impose costs on the party who fails to admit a request for
admission that is later proven because the “primary purpose” of
that discovery mechanism is to eliminate “triable issues” and
thereby “expedit[e]” trial. (City of Glendale v. Marcus Cable
Associates, LLC (2015) 235 Cal.App.4th 344, 353-354; Brooks v.
Am. Broad Co. (1986) 179 Cal.App.3d 500, 509.) We review an
appeal from an award setting the amount of costs of proof for an
abuse of discretion. (Orange County Water Dist. v. The Arnold
Engineering Co. (2018) 31 Cal.App.5th 96, 118; see also City of
Colton v. Singletary (2012) 206 Cal.App.4th 751, 784 (Singletary)
[abuse of discretion when reviewing sufficiency of evidence
supporting attorney fee award].)
The trial court did not abuse its discretion in awarding
boyfriend all of the costs he requested in connection with proving
up the loan-related RFAs. By way of his counsel’s declaration,
boyfriend satisfied his burden of establishing that his costs were
limited to those incurred after girlfriend served her denials of the
RFAs (Garcia v. Hyster (1994) 28 Cal.App.4th 724, 736 (Garcia)
[expenses incurred prior to denials not recoverable]; Wimberly v.
Derby Cycle Corp. (1997) 56 Cal.App.4th 618, 638 [same]), and
2 The party who denied the proven request for admission
may avoid this award if (1) an objection was sustained or a
response waived, (2) the request was of no substantial
importance, (3) the party had reasonable ground to believe that
she would prevail on the matter, or (4) there was other good
reason for the failure to admit. (Code Civ. Proc., § 2033.420,
subd. (b).) Girlfriend argued the third basis in opposition to
boyfriend’s motion below, but has abandoned that argument on
appeal.
4
the costs were “segregated” from those “expended to prove other
issues” (Grace v. Mansourian (2015) 240 Cal.App.4th 523, 529
(Grace)). The trial court did not err—let alone abuse its
discretion—in crediting counsel’s explanation of the hours he
devoted to proving up the three RFAs girlfriend denied. (See
Singletary, supra, 206 Cal.App.4th at p. 785 [verified statements
of an attorney, as an officer of the court, are entitled to
credence].)
Girlfriend argues that the declaration supporting
boyfriend’s motion (1) was “woefully inadequate” and
“conclusory,” and (2) included non-compensable costs incurred on
issues unrelated to the loans; these defects are so egregious,
girlfriend continues, that boyfriend’s motion should have been
denied in its entirety. Girlfriend’s arguments ignore the law and
the record. To be sure, boyfriend’s counsel did not accompany his
declaration with itemized billing statements. But that is not
what the law requires. (Grace, supra, 240 Cal.App.4th at p. 529;
Garcia, supra, 28 Cal.App.4th at p. 737; see also Chavez v.
Netflix, Inc. (2008) 162 Cal.App.4th 43, 64 [billing statements not
required to support class action fee award]; Cellphone
Termination Fee Cases (2009) 180 Cal.App.4th 1110, 1119 [same];
Singletary, supra, 206 Cal.App.4th at p. 786 [“lack of billing
statements does not automatically establish that there was
insufficient evidence”].) And nothing in the declaration supports
girlfriend’s assertion that the award lumped in costs unrelated to
proving the three RFAs at issue.3 Indeed, boyfriend’s counsel
3 Girlfriend claims boyfriend conceded that 9.1 hours were
not spent to prove the RFAs, but this is a misstatement of the
record: Boyfriend parsed out these hours to assist the trial court
5
confirmed that each category of work totaling the 104.1 hours’
worth of costs awarded was “spent dealing with loan-related
issues” or otherwise “regarded the loans.” Girlfriend refers to
irrelevant motions, or irrelevant portions of motions, in an effort
to undermine counsel’s declaration, but these attacks are, at
bottom, attacks on the trial court’s assessment of counsel’s
credibility. We may not, and will not, reweigh that assessment.
(Weber v. Langholz (1995) 39 Cal.App.4th 1578, 1587; Christian
Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1323.)
if the court accepted girlfriend’s argument that his motion to
compel her deposition answers was not related to the loans.
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DISPOSITION
The order is affirmed. Boyfriend is entitled to his costs on
appeal.4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
ASHMANN-GERST
_________________________, J.
CHAVEZ
4 Boyfriend requests that we also award him reasonable
attorney fees on appeal. While “[a] statute authorizing an
attorney fee award at the trial court level includes appellate
attorney fees unless the statute specifically provides otherwise”
(Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1499), Code of Civil
Procedure section 2033.420 does not authorize an award of fees
incurred in connection with bringing the costs-of-proof motion (as
opposed to authorizing an award of the costs of proof themselves).
Thus, boyfriend failed to identify a basis for recovery of attorney
fees on appeal.
7