Case Number: BC638377 Hearing Date: August 08, 2018 Dept: 32

BONGSANG YEO,

Plaintiff,

v.

PARK DAE GAM NE INC., et. al.,

Defendants.

Case No.: BC638377

Hearing Date: August 8, 2018

[TENTATIVE] order RE:

MOTION FOR ATTORNEY’S FEES PURSUANT TO CCP 2033.420

BACKGROUND

This is an action for unpaid wages. Plaintiff Bongsang Yeo (“Plaintiff”) alleges that she was employed as a cook and butcher for Defendants Park Dae Gam Ne, Inc. and Jenee Y. Kim (“Defendants”). Plaintiff alleges that his employment was governed by IWC Order No. 5-2001 and 8 CCR § 11050, which regulate the “Public Housekeeping Occupations” industry.

On April 25, 2018, the action came on regularly for trial before a jury. After hearing the evidence and arguments, the jury was duly instructed by the Court and the case was submitted to the jury with directions to return a verdict on whether Plaintiff was exempt from overtime pay or was not exempt. The jury found that Bongsang Yeo was an exempt employee under the executive exemption between October 26, 2013 to October 2016. By reason of said verdict, the Court found that Defendant was entitled to judgment against Plaintiff Bongsang Yeo. The Court held that Plaintiff would take nothing from Defendant, and Defendant was entitled to its costs. (Judgment on Jury Verdict 5/15/18).

ANALYSIS

“If a party fails to admit the genuineness of any document or the truth of any matter when requested to do so under this chapter, and if the party requesting that admission thereafter proves the genuineness of that document or the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney’s fees.” (CCP § 2033.420(a). The court shall make this order unless it finds any of the following: (1) the admission sought was of no substantial importance; (2) the responding party had reasonable ground to believe that it would prevail on the matter; or (3) there was other good reason for the failure to admit. (§2033.420(b).)

If a party denies request for admission of substantial importance under circumstances where party lacked personal knowledge but had available sources of information and failed to make reasonable investigation to ascertain facts, such failure justifies award of expenses under §2034(c) on basis that party had no good reasons for denial of request for admission. (Brooks v. American Broadcasting Co. (1986) 179 Cal.App.3d 500, 511.)

Defendant states that on August 31, 2017, Defendant served Plaintiff with its first set of Requests for Admission. Defendant contends that Plaintiff had no reason to deny RFA No. 1-9 when he knew that his employment with Defendant was as a head chef, and not a cook. Defendant contends that the admissions were of substantial important because they related to whether Plaintiff was an exempt worker. Defendant contends that Plaintiff knew he was exempt from overtime and he knew his role was as head chef at the time he denied the RFAs.

In opposition, Plaintiff contends he had a reasonable ground to believe that he would prevail on the matter at trial. Plaintiff contends that in Rihyun Park’s deposition testimony Mr. Park stated that Plaintiff was replaced by a man named Roberto who was a butcher. (Exh B Park Depo 97:1-16, 98:6-8; 112:22-25) Plaintiff contends because he was replaced by a butcher, he was basically a butcher when he worked for Defendant. Additionally, Plaintiff set forth additional witness testimony that he was actually a butcher. (Exh C Casetellon Depo 50:19-22; 104:4-5; Tala Depo 113:13-19.) Plaintiff also contends that he provided detailed responses to Form Interrogatory 17.1 (Exh. A.) Additionally, Plaintiff contends that Defendant’s conclusory statements regarding hourly fees and time spent to “prove” the specific matters denied are insufficient because Defendant failed to state the exact amount of time spent for each RFA.

In reply, Defendant states their request was limited to trial preparation and intentionally excluded the day to day billing normally arising out of a litigation case and was limited to only the main attorney.

Defendant does not attach billing records and invoices for the Court’s consideration. (See ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020.)

The Court finds based on the foregoing, that the responding party had reasonable ground to believe that it would prevail on the matter and as such does not impose sanctions under CCP §2033.420. The motion is DENIED.