Case Number: BC633969 Hearing Date: October 16, 2018 Dept: 2

Motion by Defendants, Tuesday English-Pavey and Michael Pavey, for Order Requiring Payment of Expenses Incurred in Proving Truth of Matter Not Admitted, filed on 8/1/18, is GRANTED.

Defendants move for attorney’s fees incurred for the costs of proving the issues sought to be established by way Request for Admissions served on Plaintiff. Plaintiff denied the requests concerning issues probative of Defendants’ liability.

Cal. Code Civ. Proc. § 2033.420 permits an award of attorney’s fees incurred in proving the genuineness of any document or truth of a matter where a party fails to admit it in response to Requests for Admission. Cal. Code Civ. Proc., § 2033.420

The court shall award fees unless, among other things, it finds that the Plaintiff, as the party failing to make the admission, had reasonable ground to believe that he would prevail on the matter, or there was other good reason for the failure to admit, among other things. Cal. Code Civ. Proc. § 2033.420.

Defendants may properly move for an award of fees after a motion for summary judgment is granted in their favor. Barnett v. Penske Truck Leasing (2001) 90 Cal.App.4th 494, 499.

The issues need not be proved at trial. Defendants “prove” the issue for purposes of an award of fees under Section 2033.420 if they successfully move for summary judgment establishing that there is no triable issue as to any material fact, and that Defendants are entitled to judgment as a matter of law. Barnett at 497-98.

Defendants served Plaintiff with Requests for Admissions on 1/12/18, asking Plaintiff to admit that Defendants did not breach a duty of care, that Defendants lacked awareness of the dog’s vicious propensity, and that Defendants did not own the dog, among other things. Motion, Exhibits A and B. Plaintiff denied all requests. Motion, Exhibits C and D.

On 3/23/18, Defendants filed their Motion for Summary Judgment asserting that Defendants did not owe a duty to protect Plaintiff from a co-Defendant’s dog since Defendants did not own the dog or have any prior awareness of the dog’s aggressive tendencies.

On 7/13/18, the Court GRANTED Defendants’ Motion for Summary Judgment finding no triable issues of material fact asserted by Defendants. Pursuant to Barnett, a party who “successfully moves for summary judgment proves the facts in issue by submitting papers that ‘show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’” (§ 437c, subd. (c).)” Barnett at 497–98.

Plaintiff cites State ex rel. Dockstader v. S.J. Amoroso Const. Co., Inc. (Cal. Ct. App., Aug. 26, 2008, No. B197343) 2008 WL 3906556, which is unpublished and not citable. It is also inapposite as in that case, Defendant moved for cost-of-proof fees after the court sustained their demurrer to the Plaintiff’s complaint. A demurrer does not require proof, and as such, Defendant was not entitled to fees under Section 2033.420. Id at *15.

Plaintiff has not argued any exception which would permit denial of an award of fees such as:

“(1) An objection to the request was sustained or a response to it was waived under Section 2033.290.

(2) The admission sought was of no substantial importance.

(3) The party failing to make the admission had reasonable ground to believe that that party would prevail on the matter.

(4) There was other good reason for the failure to admit.” Code Civ. Proc., §2033.420

Defendants ask for $10,360 in fees for preparing the entire Motion for Summary Judgment and to prepare and attend the hearing at $185 per hour. However, included is time spent opposing Plaintiff’s ex parte application to continue the Motion for Summary Judgment. This time is not recoverable, since it was not incurred to “prove” the Request for Admissions. Rather, it was an issue collateral to the Motion for Summary Judgment and was unrelated to the issue of proof. Accordingly, the court awards the reduced fees amount of $7,363.00 in favor of Defendants and against the Plaintiff, payable within forty-five (45) days. Cal Code Civ. Proc. § 2033.420.

Moving party is ordered to give notice.