CASE#: MSC08-02958
CASE NAME: VALLEY COMMERCIAL VS WINDSOR
HEARING ON MOTION TO/FOR ATTORNEYS FEES FILED BY VALLEY
COMMERCIAL CONTRACTORS, VOIT/DEWEESE, INC, LIBERTY MUTUAL
* TENTATIVE RULING: *

The motion for attorneys’ fees by plaintiff Valley Commercial Contractors, L.P. (“Valley”) is denied.

As a preliminary matter, the court notes that it exercises its discretion to consider the opposition filed by defendant and cross-complainant Windsor Walnut Creek Apartments, LLC and defendant Windsor Capital Group, LP (together “Windsor”), despite Windsor’s failure to electronically serve its opposition in accordance with the e-filing order in this case and the late service. Service on Valley, although late, allowed Valley adequate time to prepare its reply.

In its opening brief, Valley states two grounds for its motion for fees, asking for an award of fees under Civil Code Section 8800, and for fees under Code of Civil Procedure Section 2033.420 (a).

The court has already held, in its ruling on Valley’s motion for prejudgment interest, that the money owed to Valley was subject to a good faith dispute such that Civil Code Section 8800 (c), allowing for an award of prejudgment interest as a penalty, does not apply. January 28, 2014 Tentative Ruling; Order entered February 20, 2014. The same ruling applies to defeat Valley’s request for attorneys’ fees under the same provision, and Valley, in its reply, no longer requests an award of fees under Section 8800.

This leaves Valley with its claim for fees pursuant to Code of Civil Procedure Section 2033.420. Under that section, “[i]f 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.” Code of Civil Procedure §2033.420 (a). Valley seeks attorneys’ fees for the costs of proving matters due to Windsor’s failure to admit Valley’s requests for admission numbers 1, 2, 3, 4, 5, 10, 11, 14, 15, 22, 23, 24 and 33. Motion for Attorneys’ Fees, p. 4.

Windsor argues, in opposition to the motion, that cost of proof expenses, including fees, are awardable only where the responding party has failed to admit a request for admission – not where the responding party has objected or otherwise failed to make a complete answer, unless the proponent has moved to compel a further response. Wimberly v. Derby Cycle Corp., (1997) 56 Cal.app. 4th 618, 636; American Federation of State, County & Municipal Employees v. Metropolitan Water Dist. (2005) 126 Cal.App. 4th 247, 268. Moreover, Valley argues, even when there has been an unequivocal denial, fees cannot be awarded if the responding party had a reasonable ground for believing it would prevail on the matter. Code of Civil Procedure Section 2033.420 (b)(3); Laabs v. City of Victorville (2008) 163 Cal.App. 4th 1242, 1276.

Here, of the requests for admission at issue, Windsor denied requests 1, 2, 3 and 4. Windsor objected to requests 10, 11, 14, 22 and 24. In response to requests 5, 15, 23 and 33, Windsor admitted the existence of documents responsive to the requests. Responses to Requests for Admission, Exhibit M to Exhibit Index in support of motion for attorneys’ fees.

Valley does not argue that it moved to compel further responses as to any of the requests at issue. Nor does Valley cite any authority to support its argument that fees can be awarded where the responding party objected to the request and there was no motion to compel. Valley instead argues that the holding in Wimberly misreads the statute. This court, however, is bound by the authority of the appellate courts as to statutory interpretation. Here, the court in Wimberly looked to the provision of Section 2033.420 that makes an exception to the requirement that fees and costs be awarded if a response to an objection has been waived (as by the failure to move to compel further response). Wimberly, supra, at 634 and 636. Valley cannot, pursuant to that provision, recover attorneys’ fees for costs of proof on the requests for admission to which Windsor objected (requests 10, 11, 14, 22 and 24).

Nor will the court award fees for Valley’s costs in proving those matters where Windsor’s response pointed to the relevant documents. These responses were not “failures to admit” the truth of the matters at issue; they were admissions incorporating the referenced documents to show the content of the agreements or communications at issue.

Finally, as to Windsor’s unequivocal denials in response to requests for admission numbers 1, 2, 3 and 4, the court finds that Windsor had reasonable ground for its belief that it would prevail on these matters. Requests 1 and 2 asked Windsor to admit that Valley was not liable to Windsor for breach of contract (as alleged in the cross-complaint) and that Windsor was not harmed by Valley’s alleged conduct as stated in support of the breach of contract cause of action. Similarly, requests 3 and 4 asked Windsor to admit that Valley was not liable to Windsor for negligence and that Windsor had not been harmed by the allegedly negligent conduct. Responses to Requests for Admission, Exhibit M to Exhibit Index in support of motion for attorneys’ fees. As Windsor argues in its opposition, at the point at which these requests were served, more than two years before trial, Windsor had reasonable grounds to believe it would prevail on its cross-claims. Valley’s motion for the costs of proof related to these requests for admission is therefore denied.

Because the court denies Valley’s motion on this basis, the court does not reach Windsor’s other arguments against the motion for attorneys’ fees. The court notes, however, that Valley fails to provide any explanation of how it arrived at the number of hours worked attributed to costs of proof due to Windsor’s failures to admit certain matters.. Without this information, even if the court were inclined to award fees, it would have no way to know what fees were reasonable for the costs of proving the matters at issue. Moreover, Valley improperly relies on invoices submitted to the court for in camera review, but not provided to Windsor, as the documentation for its request. Concepcion v. Amscan Holdings, Inc. (2014) 223 Cal.App. 4th 1309, 1325.

Evidentiary Rulings:

Valley’s Request for Judicial Notice is granted. Evidence Code §452 (d).
Valley’s Request for Judicial Notice submitted with its reply is granted. Evidence Code §452 (d).

Windsor’s Objections:

Objections to the Declaration of William S. Kronenberg:
Objection 1 : Overruled.
Objections 2-6: Sustained. Mr. Kronenberg fails to provide documentation of the fees summarized in these paragraphs. Submission of invoices for in camera review, where those invoices are not provided to opposing counsel, is not sufficient. Concepcion v. Amscan Holdings, Inc. (2014) 223 Cal.App. 4th 1309, 1325.

Objections to the Declaration of Steven Yuen:
Objection 1: Overruled.
Objection 2: Sustained. Lack of foundation.

Objections to the Declaration of Paul Fife:
Objections 1 and 2: Sustained. Mr. Fife does not provide documentation of the fees summarized.

Valley’s Objection No. 1: Overruled.