2015-00183347-CU-PA

Kevin Shipp vs. George Smithson

Nature of Proceeding: Motion for Award of Cost of Proof Sanctions

Filed By: Goodman, Mark A.

Defendant Western Engineering Contractor, Inc.’s (“Defendant”) Motion for Award of Cost of Proof Sanctions pursuant to CCP 2033.420 is denied.

Defendant’s seeks cost of proof sanctions in the total amount of $26,337 on the grounds that plaintiff denied the truth of matters specified in five requests for admissions. Western contends that it “proved” the truth of those matters in the Motion for Summary Judgment filed by Western and other defendants. The Court granted the defendants’ motion for summary judgment on November 1, 2017.

This case arises from a rear-end auto accident occurring on a two lane road, Latrobe Road, on August 23, 2013, in which Plaintiff sustained personal injuries. Defendant George Smithson (hereinafter “Smithson”) rear ended plaintiff causing plaintiff to hit the two cars in front of him that had stopped at the intersection with Ryan Ranch Road. At the time of the accident, Western and its employees were performing highway construction work pursuant to a contract with the County of El Dorado. Plaintiffs’ allege

in their complaint for negligence and loss of consortium that Western and its employees (named as individual defendants) were negligent by creating a dangerous condition of public property due to the placement of a “flagging station” which permitted northbound traffic on Latrobe to clog the Ryan Ranch Road intersection, requiring southbound traffic to back up if a vehicle needed to make a left turn across the northbound traffic.

Plaintiffs’ contend that Western caused northbound traffic on Latrobe Road to block the Ryan Ranch Road intersection, which prevented a car from making a left turn onto Ryan Ranch Road. At the time of the rear end collision, Shipp was stopped behind two cars waiting for the driver of the vehicle turning left to complete her/his turn. Shipp contends that but for the left turning vehicle being delayed from making the left turn, Shipp would not have been stopped and Smithson would not have rear-ended him.

Defendant served five requests for admission on the plaintiff.

1: You have no evidence that Western Engineering Contractors, Inc., breached any duty of care owed to you with respect to the incident.

2: You have no evidence that Western Engineering Contractors, Inc., created any unsafe condition on or at the scene of the incident.
3: You have no evidence that Western Engineering Contractors, Inc., was negligent in any way with respect to the incident.
4: You have no evidence that Western Engineering Contractors, Inc., created any dangerous condition on or at the scene of the incident at any time.

5: George Robert Smithson was the sole, legal and proximate cause of the incident.

Although defendant contends that the requests were unequivocally denied, plaintiff prefaced each of the denials with the following objection:

“Objection, this interrogatory seeks premature disclosure of expert opinion in violation of Code of Civil Procedure sections 2034.210, 2034.220, and 2034.270. This interrogatory also seeks attorney work-product in violation of Code of Civil Procedure sections 2018.020 and 2018.030. Plaintiff has not yet decided which expert witnesses may be called at trial; and insofar as this interrogatory seeks to ascertain the identity, writings, and opinions of Plaintiffs experts who have been retained or utilized to date as advisors or consultants, this interrogatory is violative of the attorney-work product privilege.”

Defendant never moved for a further responses as to the Requests for Admission.

Code Civ. Proc. § 2033.420 provides: “(a) 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.” Pursuant to CCP §2033.420, if a party is ultimately found to have unreasonably denied a request for admission, that party may be ordered to pay the costs and fees incurred by the requesting party in proving the matter to which the request for admission relates. Costs may be awarded when the requesting party proves the matter at trial or on a motion for summary judgment. Barnett v. Penske Truck Leasing Co., LP. (2001) 90 CA4th 494,497-499. The cost of proof is designed to compensate for

unnecessary expenses resulting from proving matters unreasonably denied. Smith v.

Circle P Ranch Co. (1978) 87 Cal.App.3d 267,276.

In its entirety, CCP § 2033.420(a) provides:

(a) 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.

(b) The court shall make this order unless it finds any of the following:(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.

Defendant contends that since plaintiffs denied having no evidence to support their claims, and denied that the person who rear-ended plaintiff was the sole legal cause of his injuries, the Western Defendants were forced to file a Motion for Summary Judgment. However, Western has not established that plaintiff’s denials were false because they did not prove that plaintiff did not have any evidence to support any of his claims.

In opposition, plaintiff states that at the time of the denials, he had an expert opinion of Larry Neuman [an expert reconstructionist] who opined that the acts of Western were a contributing factor to the accident and stating that if the flagging had been placed farther north on Latrobe, the cars would not have blocked the intersection and therefore there would not have been vehicles stopped on Latrobe trying to turn left.

The determination of whether there are good reasons for the denial, whether the requested admission was of substantial importance, and the amount of the expenses, if any, are all within the discretion of the trial court. Brooks v. American Broadcasting Co. (1986) 179 Cal.App.3d 500, 508. (1) “whether at the time the request was denied it was reasonably possible for the party making the denial to have appreciated that the requested admission involved a central issue”; (2) whether the party denying the request had personal knowledge, or had available sources of information and failed to make a reasonable investigation

to ascertain the facts; (3) the “degree to which the party making the denial has attempted in good faith to reach a reasonable resolution of the matters involved”; (4) whether, if the party subsequent to the refusal to admit learns facts that would have called for an admission, the party advises the requesting party that the denial was in error or should be modified; and (5) “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.” Brooks, supra, at pages 509-511.

Western did not, “prove” the matters set forth in the requests for admission because the court made no finding directly finding that plaintiff had no evidence to support the denial of the RFAs. Plaintiff presented evidence in opposition to the motion for summary judgment, including the expert declaration, in an effort to raise an issue of material fact as to whether Western was negligent and a legal and proximate cause of the accident. Western’s prevailing on the MSJ is not the same as proving that plaintiff

unreasonably denied the RFAs.

The Court finds that even if Western had proven the denials were false, they were not unreasonable. The first four requests sought an admission that plaintiff had no evidence as to several issues concerning defendant’s liability. The fifth request sought an admission as to whether the man who rear-ended plaintiff was the sole “legal and proximate cause” of the incident. Plaintiff contends that he responded reasonably in denying each of the requests, after raising valid objections including premature expert opinion, and because he obtained an expert opinion supporting Western’s liability before the requests for admissions were denied. The denials were not unreasonable.

The Court finds that at the time of the denials, the plaintiff had a reasonable good faith belief that he would prevail on the issues at trial. Grace v. Mansourian (2015) 240 Cal.App.4th 523, 529. “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.” Id. A party denying requests for admission may rely, among other things, on the opinion of an

expert. In Grace v. Mansourian, supra, 240 Cal.App.4th at 529, a vehicle accident case, a defendant relied on an expert physician’s opinion when denying a request to admit that plaintiffs anticipated future neck and back surgery was caused by the car accident. Id. The court found that based on the expert’s opinion, it was reasonable for the defendant to deny that the anticipated surgeries were necessitated by the accident. Id. at 559.

In this case, the opinion of plaintiff’s expert, Laurence Neuman, was that Western had created a dangerous and/or negligent backup of traffic at the intersection between Latrobe Road and Ryan Ranch by locating its flagger station on the north side of the intersection instead of the south side and further, that the curve in Latrobe road north of the Ryan Ranch road created a limitation in visibility for cars traveling south on Latrobe Road, and that should have been taken into consideration when Western made its decision on where to locate its flagger stations. Winter Decl., ¶ 11. Plaintiff also obtained evidence from the County of El Dorado in the form of documents received by a Freedom of Information Act request from the County of El Dorado. Winter Decl., ¶12. For example, the County of El Dorado produced “Contract Documents” indicating, among other things, that the Latrobe Road construction project required the general contractor – Western – to “provide for the safety of traffic and the public.” (Winter Decl ¶ 12 Ex. 1)

This evidence supports plaintiff’s denials of the requests for admission.

The motion for Award of Cost of Proof Sanctions is denied.