Case Number: BC593269 Hearing Date: March 19, 2018 Dept: 97

Superior Court of California
County of Los Angeles
Department 97

Chrisovalatious kelessidis, et al.,

Plaintiffs,

v.

SAYAMOL KLUNMALEE, et al.,

Defendants.

AND CROSS-ACTIONS.

Case No.: BC593269

Hearing Date: March 19, 2018

[TENTATIVE] order RE:

Defendants’ motion for Attorney’s Fees against PLAINTIFF

Background

This action arises out of a multi-vehicle accident involving plaintiff Chrisovalatious Kelessidis (“Plaintiff”), defendant Sayamol Klunmalee (“Klunmalee”), and defendant Alon Doron (“Doron”) on May 5, 2015. The complaint, filed September 2, 2015, alleges causes of action for: (1) negligence; and (2) negligence per se. On October 8, 2015, Plaintiff added Jacob Larson (Doe 1) and Kimberly Larson (Doe 2) (collectively, “the Larson Defendants”) by Doe amendment.

On November 10, 2015, Alon Doron and Flemlyn Doron filed a cross-complaint against Klunmalee for comparative indemnity, contribution, and declaratory relief. On January 6, 2016, Jacob Larson (Roe 1) and Kimberly Larson (Roe 2) were added as Roe Cross-Defendants.

On April 1, 2016, Klunmalee filed a cross-complaint against Alon Doron for indemnity and contribution.

This case involves a multiple car and motorcycle collision. As noted in the Court’s October 18, 2017 order granting the Larson Defendants’ motion for summary judgment, the accident occurred as follows: Klunmalee slammed on her brakes in response to the vehicle in front of her stopping abruptly. Doron was driving in the same lane behind Klunmalee. Plaintiff was driving his motorcycle behind Doron. When Klunmalee braked, Plaintiff could not stop in time. Plaintiff swerved and hit defendant Doron’s car. Plaintiff alleged that Jacob Larson had been driving in front of Klunmalee, and that Jacob Larson’s erratic driving had been the cause of Klunmalee’s sudden need to break.
On October 18, 2017, the Court granted the Larson Defendants’ motion for summary judgment. In the motion for summary judgment, the Larson Defendants presented evidence, in the form of deposition testimony, that no witness saw the Larson Defendants’ car in front of the other vehicles before the accident. The Court ruled that this evidence shifted the burden of proof onto Plaintiff, and that Plaintiff was not able to present admissible evidence to show a triable issue of fact.

In the instant motion, the Larson Defendants seek to collect their costs in preparation of the motion for summary judgment. The Larson Defendants argue that they are entitled to these costs under Code of Civil Procedure § 2033.420 because Plaintiff failed to admit the truth of a material matter in the Requests for Admission propounded by the Larson Defendants prior to the motion for summary judgment.

Legal Standard

“[S]ince requests for admissions are not limited to matters within a personal knowledge of the responding party, that party has a duty to make a reasonable investigation of the facts before answering items which do not fall within his personal knowledge.” (Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618, 634.)

Under CCP section 2033.420(a), if a party fails to admit the truth of any matter when requested to do so, and “if the party requesting that admission thereafter proves 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.” The court “shall” award reasonable expenses, including attorney’s fees, incurred in making that proof 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.” (CCP § 2033.420, subd. (b).)

Unlike discovery sanctions, an award of expenses is not a penalty; instead, it is designed to reimburse reasonable expenses incurred by a party in proving the truth of a requested admission such that trial would have been expedited or shortened if the request had been admitted. (American Federation of State, County and Municipal Employees v. Metropolitan Water Dist. of Southern California (2005) 126 Cal. App. 4th 247.) “Awarding costs of proof is improper if the party who denied the request for admission ‘held a reasonably entertained good faith belief [it] would prevail on the issue at trial.’” (Miller v. American Greetings Corp. (2008) 161 Cal. App. 4th 1055, 1066, internal citation omitted.)

Whether the denial was reasonable and the amount of expenses to be awarded lies within the sound discretion of the trial court. (Brooks v. American Broadcasting Co. (1986) 179 Cal.App.3d 500, 508, citing Haseltine v. Haseltine (1962) 203 Cal.App.2d 48, 60.) In determining whether a responding party’s denial was reasonable, the court looks at the information available at the time the request was denied. (Brooks, 179 Cal. App. 3d at 510.) Reasonable cause is to be determined objectively, as a matter of law, on the basis of the facts known to the responding party when he or she filed or maintained the action. “Once what the plaintiff (or his or her attorney) knew has been determined, or found to be undisputed, it is for the court to decide ‘whether any reasonable attorney would have thought the claim tenable.’” (Laabs v. City of Victorville (2008) 163 Cal. App. 4th 1242, 1274.)

Discussion

The Larson Defendants state that they are entitled to costs because Plaintiff failed to admit Requests for Admission, set two, 28 and 29. RFA 28 stated: “Admit that Jacob Larson was not operating a car in the lane in front of Sayamol Klunmalee at any time on May 5, 2015, before the motor vehicle accident.” Plaintiff responded with an objection, and then “Deny.” (Def. Exh. B, at pg. 4.) RFA 29 states: “Admit that no person has personal knowledge that Jacob Larson was operating a car in the lane in front of Sayamol Klunmalee at any time on May 5, 2015, before the motor vehicle accident.” Plaintiff responded with an objection, and then “Deny.” (Ibid.) In Plaintiff’s response to Judicial Council Interrogatory 17.1, Plaintiff explained the reasoning for the denials of RFA 28 and 29. (Pl. Exh. 4.) Plaintiff stated that he based the denials on the knowledge of the witnesses Kelessidis, Klunmalee, Doron, Jacob Larson, Deputy Wright, as well as the Traffic Collision Report and the associated 911 logs.

The Larson Defendants contend that Plaintiff had no reasonable basis to deny RFAs 28 and 29 because most of the depositions in this case had occurred before Plaintiff denied RFAs 28 and 29. The following depositions had been conducted prior to Plaintiff’s denials: Kelessidis, Klunmalee, Jacob Larson, and Deputy Wright. None of these deposed witnesses had given any testimony that placed Jacob Larson or his vehicle in the lane in front of Klunmalee or within the chain of events leading up to the collision. The deposition of Alon Doron was the only deposition outstanding.

In opposition, Plaintiff argues that his denials of the subject RFAs were reasonable. Plaintiff states that he relied on the Traffic Collision Report and the associated 911 logs, which show that unidentified witnesses saw the Larson Defendants’ car driving erratically before the accident occurred. (Pl. Exh. 1, at pg. 12.) Plaintiff also states that he a had a good faith belief, based on Doron’s statements in the Traffic Collision Report, that Doron’s deposition would be able to place Jacob Larson at the accident.

A. Reasonable Grounds for Denial

The Court finds that Plaintiff did not have a reasonable ground to deny Requests for Admissions 28 and 29. The evidence to which Plaintiff cites does not support a conclusion that the RFA’s were reasonably denied. First, the questions posed by the Larson Defendants were very specific. Both questions are limited to whether the party has knowledge, first hand or otherwise, that Jacob Larson was driving “in the lane in front of Sayamol Klunmalee at any time on May 5, 2015.” These very narrow questions limit the focus to the specific placement of Jacob Larson in the lane in front of Klunmalee on the date of the accident, which was material to causation of the accident.

Second, the evidence cited by Plaintiff does not support the denial of these specific questions. Plaintiff states that he believed, based on Doron’s statement in the Traffic Collision report, that Doron would provide testimony at his deposition placing Jacob Larson at the scene.[1] However, Doron’s statement in the Report did not address whether there was a car in front of Klunmalee and did not discuss a description of that car or how that car was driving right before the accident. (Pl. Exh. 1, at pg. 11.) The other parts of the Report also show that Plaintiff’s denials were not reasonable. The Deputy noted in the Report that “several unidentified witnesses/reporting parties [ ] described a black sedan with a California license plate of 6GSE888 that was driving reckless and/or at a high rate of speed, prior to the accident.” (Id. at pg. 12.) The license plate matches the Larsons’ car, but nothing in this anonymous statement links the reported reckless driving to the events that caused the collision. Nor is there any description of where the Larson Defendants’ allegedly reckless driving occurred, let alone any suggestion that the Larson Defendants’ car was ever in the same lane ahead of Klunmalee’s car.

The 911 Logs associated with the Report similarly demonstrate a missing causal link and missing geographic connection between the reports of reckless driving and the subject collision. The Court found the following during the Larson Defendants’ motion for summary judgment: “it should also be noted that the Incident Detail Log states that the reporting party did not witness the traffic collision but would like to provide this information in case a black sedan was the cause of the accident. [Citation] Thus, this call also does not establish that Jacob Larson was the cause of the accident.” (October 18, 2017 Order, Larson Defendants’ MSJ, at pg. 5-6.)

Based on the evidence as it existed at the time of the denials to RFAs 28 and 29, the Court cannot find that Plaintiff had reasonable grounds or a good faith basis to believe that Plaintiff would prevail on the issues denied in RFAs 28 and 29. Nor has Plaintiff demonstrated any other good reason for his failure to admit. Therefore, the Court finds that the Larson Defendants are entitled to their costs under Section 2033.420.

B. Recoverable Costs

The Larson Defendants request their attorney’s fees and costs associated with brining the motion for summary judgment, which total $7,500.00. These legal fees and costs include the following:

· Preparation of motion (review of Deposition Transcripts, research, separate statement of undisputed facts, and drafting memorandum of points and authorities): 22.5 hours at $200 per hour = $4500;

· Analysis of Plaintiff’s opposition: 2 hours at $200 per hour = $400;

· Preparation of Reply (including objections): 6 hours at $200 per hour = $1200;

· Hearing preparation and attendance: 4.5 hours at $200 per hour = $900; and

· Filing Fee for motion: $500.

The fees and costs requested by the Larson Defendants are not all proper. Section 2033.420 allows the recovery of only “reasonable expenses incurred in making [the] proof, including reasonable attorney’s fees” of the facts improperly denied in the request for admissions. The recovery of costs is limited to those expended to prove the truth of the matters denied. The Code does not allow the awarding of costs for work that would have been done regardless of the admission or denial.

Even if Plaintiff had admitted RFAs 28 and 29, it would still likely have been necessary for the Larson Defendants to bring a motion for summary judgment. As such, the Larson Defendants are not entitled to all the attorney’s fees and costs incurred in bringing the motion for summary judgment, as they have requested. Instead, the Court will award only those attorney’s fees incurred to prove the facts denied in response to RFAs 28 and 29. The Court will therefore not award the filing fee.

Moreover, a review of Plaintiff’s opposition to the summary judgment motion, which Plaintiff filed on October 4, 2017, reveals that in his opposition, Plaintiff focused on the Jacob Larson’s erratic driving and on Jacob Larson’s false exculpatory statement. Thus, the Larson Defendants devoted their reply in support of their summary judgment motion to arguing that: (1) the traffic collision report and incident detail log on which Plaintiff relied were inadmissible, and (2) CCP §437e(c) prohibited denial of the summary judgment motion based on lack of credibility of Jacob Larson. As the issues in the opposition and reply did not relate to proof of the facts denied in response to RFAs 28 and 29, the Court will not award the Larson Defendants’ attorney’s fees incurred in analyzing the opposition, preparing the reply, or those related to the hearing.

However, any summary judgment motion based on the admission of RFAs 28 and 29 would certainly have required less preparation. The Larson Defendants could have used the admissions at issue to demonstrate the absence of any causal link or geographic connection between Jacob Larson and the accident, rather than culling through the depositions of numerous witnesses to find supporting testimony. Therefore, the attorney’s fees that the Court will award are those incurred for work culling through deposition transcripts and identifying testimony necessary to prove the facts denied in RFAs 28 and 29 and preparing those portions of the moving papers for the summary judgment motion that related to proof of these facts.

Having examined the Larson Defendants’ moving papers for the summary judgment motion, the Court finds that the Larson Defendants reasonably expended 15 hours to cull through deposition transcripts and identify testimony necessary to prove the facts improperly denied in RFAs 28 and 29 and to prepare those portions of the moving papers for the summary judgment motion that related to proof of these facts, at $200.00 per hour, for a total of $3,000.00.

The Larson Defendants’ motion is granted. The Court awards attorney’s fees of 15 hours for reviewing deposition transcripts and preparing those portions of the moving papers for the summary judgment motion that related to proof of the facts improperly denied in RFAs 28 and 29, at $200.00 per hour, for a total of $3,000.00.

Conclusion and Order

For the reasons above, the Larson Defendants’ motion for attorney’s fees under Section 2033.420 is granted. Plaintiff is ordered to pay attorney’s fees in the amount of $3,000.00 to the Larson Defendants, by and through counsel, within forty-five (45) days of this order.

The Larson Defendants are ordered to give notice of this order.

DATED: March 19, 2018 ___________________________

Elaine Lu

Judge of the Superior Court

[1] Plaintiff also argues that there was a reasonable inference that Doron would be able to place Larson at the scene because of Doron’s discovery responses, attached at Exhibit 5. However, these responses were served on Plaintiff after Plaintiff served his denials to RFA 28 and 29 on the Larson Defendants. Therefore, Plaintiff could not possibly have relied on these discovery responses as they were not known to Plaintiff at the time of his denials.