Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. 00CC06660, Ronald L. Bauer, Judge.
Law Offices of Kuhn & Belz, David L. Belz, David J. Fraser and Mary L. Nichols for Plaintiffs and Appellants.
Marlin & Saltzman, Louis M. Marlin, Dale A. Anderson for Defendant and Respondent.
OPINION
ARONSON, J.
Plaintiffs Tanya Bennett, Todd Bennett, Jason Bennett, and Maria Lupo challenge the trial court’s denial of their motion for cost-of-proof fees and expenses under Code of Civil Procedure section 2033.420, due to the failure of defendant The Regents of the University of California (Regents) to admit the truth of certain requests for admission (RFA). Plaintiffs assert they proved the truth of three RFA’s the Regents denied when, after plaintiffs introduced evidence of the Regents’ negligence at trial, the Regents conceded liability for negligence.
All statutory references are to this code, unless otherwise noted.
We conclude the trial court did not abuse its discretion in denying the motion. Section 2033.420 expressly provides for the recovery of fees only if the movant has proved the truth of the matter in the RFA; a party’s concession of liability is not sufficient. Although plaintiffs presented evidence bearing on some of the liability issues embraced within the denied RFA’s, the trial court concluded the plaintiffs had not proved them. Accordingly, we affirm.
I
Factual and Procedural Background
After Patricia Bennett died of cancer, her family executed a donation agreement to donate her body to the Willed Body Program (WBP) at the University of California, Irvine (UCI). Tanya Bennett, the decedent’s daughter, checked a box on the donation agreement requiring UCI to return the decedent’s remains to the family. She also signed and returned to UCI an additional written agreement for return of the decedent’s remains, and a family friend paid the $600 to UCI under that agreement. Despite the agreement, however, UCI failed to return the decedent’s remains to the family, and Regents cannot account for the body.
Plaintiffs sued the Regents in June 2000. In September 2004, plaintiffs served the Regents a set of RFA’s. In response, the Regents admitted, inter alia, “[d]efendant has no information or knowledge that the cremated remains of Patricia Bennett were returned to her family,” and that “defendant’s records do not disclose when and how the body of Patricia Bennett was finally disposed . . . .” The Regents denied the following three requests: “[T]he Willed body Program of the University of California, Irvine negligently mishandled the body of decedent PATRICIA BENNETT”; “defendant REGENTS OF THE UNIVERSITY OF CALIFORNIA negligently supervised the Willed Body Program of the University of California, Irvine”; and “the University of California, Irvine, negligently supervised . . . Christopher Brown in his operation of the Willed Body Program of the University of California, Irvine.”
Christopher Brown was director of the WBP.
Shortly before trial, the parties agreed to a joint statement of issues to be read to the jury, which included the following: “Defendants dispute their liability in this action, whether they caused any damages and the nature and extent of the injuries and damages claimed by Plaintiffs TANYA BENNETT, TODD BENNETT, JASON BENNETT and MARIA LUPO.”
The case proceeded to trial on three causes of action: breach of contract, negligence, and fraud. During opening statements, the Regents’ counsel conceded “[t]he University promised to return Patricia Bennett’s cremated remains to the family, and we didn’t do so.” Counsel claimed the Regents had properly trained Brown and his supervisors had instructed him to follow procedures. He also claimed that once UCI learned of problems with the WBP, it acted swiftly to correct the situation. Counsel concluded his opening statement: “I look forward to seeing if they show any evidence that this is other than the fact that a mistake was made, a mistake has been owned up to. We are sorry for that mistake. Let’s keep this in proportion.”
After two of the plaintiffs testified about the donation and their emotional distress, plaintiffs called Marsha Murphy, who had authored an investigative audit report summarizing findings from UCI’s internal investigation into its WBP. Murphy testified about the report’s findings, including UCI’s failure to implement a policy mandating a separation of duties at the WBP, placing Brown solely in charge of the WBP, and UCI’s failure to adequately supervise Brown, who took advantage of these shortcomings by selling body parts from donated bodies for his own personal profit.
At a break during Murphy’s testimony, the Regents’ counsel sought to have the trial court limit evidence regarding how UCI administered and supervised the WBP. Counsel noted the two plaintiffs who had already taken the stand testified they did not rely on any WBP representations, and that the other two plaintiffs testified in their depositions that they had no contact with the WBP. Arguing the plaintiffs could therefore not prove fraud, counsel explained: “The reason that’s so important to us now, your Honor, is that essentially we have admitted liability on negligence. The plaintiffs cannot get punitive damages against the Regents.” Counsel further argued: “I believe it is time that that evidence now from this point forward . . . be left out and we concentrate this case on the facts that are relevant and what they’re entitled to, which they have a negligence claim where we’ve admitted we didn’t return the cremated remains, what are the damages, how much are the damages. And the only reason for this other stuff to be coming in is, in fact, to inflame the jury.”
Plaintiffs’ counsel responded: “Now, [the Regents’ counsel] has said . . . we admitted –– today he said to the court I’ve basically stipulated to liability, but the word I keep hearing to the jury is mistake. There was a mistake. Mistake doesn’t mean negligence.” The trial court declined to limit the introduction of evidence, noting the issue of negligence was still before the jury, and that plaintiffs offered probative evidence on the issue. The court also recognized that the fraud cause of action remained viable and the challenged evidence was also probative on that point.
Murphy resumed her testimony, and explained that UCI had created written policies or procedures guiding WBP activities, including procedures that would track the identity of the cadavers until final disposition. During Murphy’s testimony, the trial court announced an early break in the proceedings and, after excusing the jury, sought clarification regarding the Regents’ willingness to admit liability. The Regents’ counsel responded: “The university, your Honor, acknowledges it was negligent in the circumstances.” After some discussion regarding whether the evidence plaintiffs planned to introduce would be relevant to their fraud claim, the Regents’ counsel declared: “Let me be perfectly clear. When I said we admit liability, I mean we admit liability. We are not raising the good faith defense because that would not be admitting liability.” Based on this admission, the trial court determined that issues regarding UCI’s knowledge and its response to the problems in the WBP were “irrelevant” to the question of damages, and would serve only to prejudice the Regents. Plaintiffs’ counsel noted that UCI’s concession had saved “days” of trial, and requested a recess to streamline its presentation so the evidence it presented covered only the issue of damages. Trial resumed a week later, and the jury awarded emotional distress damages of $70,000 to Maria Lupo, $25,000 to Tanya Bennett, $20,000 to Todd Bennett, and $75,000 to Jason Bennett.
Plaintiffs moved for cost-of-proof fees in the amount of $294,200, based on the Regents’ failure to admit RFA’s pertaining to both liability and damages. At a hearing, the trial court directed plaintiffs to resubmit their motion, restricting its scope to eliminate fees relating to the Regents’ denial of RFA’s relating to plaintiffs’ severe emotional distress claims, and fees plaintiffs would have incurred regardless of how UCI responded to the RFA’s.
Plaintiffs resubmitted their motion seeking cost-of-proof fees and expenses of $115,731.98. At the hearing on the resubmitted motion, the trial court acknowledged plaintiffs’ “heroic efforts” in paring down its request, commenting that the new request reflected “tedious time-consuming work” and “considerable effort.” Nevertheless, the court denied the motion for costs-of-proof in its entirety, noting it regretted doing so. The court observed the resubmitted motion did not reflect that “amount that can be legitimately ascribed to a defined request for admission.” The court explained: “You’ve reduced that now for three requests for admission. I just don’t think that it’s come to the point that I can identify certain time with those requests and say that but for those denials this time wouldn’t have been spent.” The court concluded, “It’s the court’s perception that I cannot identify any particular proof presented at this trial and time in bringing that proof as a consequence of those denials.” Plaintiffs now appeal the trial court’s denial of its motion.
An order denying a motion for cost-of-proof fees and expenses under section 2033.420 is appealable. (See Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 656.)
II
Discussion
The Trial Court Did Not Abuse Its Discretion in Denying Plaintiffs’ Motion
Section 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. [¶] (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.”
Plaintiffs contend the trial court erred when it denied their cost-of-proof fees and costs because they proved at trial the truth of three RFA’s, and the trial court did not find any of the exceptions applicable. We do not find the contention persuasive.
“‘The primary purpose of requests for admissions is to set at rest triable issues so that they will not have to be tried; they are aimed at expediting trial. [Citation.] The basis for imposing sanctions . . . is directly related to that purpose. Unlike other 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 . . . [citations] such that trial would have been expedited or shortened if the request had been admitted.’ [Citations.]” (Stull v. Sparrow (2001) 92 Cal.App.4th 860, 865 (Stull).)
“‘The determination of whether a party is entitled to expenses under section 2033[.420] is within the sound discretion of the trial court.’ [Citation.] More specifically, ‘[s]ection 2033[.420] clearly vests in the trial judge the authority to determine whether the party propounding the admission thereafter proved the truth of the matter which was denied.’ [Citation.] An abuse of discretion occurs only where it is shown that the trial court exceeded the bounds of reason. [Citation.] It is a deferential standard of review that requires us to uphold the trial court’s determination, even if we disagree with it, so long as it is reasonable. [Citation.]” (Stull, supra, 92 Cal.App.4th at p. 864.) Nonetheless, the trial court must award reasonable expenses if, in exercising its discretion, it determines that the moving party has satisfied the requirements of the statute. (Brooks v. American Broadcasting Co. (1986) 179 Cal.App.3d 500, 508.)
Here, the trial court found the moving party failed to satisfy the statutory requirements. A party may recover fees and costs only if “the party requesting that admission thereafter proves . . . the truth of that matter.” (§ 2033.420, subd. (a).) “That an issue be proved is an express statutory prerequisite to recovery under section 2033[.420]. Proof is something more than just evidence. It is the establishment of a fact in the mind of a judge or jury by way of evidence.” (Stull, supra, 92 Cal.App.4th at p. 865-866.) “[I]t is entirely within the trial court’s discretion to determine whether a party proved the truth of matter that had been denied.” (Id. at p. 865.)
Although plaintiffs did present evidence bearing upon UCI’s negligence, the trial court found plaintiffs had not proved any of the facts the Regents denied in their RFA responses. The closest the trial court came to the issue was its comment that it was unable to “identify any particular proof presented at this trial . . . as a consequence of [the Regents’] denials.” To the extent the foregoing is unclear, we follow the well-established rule that “‘every intendment and presumption not contradicted by or inconsistent with the record on appeal must be indulged in favor of the orders and judgments of superior courts.’” (Walling v. Kimball (1941) 17 Cal.2d 364, 373; see also Jara v. Suprema Meats, Inc. (2004) 121 Cal.App.4th 1238, 1250.) Because nothing in the record demonstrates the trial court found plaintiffs had proved the matters in their RFA’s, we presume the court did not make the requisite finding.
Plaintiffs, however, assert they proved negligent supervision to an “overwhelming degree,” citing evidence of the WBP investigation introduced during Murphy’s testimony. True, the WBP investigation report and Murphy’s testimony provided evidence of negligent supervision, but this does not establish Regents’ liability unless it convinced a judge or jury.
Plaintiffs also argue the Regents’ concession of liability conclusively demonstrated they had provided negligent supervision. We disagree. In Wagy v. Brown (1994) 24 Cal.App.4th 1 (Wagy), the defendants in their RFA responses denied they acted negligently in causing an automobile crash. After the case was sent to court-ordered arbitration, the defendants admitted negligence for purposes of the arbitration only, thus obviating plaintiff’s introduction of evidence on the issue. Neither side requested a trial de novo, and the trial court entered the arbitrator’s award as a judgment, and then granted the plaintiff attorney fees under section 2033.420’s predecessor statute.
The appellate court in Wagy reversed, holding that the defendants’ concession did not show the plaintiff had proved negligence. The court explained: “‘“Proof” is the establishment by evidence of a requisite degree of belief concerning a fact in the mind of the trier of fact or the court.’ [Citation.] Given this definition, preparation for trial or arbitration is not the equivalent of proving the truth of a matter so as to authorize an award of attorney fees under section 2033[.420]. Expenses are recoverable only where the party requesting the admission ‘proves . . . the truth of that matter,’ not where that party merely prepares to do so.” (Wagy, supra, 24 Cal.App.4that p. 6.)
The issue again arose in Stull, where the defendants, who had previously denied being negligent in their RFA responses, admitted liability immediately before trial, thus obviating the need for proof on the issue. The Stull court affirmed the trial court’s denial of cost-of-proof fees and costs, recognizing that “[u]ntil a trier of fact is exposed to evidence and concludes that the evidence supports a position, it cannot be said that anything has been proved.” (Stull, supra, 92 Cal.App.4th at pp. 865-866, italics added.)
Plaintiffs assert the rule in Wagy and Stull constitutes a pretrial “safe harbor” for a defendant, but is inapplicable once trial starts and evidence on the matter denied is introduced. This assertion is at odds with the reasoning of these cases and the plain language of section 2033.420. The statute requires the moving party to “prove[]” the matter denied in the RFA’s. A party does not prove a matter simply by introducing some evidence pertaining to it; a party must establish “by evidence . . . a requisite degree of belief concerning a fact in the mind of the trier of fact or the court.” (Evid. Code, § 190; Stull, supra, 92 Cal.App.4th at p. 866.)
Plaintiffs argue the purposes of section 2033.420 are frustrated if a party is allowed to avoid cost-of-proof fees simply by admitting liability in the midst of trial, which usually occurs when that party recognizes he or she will lose on an issue denied in the RFA’s. As we noted above, section 2033.420 “‘is designed to reimburse reasonable expenses incurred by a party in proving the truth of a requested admission . . . [citations] such that trial would have been expedited or shortened if the request had been admitted.’ [Citations.]” (Stull, supra, 92 Cal.App.4th at p. 865, italics added.) Here, the Regents’ concession came shortly after evidence regarding negligent supervision had been introduced. As plaintiffs informed the court, this concession saved “days” of trial, and allowed the parties to move to the issue of damages. Thus, one might infer that the threat of cost-of-proof fees here resulted in a shortened trial, in accordance with the statute’s purpose. Indeed, had there existed a strict rule imposing cost-of-proof fees upon one party’s concession of an issue after trial has begun, the Regents might have chosen to continue litigating the negligent supervision issue simply to demonstrate to the trial court they “had reasonable ground to believe that [they] would prevail on the matter.” (§ 2033.420, subd. (b)(3).) Moreover, we do not announce a rule barring cost-of-proof fees simply because a party concedes an issue before it is decided by the trier of fact. If the trial court determines the moving party had proved the issue at trial, it may award cost-of-proof fees even if the party that had denied the issue in its RFA responses makes a belated concession.
III
Disposition
The order is affirmed. In the interests of justice, each party is to bear its own costs of this appeal.
WE CONCUR: RYLAARSDAM, ACTING P. J., FYBEL, J.