Opinion
B164005.
10-15-2003
RAJENDRA VARMA, et al., Plaintiffs and Respondents, v. MEIR KATTAN, et al., Defendants and Appellants.
Philip D. Dapeer for Defendants and Appellants. Howard Gold for Plaintiffs and Respondents.
Defendants Meir Kattan, Oren Kattan and Michele Aghili appeal from the post-judgment order denying their motion for expenses incurred in proving matters not admitted pursuant to Code of Civil Procedure section 2033, subdivision (o). Defendants contend the court abused its discretion in denying their request for expenses. We affirm.
All statutory references are to the Code of Civil Procedure.
The order is appealable. (Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 656.)
FACTUAL AND PROCEDURAL SYNOPSIS
On March 28, 2001, Rajendra Varma filed his complaint for conversion, conspiracy, assault and intentional and negligent infliction of emotional distress. The first amended complaint added Rose Gems, Inc. as a plaintiff. The complaint arose out of an incident on September 27, 2000, in which Meir Kattan stopped by Varmas place of business to pick up payment for an alleged debt. When Varma told Meir that he did not have the money, Meir allegedly assaulted Varma and removed from the store three bundles of diamonds with a retail value of $ 75,000. During this incident, Meir produced a gun that had been concealed in his pocket and threatened to kill Varma.
Oren Kattan and Michelle Aghili allegedly conspired with Meir to commit the alleged acts and lent encouragement and assistance to Meir by waiting outside the shop as lookouts and receiving Varmas property. Only the causes of action for conspiracy and emotional distress were asserted against Oren and Aghili.
Kattan Diamonds & Jewelers, Inc. filed a cross-complaint against Rose Gems for money due for goods sold and delivered. Judgment was entered in favor of Rose Gems on the cross-complaint.
During the course of discovery, respondents propounded two sets of requests for admissions ("RFAs") to Varma. The first set asked Varma to admit he knew of no facts to support various allegations in the complaint which were identified by paragraph number of the complaint. The second set asked Varma to admit that various acts alleged on the part of Meir had not occurred. Varma denied all the requests.
Following the close of Varmas case, with respect to the first amended complaint, the court granted motions for nonsuit brought by Oren and Aghili. As to Meir, the court granted nonsuit only as to the cause of action for conspiracy. Trial proceeded as to Meir on the remaining causes of action and resulted in a judgment in Meirs favor.
After judgment was entered, appellants moved for reimbursement of expenses pursuant to section 2033, subdivision (o). The motion was based on the fact that they had been required to offer proof on all issues raised by the RFAs and, in so doing, successfully demonstrated Varma had no reasonable basis for believing he could succeed on his claims. Appellants sought reimbursement for fees and costs incurred specifically for trial preparation and trial; they sought $40,352 for legal fees incurred in June and July, plus $2,000 fees for drafting the motion, and $500 fees for the hearing on the motion. The court denied the motion.
Respondents filed a timely notice of appeal.
DISCUSSION
Appellants contend the court abused its discretion in denying their section 2033, subdivision (o) motion as they were required to offer proof of all the issues raised by the RFAs.
"`The determination of whether a party is entitled to expenses under section 2033, subdivision (o) is within the sound discretion of the trial court. More specifically, `[s]ection 2033, subdivision (o) 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. An abuse of discretion occurs only where it is shown that the trial court exceeded the bounds of reason. It is a deferential standard of review that requires us to uphold the trial courts determination, even if we disagree with it, so long as it is reasonable." (Citations omitted.) (Stull v. Sparrow (2001) 92 Cal.App.4th 860, 864.) It is appellants burden to show the court abused its discretion. (Haseltine v. Haseltine (1962) 203 Cal.App.2d 48, 60.)
Subdivision (o) of section 2033 provides:
"If a party fails to admit the genuineness of any document or the truth of any matter when requested to do so under this section, 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 attorneys fees. The court shall make this order unless it finds that (1) an objection to the request was sustained or a response to it was waived under subdivision (l), (2) the admission sought was of no substantial importance, (3) the party failing to make the admission had reasonable ground to believe that party would prevail on the matter, or (4) there was other good reason for the failure to admit."
In essence, appellants position is that respondents failed to establish good cause to the deny the RFAs based on Varmas evidence (i.e., his testimony). The difficulty with that position is that appellants have not provided a transcript of the trial. In Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447, in addressing a challenge to an attorneys fees order under another statute, the court concluded: "The judgment must be affirmed because the record provided by defendant is inadequate to conclude the trial court abused its discretion in determining the fee was reasonable. As the party challenging a fee award, defendant has an affirmative obligation to provide an adequate record so that we may assess whether the trial court abused its discretion. We cannot presume the trial court has erred." (Citations omitted.)
Citing Garcia v. Hyster Co. (1994) 28 Cal.App.4th 724, appellants argue that respondents failure to survive nonsuit demonstrates the truth of the matter denied by respondents and provided the proof required for an award under section 2033. In Garcia, the trial court found the defendant had proved the truth of matter asserted in RFAs propounded by defendant as the court granted nonsuit in favor of defendant, noting a nonsuit motion conceded the truth of the facts proved, but denied they, as a matter of law, sustained the plaintiffs case. (Id., at p. 735.) In the case at bar, the court granted nonsuit on some causes of action. Even if we assume arguendo that appellants proved some facts denied by respondents, they sought all fees and costs incurred after respondents denied the RFAs. Moreover, there is still the possibility the trial court determined Varma had reasonable grounds to believe respondents would prevail in their action or there was another good reason for the failure to admit.
Appellants also suggest this case is similar to Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618, as given Varmas testimony he cannot claim he had a reasonable basis to believe he would prevail, but rather was relying on the hope the jury would disbelieve appellants, and he had no corroborating witness. In Wimberly, the plaintiff alleged his injuries were caused by a defective fork assembly on his bicycle which had been produced and distributed by defendant. In response to RFAs, the defendant denied that the fork assembly was defective and that the defect was the proximate cause of plaintiffs injuries, but failed to present any witnesses at trial on the issues of defect or causation. The Court of Appeal determined that the trial court erred in finding the denials were reasonable as the only inference that could be reasonably drawn was that defendant had no reasonable belief it could prevail on the causation and defect issues. (Id., at pp. 634-638.)
This case is dissimilar as, even without the transcript of the trial, it is apparent Varma testified about his version of the event of September 27. The lack of a corroborating witness is not comparable to the failure to call any witness on issues in Wimberly.
Appellants have not shown the trial court abused its discretion in denying their request for expenses.
DISPOSITION
The order is affirmed. Respondents to recover costs on appeal.
We concur: JOHNSON, Acting P.J. and MU&Ntil;OZ (AURELIO), J.