Oropeza v. Ibarra

Filed 4/24/07 Oropeza v. Ibarra CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Crisostomo Ibarra appeals a posttrial order awarding expenses to Alex Oropeza that were incurred to prove facts Ibarra had previously denied in response to requests for admissions. We find no abuse of discretion and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In March 2002, Ibarra, an attorney, agreed to represent Oropezas sister-in-law, Alicia Rodriguez, in her marital dissolution. Oropeza acted as his sister-in-laws interpreter. Rodriguez paid Ibarra a deposit of $250, and agreed to make monthly payments of $250. Oropeza wrote checks to Ibarra on behalf of Rodriguez because she did not have a bank account.^[1] The agreement was between Ibarra and Rodriguez. Oropeza was not a party, nor did he sign a surety agreement to guarantee the attorney fees.

In June 2004, Ibarra and Rodriguez submitted a dispute that had arisen between them over the payment of attorney fees to non-binding arbitration.^[2] Ibarra had been paid $1,025, but had billed for $11,309.87 in services. The arbitrator issued an award in favor of Ibarra and concluded that Oropeza was liable for fees because he acted as a surety of Rodriguezs debt. Oropeza then filed a complaint seeking a judicial declaration that he was not a surety for Rodriguez, and an injunction that would bar Ibarra from collecting fees from him.

In several requests for admissions, Ibarra was asked to essentially admit that he had no written or verbal surety agreement with Oropeza.^[3] Ibarra denied each of those requests for admissions. At trial Ibarra admitted there was no written surety agreement. After trial the court concluded that Oropeza did not make an oral promise to pay Ibarra for attorneys fees [on] behalf of Ms. Rodriguez. Defendant has failed to prove the existence of an enforceable surety agreement between Oropeza and Ibarra.^[4]

Following trial Oropeza moved for $16,341.25 in attorney fees pursuant to Code of Civil Procedure section 2033.420, as expenses incurred to prove the truth of matters Ibarra denied in response to requests for admissions.^[5] Ibarra argued he came within the safe harbor of section 2033.420, subdivision (b)(3),^[6]because when he denied the requests for admissions, he reasonably believed he would prevail on the issues. The court awarded Oropeza $6,354.07 in attorney fees incurred in proving the issues denied by Ibarra in response to the requests for admissions. The court made clear that its fee award was on the basis of the request for admissions, the denial and failure to amend to admit requests for admissions that, at a later point in time, should have been clear to the defendant that an amendment was necessary. Ibarra timely appealed.

DISCUSSION

Whether a party is entitled to costs of proof under section 2033.420, and, if so, the amount to be awarded, is within the trial courts discretion. (Brooks v. American Broadcasting Co. (1986) 179 Cal.App.3d 500, 508 (Brooks); accord, Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618, 637, fn. 10; Stull v. Sparrow (2001) 92 Cal.App.4th 860, 864.)^[7] The trial courts ruling will be disturbed on appeal only in   a clear case of abuse   resulting in   a miscarriage of justice . . . .   (Blank v. Kirwan (1985) 39 Cal.3d 311, 331, quoting Denham v. Superior Court (1970) 2 Cal.3d 557, 566; see also Wimberly v. Derby Cycle Corp., supra, at p. 637, fn. 10.) Appellant has failed to show the trial courts ruling  exceeds the bounds of reason  in this case. (See Denham v. Superior Court, supra, at p. 566; Stull v. Sparrow, supra, at p. 864.)

Unlike other discovery sanctions, an award of expenses pursuant to [the predecessor to section 2033.420] is not a penalty. Instead, it is designed to reimburse reasonable expenses incurred by a party in proving the truth of a requested admission . . . [when] trial would have been expedited or shortened if the request had been admitted. (Brooks, supra, 179 Cal.App.3d at p. 509; accord, Stull v. Sparrow, supra, 92 Cal.App.4th at p. 865.)

In determining whether a party reasonably denied the truth of a requested admission, there are a variety of factors which a court should consider. (Brooks, supra, 179 Cal.App.3d at p. 509.) These include whether a responding party later learned facts that would have called for an admission and advised the requesting party that the denial was in error or should be modified, and 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. at pp. 510-511.) [I]t is [not] enough for the party making the denial to hotly contest the issue. [Instead], there must be some reasonable basis for contesting the issue in question before sanctions can be avoided. (Id. at p. 511.)

Ibarra argues he denied the requested admissions because he reasonably believed he would prevail on those issues at trial. But he failed to offer proof of his belief to the trial court. The declaration filed to oppose Oropezas motion included only Ibarras attorneys authentication of documents, without any showing that Ibarra relied on those documents in order to formulate his good faith belief he would prevail at trial. Moreover, the judge who considered Oropezas posttrial motion for costs of proof presided over the bench trial where he evaluated the testimony and ruled against Ibarra on the critical issues of the existence and enforceability of the surety agreement. The trial courts view of what was reasonable for Ibarra to believe necessarily included its assessment of the witnesses credibility. The determination of the credibility of each witness and the weight to be given to his or her testimony is within the exclusive province of the trial judge as the trier of fact. [Citation.] The trier of fact properly may reject part of the testimony of a witness, though not directly contradicted . . . .  (Gonzales v. Gonzales (1968) 267 Cal.App.2d 428, 432.) We are disinclined to substitute our judgment for that of the trial court in these circumstances. Having properly exercised its discretion and determined that the requirements of [the statute authorizing recovery of costs of proof of matters denied during discovery] had been met, the trial court was required to award [respondent] reasonable expenses. It did so and we find no abuse of discretion. (Brooks, supra, 179 Cal.App.3d at p. 512.)

Ibarra argues that the trial courts comments regarding Ibarras failure to amend his responses show the courts error, because he had no continuing duty to amend responses, nor was there evidence that Ibarra later acquired information that made his denials unreasonable. But the courts comments indicate Ibarras failure to amend was one of several factors it considered,^[8]and it made those remarks to clarify that it was making the fee award as a discovery sanction rather than on an alternate theory argued by Oropeza. (See Brooks, supra, 179 Cal.App.3d at pp. 509-511.)

Ibarra argues that he reasonably believed he would prevail at trial because he would not have agreed to represent Rodriguez except for Oropezas oral promise to pay for Rodriguez[s] fees, and he was convinced that Oropeza paid for Rodriguez[s] legal fees using his own . . . funds. Ibarra also claims that Oropeza gained a direct pecuniary benefit in exchange for his oral promise to pay for Rodriguez[s] legal fees because Oropeza was providing Rodriguez and her daughter room and board. In this way any award of support Rodriguez received in the dissolution would make it less expensive for Oropeza to support her. But the trial court rejected Ibarras testimony and each of these arguments, and we will not substitute our determination for the trial courts.^[9]

The case law Ibarra relies on to support his reasonable belief that Oropeza would be found to be the principal debtor, and not a surety or guarantor, is not on point. (Merz v. Poole (1927) 82 Cal.App. 12.) There, a seller of tires declined credit to a truck driver, but later installed two tires on his truck after a third party said he would pay the bill because he owed money to the truck driver. (Id. at pp. 13-14.) The sales slip and ledger sheet confirmed that the tires were charged to the third party. (Id. at p. 15.) No such unequivocal documentation was introduced here to substantiate Ibarras testimony.^[10] Nor was there any preexisting debt owed by Oropeza to Rodriguez that would support the theory he was a surety.

DISPOSITION

The order awarding costs of proof pursuant to section 2033.420 is affirmed.

_________________________

Siggins, J.

We concur:

_________________________

McGuiness, P.J.

_________________________

Parrilli, J.

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^[1] According to the complaint, Rodriguez had approximately $2,000 in cash at the time she retained Ibarra. She gave cash to Oropeza, who deposited it in his checking account before writing checks payable to Ibarra on Rodriguezs behalf. Oropeza never used his own funds to pay Ibarra. The statement of decision reports that during cross-examination, Oropeza admitted Rodriguez occasionally gave him cash after he wrote the checks to Ibarra, and he was not able to recall the exact dates on which Rodriguez gave him cash.

^[2] The matter was submitted for arbitration under the Rules of Procedure of the Bar Association of San Francisco. Rodriguez and Oropeza appeared in propria persona, while Ibarra represented his law offices.

^[3] The requests for admission asked Ibarra to admit that: 6. You did not enter into a verbal agreement with Plaintiff Alex Oropeza that he would act as Ms. Rodriguezs surety in her action for divorce. [] 7. Plaintiff Alex Oropeza did not act as a surety for Ms. Rodriguez in her action for divorce. [] 8. No documents exist evidencing any alleged surety agreement between you and Plaintiff Alex Oropeza that he would act as Ms. Rodriguezs surety in her action for divorce. 13. Defendant Ibarra did not enter into his attorney-client relationship with Alicia Rodrig[]uez under such terms and conditions that Plaintiff became responsible for compensating Defendant Ibarra. 17. Plaintiff obtained no benefit from the attorney-client relationship between Defendant Ibarra and Alicia Rodriguez. [] . . . [] 20. No writing as required by California Civil Code 2793 exists between Plaintiff and Defendant Ibarra. [] 21. Plaintiff and Defendant Ibarra did not enter into any agreement consistent with California Civil Code 2794.

^[4] The court also concluded that the exception to the writing requirement for a suretyship agreement provided by Civil Code section 2794, subdivision (4), did not apply.

^[5] Code of Civil Procedure section 2033.420 authorizes the recovery of reasonable costs of proof, including attorney fees, when a party fails to admit . . . the truth of any matter when requested to do so under this chapter, and . . . the party requesting that admission thereafter proves . . . the truth of that matter . . . . Subsequent statutory references are to the Code of Civil Procedure unless otherwise indicated. Oropezas motion also relied on the attorney fees clause of the retainer agreement between Ibarra and Rodriguez, but the trial court did not rule on that issue.

^[6] Section 2033.420, subdivision (b) provides, in pertinent part: The court shall make this order [for costs of proof] unless it finds . . . . [] (3) The party failing to make the admission had reasonable ground to believe that that party would prevail on the matter. 

^[7] The cited cases discuss former section 2033, subdivision (o). It was renumbered section 2033.420 without substantive changes effective July 1, 2005. (Stats. 2004, ch. 182,  23.)

^[8] If Ibarra had amended his responses before trial, Oropeza would not have incurred the cost of proving the truth of the matters denied. (See Stull v. Sparrow, supra, 92 Cal.App.4th at p. 866 [trial court did not abuse its discretion in determining party was not entitled to costs of proof when defendant who initially denied requests for admissions conceded liability immediately before trial].)

^[9] While Ibarra now also claims the arbitrators ruling in his favor supported his reasonable belief that he would prevail at trial, he did not make that argument below. In any event, the arbitrators ruling was not dispositive, could not bind the trial court, and the arbitration result was not to be used for any purpose. (Cal. Rules of Court, rule 3.826(c).)

^[10] Ibarra relied upon checks from Oropeza, bank statements and Rodriguezs income and expense declaration as circumstantial evidence to support his surety theory, but none of the documents he relied upon established evidence of any debt owing to him from Oropeza.