Ramirez v. Matsumoto

Filed 3/28/07 Ramirez v. Matsumoto CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

Defendant Karyl Margaret Matsumoto appeals from a judgment below and from a postjudgment court order that she pay $30,000 in attorney fees to plaintiff Anita Ramirez pursuant to former Code of Civil Procedure[1] section 2033 (former section 2033), subdivision (o),[2] which appeals we consolidated by order dated May 19, 2005. Matsumoto pursues reversal of the court order only in her appellate papers. We affirm.

BACKGROUND

On May 15, 2003, two vehicle collisions occurred minutes apart on Interstate 380 in Daly City, California. As we discuss further, Matsumotos stopped car was rear-ended some minutes later by that of Ramirez. Ramirez was the only one injured, suffering a broken leg. Ramirez sued Garcia and Matsumoto in San Mateo County Superior Court, alleging their negligence caused her injuries. Matsumoto filed a general denial and raised comparative negligence as an affirmative defense.

The Nonbinding Judicial Arbitration

In May 2004, the parties participated in a nonbinding judicial arbitration. The record contains an arbitration award and statement of decision indicating, among other things, that the arbitrator, having considered the evidence of the parties, found that Ramirez had incurred over $42,000 in wage loss and over $75,000 in non-economic damages. The award was rejected, and the parties proceeded with discovery and trial.

Ramirezs Requests for Admissions

After the arbitration, Ramirez propounded requests for admissions and form interrogatories to Matsumoto, who responded in September 2004. Matsumoto did not admit five of the requests, which are relevant to this appeal.

Specifically, in admissions requests Nos. 6, 7, and 8, Ramirez requested that Matsumoto admit she was negligent, and that her negligence was a substantial factor in causing injury and damages to Ramirez. Matsumoto objected that the requests called for admission of a legal conclusion, denied them, and stated in her form interrogatory answers that she believed she operated her motor vehicle as a reasonably prudent person at the time of the accident. She identified only herself as a person with knowledge of facts supporting her responses.

In admissions request No. 10, Ramirez requested that Matsumoto admit Ramirezs past wage loss exceeded $42,000. Matsumoto objected because, among other things, the question called for a legal conclusion, and denied it. In her form interrogatory answer, Matsumoto stated that she denied the request because the difference between Ramirezs 2002 and 2003 W2 forms was only $22.011.34. Matsumoto had no other documents supporting Ramirezs wage loss claim, and there might be workers compensation payments, disability or other payments which reimbursed Ramirez. Matsumoto also stated that she had made reasonable attempts to subpoena Ramirezs employment records, to which Ramirez had objected on the grounds that, as a peace officer, her records were protected and confidential.

In admissions request No. 11, Ramirez requested that Matsumoto admit Ramirez suffered non-economic damages as a result of the incident. Matsumoto objected that the request called for a legal conclusion and was a completely subjective claim only for the objective province of a jury. Matsumoto further stated that she had no personal knowledge upon which she could answer this request.

Matsumoto subsequently filed a motion in limine to preclude Ramirez from introducing wage loss evidence that was not disclosed in discovery. The court summarily denied the motion.

The Trial and Verdict

The parties participated in a three-day jury trial in December 2004, at which both percipient and expert witnesses testified.
Percipient Witness Testimony

Matsumoto testified that on May 15, 2003, she left her house about 7:00 p.m., as the sky was turning to dusk, to attend a meeting. She drove onto I-380 from I-280 going about 60 or 65 miles an hour, three or four car lengths behind the car in front of her, which veered out suddenly from her lane. She then noticed a box or a cabinet that was on the freeway in [her] lane, which was like a kitchen cabinet about three to four feet in measurement. She looked to her left and right and thought that she could not change lanes, so she decided to stop in her freeway lane, which she did, stopping a couple of inches away from the box.

Matsumoto acknowledged that she testified in deposition that her best estimate was that she remained stopped before the box in the middle of the freeway for a minute or two before Garcias car hit hers from behind, but that she also stated in her deposition that it had been seconds. At trial she testified that her longer estimate was not correct. She also testified that she did not put on her emergency flashers after she stopped in front of the box, and that she never considered driving through the box slowly as an option.

Eventually, Garcias car hit Matsumotos from behind. The two drivers left their cars, talked, and walked to the highway median. Sometime later, another car rear-ended Garcias car.

Garcias deposition testimony was read into the record. He first saw Matsumotos car when a truck in front of him veered around it. He was one and a half car lengths behind the truck. Matsumotos car did not have flashers on and there were no flares or cones to warn him that a car was in the road. He was able to slow down to 10 to 15 miles an hour, but hit Matsumotos car nonetheless, and could not start his car afterwards. He put on his emergency flashers.

Garcia further testified that Matsumoto told him she had been in her stopped car calling the highway patrol for like five minutes. He thought the box on the freeway was like the size of a briefcase that was about two feet by one foot by four or five inches high. He thought that the box would not cause danger to Matsumotos car, except [m]aybe on the bottom.

Garcia testified that five to ten minutes after the collision, another car hit his car from behind. He heard the other driver say her leg hurt, and saw that she eventually was taken away in an ambulance.

Parish, a police officer who arrived on the scene after the collisions, described the box as a small size file cabinet type box. Another police officer at the scene, Peutthongvilai, thought it was bigger than a briefcase.

Ramirez testified that she was two car lengths behind a vehicle traveling at about 60 miles an hour just before she collided with another car that was stopped on the freeway. She had no time to apply her brakes.

Ramirez and her boyfriend testified about her injuries. Immediately after the collision, Ramirez felt severe pain in her legs. She was taken to the hospital, where she stayed five or six days. A rod was placed in her leg and morphine was administered. Ramirez had two more surgeries after leaving the hospital. Ramirez and her boyfriend also testified that she had many doctor and physical therapy visits to help her walk again. She needed to use a walker for a few months and a cane for several more, and remained in physical therapy at the time of the trial. Her injuries limited her most basic daily activities, including her interactions with her four-year-old daughter, and her work abilities. She had half a dozen or more scars on her hip, leg and knee area, and her leg was atrophied.

Ramirez further testified that she missed work from May 15, 2003 to January 20, 2004. Her supervisors letter stating wage loss in excess of $42,000 was admitted into evidence. The record also indicates that a videotaped deposition of Dr. Knight, who treated Ramirez for her injuries, was played for the jury as well.

Expert Testimony

Ramirez presented the testimony of an accident reconstruction expert, Clay Campbell, who stated that Matsumoto acted negligently in several ways that contributed to causing the collisions. He testified that Matsumotos inability to avoid the box resulted from her violation of the California standard for safe following distances. Her choice to stop in the middle of the freeway was negligent, as one of the common rules of the road is to not stop on a roadway except in obedience to a traffic law, and to [s]top your car on that freeway as you are coming out of a turn and over a little hill is just inviting the inevitable rear-end collision. Her decision to remain stopped on the freeway was also negligent, and she should have tried to move the box out of the way with her car. Matsumoto was also negligent in failing to put on her emergency flashers. Campbell also testified that both Garcia and Ramirez were too close behind the cars in front of them at the time of their collisions.

Matsumoto presented the testimony of an accident reconstruction expert as well, Jay Mandell. He testified that Ramirez was too close behind the car in front of her to be able to do anything to avoid the collision or reduce her speed. If she had been further behind the car in front of her, she could have either avoided the accident or slowed down sufficiently to greatly reduce the chance she would suffer a broken leg. Mandell did not state any opinions about Matsumotos actions.

The Jurys Verdict and Judgment

The jury found that all three parties were negligent, and that their negligent acts were substantial factors in causing harm to Ramirez. The jury found Ramirez to be 68 percent responsible for her injuries, Matsumoto 25 percent responsible, and Garcia 7 percent responsible, that Ramirez suffered economic damages of over $80,000,[3] and that she suffered non-economic damages, including physical pain and mental suffering, of $10,000. A judgment was filed on December 28, 2004, and a more detailed judgment was filed on January 20, 2005. Ramirezs net judgment against Matsumoto totaled $28,337.64.

The court later indicated it would grant Ramirezs motion for a new trial unless the parties agreed to an additur of $20,000 to the non-economic damage award. The parties filed a stipulation with this court on May 10, 2006, stating the undisputed portion of the judgment against Matsumoto as $29,017.02.

Ramirezs Motion for Attorney Fees

On January 19, 2005, Ramirez filed a motion for $30,000 in attorney fees pursuant to former section 2033, subdivision (o), on the grounds that Matsumoto had failed to admit the requests for admissions,which matters Ramirez proved at trial. Ramirezs counsels declaration stated that Matsumotos failure necessitated that he prepare for and call all the witnesses at trial, prepare for and participate in the depositions of Dr. Knight, Jay Mandell, and Clay Campbell, and prepare for trial. He submitted a breakdown of his hours and activities after November 1, 2004. As evidence in support of her motion, Ramirez submitted the arbitrators award and an incomplete version of the arbitrators three-page statement of decision (containing pages one and three only), among other things.

Matsumoto opposed Ramirezs motion, arguing she had a reasonable ground to believe that she would prevail on the negligence issue, based on her own and Jay Mandells anticipated testimony, and that her reasonableness was indicated by the jurys finding that Ramirez was 68 percent liable. She also argued that Ramirez had no basis for her request because Ramirez precluded her from obtaining wage records from Matsumotos employer, did not produce twice-requested documents prior to propounding requests for admissions, and that the documents produced did not support her claim. Matsumoto also argued that she did not have personal knowledge to be able to either admit or deny whether plaintiff suffered non-economic damages, a request that totally invaded the province of the jury. Matsumoto did not contest the amount of attorney fees Ramirez requested.

At the hearing on Ramirezs motion, Matsumotos attorney again argued that she had a reasonable ground for believing that Matsumoto would prevail on the matter. The court, stating that Matsumoto had denied that she was negligent when it was quite obvious that you are, indicated that it was granting the motion based on Garcia v. Hyster Co. (1994) 28 Cal.App.4th 724 (Garcia), and ordered Matsumoto to pay Ramirez the requested $30,000 in attorney fees.

Appeals

Matsumoto filed timely notices of appeal regarding the verdict and the courts postjudgment order awarding attorney fees, which appeals we consolidated by court order filed on May 19, 2005. As we have already discussed, the parties filed a stipulation with this court on May 10, 2006, stating the total undisputed portion of the judgment. The parties also stipulated that it would be paid, and that payment of the undisputed portion of the judgment . . . is not a waiver of the right to appeal. The right to appeal from the balance of the undisputed portion of the judgment is expressly preserved. The parties further stipulated that this consolidated appeal was limited solely to the propriety of the postjudgment order imposing $30,000 in cost-of-proof sanctions, and Matsumoto pursues reversal of only this postjudgment order in her appellate papers.

DISCUSSION

I.       Legal Standards

A postjudgment order regarding attorney fees under former section 2033, subdivision (o), is an appealable order. (Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 655-656.) Former section 2033, subdivision (o), stated:

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 attorney 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 that party would prevail on the matter, or (4) there was other good reason for the failure to admit. (21-22 Wests Ann. Cal. Codes (1998 ed.), former 2033, subd. (o), p. 317; Stats. 2004, ch. 182, 23, p. 107; Cal. Law Revision Com. com. and Historical and Statutory Notes, Deerings Ann. Code Civ. Proc. (2006 supp.) foll. 2033.420, p. 432.)

The purpose of former section 2033, subdivision (o), like that of requests for admissions, was to expedite trial. (Brooks v. American Broadcasting Co. (1986) 179 Cal.App.3d 500, 509 (Brooks).) Requests for admissions seek to eliminate the need for proof and to set at rest triable issues so that they will not have to be tried. (Stull v. Sparrow (2001) 92 Cal.App.4th860, 865.) In assessing the reasonableness of a partys refusal to admit, the court must consider the responding partys knowledge at the time of the request. (Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618, 637-638 (Wimberly).)

We review the trial courts former section 2033, subdivision (o), ruling for an abuse of discretion (Wimberly, supra, 56 Cal.App.4th at p. 637, fn. 10), which occurs only where it is shown that the trial court exceeds the bounds of reason. [Citation.] 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. (Stull v. Sparrow, supra, 92 Cal.App.4th at p. 864.) [O]ne of the essential attributes of abuse of discretion is that it must clearly appear to effect injustice. (Wimberly, supra, at p. 637, fn. 10.) A court does not abuse its discretion regarding factual findings if they are supported by substantial evidence. (See, e.g., Borissoff v. Taylor & Faust (2004) 33 Cal.4th 523, 531 [[a] discretionary ruling predicated on a required finding of fact is necessarily an abuse of discretion if no substantial evidence supports the facts existence].)

Requests for admissions may . . . require an application of law to fact. (Garcia, supra, 28 Cal.App.4th at p. 735.) Also, if a party denies a request for admission (of substantial importance) in circumstances where the party lacked personal knowledge but had available sources of information and failed to make a reasonable investigation to ascertain the facts, such failure will justify an award of expenses. (Brooks, supra, 179 Cal.App.3d at p. 510 [regarding the predecessor cost-of-proof sanctions statute, Code of Civil Procedure section 2034, subdivision (c)]; accord, Rosales v. Thermex-Thermatron, Inc. (1998) 67 Cal.App.4th 187, 198.)

II. Matsumotos Negligence Denial

A. Proof That Would Not Otherwise Have Been Necessary

Matsumoto argues that even if she had admitted Ramirezs negligence admissions requests, it did not and could not resolve the proportionate liability issue, an issue that necessarily required an examination of the facts supporting and opposing liability, and the requests, therefore, were of no substantial importance. Thus, three of the bases for denying a former section 2033, subdivision (o), motion (that the admissions were not of substantial importance; that Matsumoto had a reasonable ground for believing she would prevail; and that she had other good reason) were met. She also contends that former section 2033, subdivision (o), allowed recovery of attorney fees incurred in making that proof required by the admission denials, and that proof must be interpreted to include only proof that would not otherwise have been necessary, a burden of proof placed upon the moving party. These arguments have been waived.[4]

[A] party is precluded from urging on appeal any point not raised in the trial court. (In re Riva M. (1991) 235 Cal.App.3d 403, 411-412.) The general rule that a legal theory may not be raised for the first time on appeal is to be stringently applied when the new theory depends on controverted factual questions whose relevance thereto was not made to appear at trial.(Bogacki v. Board of Supervisors (1971) 5 Cal.3d 771, 780.) This is grounded on principles of waiver and estoppel, and is a matter of judicial economy and fairness to opposing parties. (Smith v. Commonwealth Land Title Ins. Co. (1986) 177 Cal.App.3d 625, 629-630; see also Garcia, supra, 28 Cal.App.4th at p. 737, fn. 4 [disregarding an argument made on appeal regarding a former section 2033, subdivision (o), motion since no such claim was made below].)

Matsumoto did not present any of her arguments to the trial court below. Ramirezs attorney submitted a declaration and spreadsheet in support of the motion below which indicated the work he did [a]s a result of defendants failure to admit the [admissions] requests. Thus, Ramirez submitted appropriate evidence of expenses incurred in making proof regarding matters Matsumoto would not previously admit. Matsumoto, while she opposed the motion as stated herein, did not challenge the reasonableness of the fees requested, or that they were incurred to prove the matters to which she had not previously admitted. Her new arguments on appeal raise disputed factual questions regarding what Ramirez would have needed to prove at trial if Matsumoto had admitted her negligence. Matsumoto contends that she is raising purely legal questions, such as that the term that proof in the statute must be interpreted to mean only proof that would otherwise be necessary. However, she does so in order to raise factual issues about the propriety of Ramirezs fee requests, which issues she did not first raise below. Accordingly, Matsumoto has waived her arguments on appeal.

B. Genuinely Disputed

Matsumoto next argues that the trial court abused its discretion because the negligence admission was genuinely disputed, and that Matsumoto had a reasonable ground for believing she would prevail on the matter based on her anticipated testimony and that of her expert, Jay Mandell, a highway patrol report, and her imminent peril argument. These arguments lack merit.

Matsumoto apparently takes her genuinely disputed language from Hillman v. Stults (1968) 263 Cal.App.2d 848, which states that requests for admissions, while they serve to eliminate the necessity for putting on formal proof of essentially uncontroverted facts, are not a substitute for trial of genuinely disputed facts. (Id. at p. 885.) Matsumoto construes this statement far too broadly. The Legislature clearly articulated the standards to be followed in former section 2033, subdivision (o) which, as we have already discussed, stated that the court shall grant the motion if the moving party proved matters at trial for which admissions were previously made, unless, among other things, [t]he party failing to make the admission had reasonable grounds to believe that that party would prevail on the matter. (Former 2033, subd. (o)(3), italics added.) Under former section 2033, subdivision (o), it was not sufficient to genuinely contest a matter if that phrase is construed so broadly as to include any genuine argument made; one also had to have a reasonable ground for believing that one would prevail on the issue.[5] (See Brooks, supra, 179 Cal.App.3d at p. 511 [regarding the predecessor cost-of-proof sanctions statute, Code of Civil Procedure section 2034, subdivision (c), the court disagreed with another courts suggestion that it was sufficient to hotly contest the issue, stating there must be some reasonable basis for contesting the issue in question before sanctions can be avoided].)

The trial court rejected Matsumotos contention that she had a reasonable ground to deny negligence when she responded to Ramirezs request, and found that it was obvious that she was negligent. Substantial evidence supports the courts finding, given Matsumotos admitted actions at the scene and Clay Campbells expert testimony. Matsumoto did not contest that she followed closely behind a vehicle, stopped in front of the box, remained stopped, and did not put on her cars emergency flashers. Campbell testified that Matsumotos actions were negligent, including her driving too close to the car in front of her in violation of the California Drivers Handbook. Matsumotos actions prevented her from driving around the box; stopping on the freeway; remaining stopped on the freeway for some time (Garcias testimony constituted substantial evidence that she was there for five minutes) before Garcias car rear-ended her own; and her failure to put on her emergency flashers at any time.

Matsumoto did not offer any evidence to counter Campbells testimony that she was negligent, relying instead on her own attorneys arguments. He argued, among other things, that Matsumoto acted reasonably in light of the sudden emergency she found herself in, which Matsumoto contends amounted to imminent peril.[6] The court did not find this argument persuasive. We have no reason to disturb the courts exercise of its discretion in light of the evidencepresented below, which plainly indicated that Matsumoto created the situation in which she found herself by her own negligence. That evidence existed indicating that Ramirez was also negligent, such that the jury found her most responsible for her injuries, does not affect the compelling nature of the evidence of Matsumotos own liability.

Furthermore, Matsumotos argument in the trial court below that she denied negligence based on Jay Mandells anticipated expert testimony was just that, argument. Matsumoto did not submit any declaration or other evidence that she was aware of Mandells views when she responded to the admissions request in September 2004. While she attached several pages of Mandells deposition to her opposition, they were undated. One could reasonably conclude it took place after Matsumotos responses because Mandell stated in the deposition that he spent 20-25 hours through November 5th on the case.

Matsumoto also argues that a highway patrol report concluding that Ramirez was at fault in the collision with Garcia for driving at an unsafe speed further shows that Matsumoto had a reasonable ground for denying negligence liability. The report, however, discusses only the collision between Ramirez and Garcia, states no determination about Matsumotos conduct, and does not indicate that the officers took into account anything relating to Matsumoto in their review.[7] Matsumoto also did not indicate below, such as by declaration, that she knew of the report at the time she responded to Ramirezs admissions requests. Thus, this document has little if any bearing on the issues before us.

Finally, the trial courts view of what was reasonable necessarily included its view of Matsumotos and the other 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 . . . . [Citation.] (Gonzales v. Gonzales (1968) 267 Cal.App.2d 428, 432.) We will not interfere with the courts determinations of witness credibility.

For all of these reasons, the trial court did not abuse its discretion in determining that Matsumoto did not have a reasonable ground for believing she would prevail on the negligence issue when she denied Ramirezs admission requests.

C. Garcia v. Hyster Co.

Matsumoto next argues that the trial court erred by relying on Garcia, supra, 28 Cal.App.4th 724, apparently to show that the trial court abused its discretion in doing so. Matsumoto is incorrect.

The court in Garcia, supra, 28 Cal.App.4th 724, ruled that a court could award attorney fees pursuant to former section 2033, subdivision (o) because of a partys failure to admit negligence liability. The court stated: [Appellant] seeks to justify its denial of the requested admissions on the grounds that they called for opinion or conclusions of fact. . . . This is not well taken. A request for admissions may properly be used to establish opinions relating to fact. [Citation.] A request for admissions may also require an application of law to fact. (Id. at p. 735.)

This holding is relevant because Ramirez requested that Matsumoto admit her negligence, which required the application of law to fact, Ramirez repeatedly objected that the requests sought a legal conclusion, and because Matsumoto insisted in her opposition below that, one of the admissions requests totally invaded the province of the jury.

Matsumoto ignores this part of the holding of Garcia, supra, 28 Cal.App.4th 724, seeking instead to distinguish the cases facts from the present case. We do not agree with Matsumotos interpretation of the facts in Garcia, which are sufficiently analogous to those in the present case to support the trial courts ruling, since the Garcia court determined that an unreasonable denial of negligence in response to an admissions request was a basis for former section 2033, subdivision (o) sanctions. Regardless, nothing in the record indicates that the trial court based its ruling on any contrary facts stated in that case. In short, Matsumotos argument lacks merit.

D. Contradictory Findings

Matsumoto next contends that the trial court abused its discretion by making contradictory findings about the reasonableness of Matsumotos denial of liability. This too is incorrect. Matsumotos argument is based on the following exchange at hearing:

[MATSUMOTOS COUNSEL]: . . . So it doesnt appear to me that any of the denials were done, if you will, in bad faith or without a reasonable basis.

THE COURT: Of course they werent, Mr. Rosenbaum. The only reason there were problems is because youre such a good lawyer and you caused this cloud of doubt to be raised and caused Mr. Morrison lots and lots of effort to establish clearly that your client was negligent.

There is no indication that the court intended this exchange to be a finding. Regardless, it is not evidence of the court making a finding that contradicted its other findings in light of Matsumotos counsels confusing statement and the courts further comments. Counsel employed multiple negatives to state, in effect, it appears to me that all of the denials were done in good faith and with reasonable basis. The courts reply, [o]f course they werent, suggests as much as anything that the court was disagreeing with counsel and stating that the denials were not reasonable. In any event, the courts further comment that only counsels lawyering had raised any doubt, when the negligence was in fact clear, is consistent with its other findings.

Matsumoto argues that the court abused its discretion by penalizing counsel for Matsumoto for zealously and effectively representing his client by disputing liability in good faith, that the trial court essentially stripped Matsumoto of her valid right to defend her case, and that the courts ruling negatively affects discovery in other cases, by encouraging the threat of potentially large fee awards that could be used by counsel to coerce admissions early in the case. We disagree. Our review of the record leads us to conclude that the court followed its duties and discretionary authority pursuant to former section 2033, subdivision (o).

E. Wage Loss

Matsumoto argues on appeal that the trial court erred in failing to assess good reason for Matsumotos failure to admit a specific amount of wage loss. This argument also lacks merit.

Matsumoto denied that Ramirezs past wage loss exceeds $42,000. Rather than state a specific exception to sanctions listed in former section 2033, subdivision (o), she merely contended vaguely below that Ramirez had no basis for her attorney fee request because Ramirez precluded her from obtaining wage records from Matsumotos employer, did not produce requested documents prior to propounding requests for admissions, and produced documents that did not support her wage loss claim.

Matsumoto argues for the first time on appeal that these actions constitute other good reason for denying the subject request for admission and, therefore, the courts ruling should be reversed. As a preliminary matter, Matsumoto failed to assert this other good reason ground below. Since the argument is based on disputed factual questions about Ramirezs acts in discovery, Matsumoto has waived the argument for the reasons already stated in part II.A., ante.

Second, assuming for the sake of argument that no waiver has occurred here, and regardless of Matsumotos contentions about Ramirezs actions in discovery, the trial court could reasonably infer from the record before it that Matsumoto had knowledge in September 2004 that Ramirezs past wage loss exceeded $42,000. The May 2004 arbitration award and statement of decision indicate that the arbitrator found, based upon the evidence presented, that Ramirez had suffered wage loss in excess of that amount. Ramirez referred to the award in her papers below and submitted the award and pages from the statement of decision in support of her motion, but Matsumoto did not address them in her opposition. Matsumoto also did not dispute Ramirezs past wage loss contentions at trial.

Matsumoto argues for the first time on appeal that we cannot consider the statement of decision because it is missing a page. She also argues that the properly rejected arbitration award could not form the basis for the trial courts imposition of sanctions, that Ramirezs reference to the award was inappropriate, and that Ramirezs reference to and reliance on the rejected arbitration award is improper and should be disregarded, if not wholly stricken, from her appellate brief. The gist of Matsumotos argument is that a timely request for a trial de novo operates to vacate the arbitration award in its entirety, putting the case at large as though no arbitration proceeding had occurred, and any reference to it after that time is prohibited and against the public policy reasons for non-binding judicial arbitrations pursuant to California Rules of Court, rule 1616, as well as Quan v. Truck Ins. Exchange (1998) 67 Cal.App.4th 583, 601, and Southern Pacific Transportation Co. v. Mendez Trucking, Inc. (1998) 66 Cal.App.4th 691, 695, among other cases.[8] Ramirez responds that rule 1616 of the California Rules of Court bars reliance on an arbitration award during trial, as indicated in the case law, but that the authority that Matsumoto cites does not apply to rulings on collateral issues after trial (such as regarding a postjudgment order) and arbitration award evidence that is not offered to affect the verdict.

We refer to the arbitrators award and statement of decision only because they suggest Ramirez introduced evidence of wage loss in excess of $42,000 in that proceeding.[9] Matsumoto bore the burden of establishing a valid reason for her denial of her admission request and, in that light, her failure to address the implication that she had knowledge of wage loss from the arbitration proceedings was sufficient reason for the courts ruling under an abuse of discretion standard of review.

Nonetheless, we need not determine the issue of whether the arbitration award or statement of decision[10] should have been considered by the trial court in ruling on Ramirezs motion, for a simpler reason, also argued by Ramirez. Evidence Code section 353, subdivision (a), states that a finding shall not be set aside, nor shall the . . . decision based thereon be reversed, by reason of the erroneous admission of evidence unless . . . [] There appears of record an objection to or motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion. Matsumoto made no such objection or motion below. Accordingly, she has waived these arguments on appeal.

F. Non-Economic Damages

Finally, Matsumoto argues that trial court abused its discretion regarding her failure to admit to Ramirezs non-economic damages. Matsumoto asserts numerous arguments, none of which has merit.

Matsumoto did not dispute at trial that Ramirez was injured in the collision and endured pain and suffering as a result. Matsumoto neither admitted nor denied the subject admissions request, stating instead the objection that the question calls for legal conclusion and a completely subjective claim only for the objective province of the jury. In her form interrogatory responses and opposition below, she asserted a lack of personal knowledge and that the issue was the province of the jury to determine.

Matsumoto did not state sufficient reasons for her failure to admit the subject admissions request. As we already have discussed, requests for admissions may seek admissions as to opinions and legal issues. (Garcia, supra, 28 Cal.App.4th at p. 735.) Also, a party responding to requests for admissions has a duty to investigate when one lacks personal knowledge of the issue involved. (See Brook, supra, 179 Cal.App.3d at p. 510; accord, Rosales v. Thermex-Thermatron, Inc., supra, 67 Cal.App.4th at p. 198.)

Furthermore, the trial court could reasonably infer from the arbitration award and statement of decision that evidence of Ramirezs non-economic damages was presented at the arbitration for the same reasons as we have discussed in part II.E., ante. It could also be reasonably inferred from the evidence at trial, such as Garcias testimony about Ramirezs removal by ambulance, that Ramirez suffered immediate and obvious physical injury at the scene of the collision, where Matsumoto was present.

Matsumoto argues that she did not deny the subject request and, therefore, that former section 2033, subdivision (o), sanctions should have been denied pursuant to Smith v. Circle P Ranch Co. (1978) 87 Cal.App.3d 267, 273. Matsumotos reliance on Smith is misplaced, however, because its holding relied on language in the sanctions statute, then Code of Civil Procedure section 2034, subdivision (c), which was significantly different than that contained in former section 2033, subdivision (o). Section 2034, subdivision (c) stated in relevant part:

If a party, after being served with a request under [former] Section 2033 of this code to admit the genuineness of any documents or the truth of any matters of fact, serves a sworn denial thereof and if the party requesting the admissions thereafter proves the genuineness of any such document or the truth of any such matter of fact, he may apply to the court in the same action for an order requiring the other party to pay him the reasonable expenses incurred in making such proof, including reasonable attorney fees. (Smith v. Circle P Ranch, supra, at pp. 273-274, 277.)

Former section 2033, subdivision (o), on the other hand, allowed sanctions if a party fails to admit . . . the truth of any matter when requested to do so under this chapter . . . . (21-22 Wests Ann. Cal. Codes (1998 ed.), former 2033, subd. (o), p. 317; Historical and Statutory Notes, Deerings Ann. Code Civ. Proc. (2006 supp.) foll.  2033.420, p. 432.) Therefore, Matsumotos failure to admit or deny falls within the ambit of former section 2033, subdivision (o).

Matsumoto also makes a number of arguments for the first time on appeal. She contends cost of proof sanctions are inappropriate because Ramirez waived any further response to the request under section 2033, subdivision (l). She properly objected to Ramirezs request since it was incapable of independent verification by Matsumoto, constituting other good reason defense against sanctions; and even if she had denied the request, Ramirez still was required to prove the matter. Each of these arguments require certain factual findings, none of which were considered by the court below. Therefore, Matsumoto has waived these arguments on appeal for the reasons already stated in part II.A., ante.

Finally, Matsumoto argues that she reasonably denied negligence and, by extension, reasonably denied non-economic damages. This argument is without merit because Matsumoto did not reasonably deny negligence.

III. Appeal From the Judgment

Matsumoto filed an appeal from the December 28, 2004 judgment which was consolidated with her appeal of the postjudgment order. Regardless of the parties stipulation about the scope of this consolidated appeal, the appeal of the judgment remains pending and Matsumoto has not raised arguments relating to it. Consequently, any challenge to that judgment has been waived.

DISPOSITION

The order and judgment appealed from are affirmed. Respondent is awarded costs.

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Lambden, J.

We concur:

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Kline, P.J.

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Richman, J.

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[1] All further unspecified code sections refer to the Code of Civil Procedure.

[2] Former Code of Civil Procedure section 2033, subdivision (o) since has been renumbered section 2033.420 without substantive changes, effective July 1, 2005. (Stats. 2004 ch. 182 23, p. 107; Law Revision Com. com., Deerings Ann. Code Civ. Proc. (2006 supp.) foll. 2033.420, p. 432.) All references to section 2033, subdivision (o), herein are to this former code section, pursuant to which Ramirez moved for attorney fees below, although the parties refer to section 2033.420 in their appellate papers because it is the current section number.

[3] The parties stipulated during trial that Ramirezs past paid medical expenses were $35,002.62.

[4] Matsumoto also argues briefly that [w]here, as here, plaintiff Ramirez herself was found to have nearly three times the proportionate liability of the defendant,Matsumoto, as a matter of law, had reasonable grounds for denying the requested admission. She fails to cite any authority to support this proposition, and we are not aware of any. Therefore, we reject the argument.

[5] In his reply brief, Matsumoto argues for the first time that courts require proof positive of a partys unreasonableness under former section 2033, subdivision (o), such as when a party denied matters and failed to contest them at trial, citing Wimberly, supra, 56 Cal.App.4th at p. 635, and Garcia, supra, 28 Cal.App.4th at pp. 734-735. Once more, Matsumoto puts forward an interpretation of former section 2033, subdivision (o), for the first time on appeal that involves factual determinations (regarding what evidence was proof positive of unreasonableness) and, therefore, has been waived for the reasons stated in part II.A., ante. Assuming no waiver for the sake of argument, Matsumotos interpretation is not referred to in the cases cited, is not included in former section 2033, subdivision (o), and is inconsistent with its stated terms, which are that the court shall order sanctions unless, among other things, it determines that the party denying the admission had reasonable grounds to believe that that party would prevail on the matter. (Former 2033, subd. (o)(3).)

[6] Matsumoto also contends in her appellate papers that the trial court erred in instructing the jury that the issue of imminent peril was a consideration rather than a complete defense. Matsumoto does not assert any proper objection was made of this supposedly incorrect instruction, nor does she appeal the issue. Her argument is not a proper subject of this appeal and we disregard it.

[7] The reports use at trial is unclear from the record. Ramirezs attorney, who submitted the document to the court below in support of Ramirezs motion for attorney fees, stated in his declaration that the report was not admitted into evidence, although it was allowed to go into the jury room during deliberations and to be reviewed by the jury.

[8] Matsumoto also argues that the trial court should not have relied on the arbitration award in light of Ramirezs motion for a new trial. That matter is also not before us, and we disregard the argument.

[9] We also refer to the arbitration award and statement of decision in part II.F., post, in our discussion of non-economic damages. In her respondents brief, Ramirez argues that the award itself, and the percentages of fault attributed to the parties by the arbitrator, were further evidence that Matsumoto did not have a reasonable ground for denying her negligence liability in response to the negligence admissions requests. The overwhelming evidence at trial of Matsumotos negligence, and Matsumotos failure to establish a reasonable ground for denying this negligence when she responded to the requests, is sufficient to affirm the trial courts ruling without further consideration of the arbitration documents.

[10] We note that Ramirezs motion was based in part on the papers and pleadings in this action, which included what appears to be a complete statement of decision, filed regarding a previous motion.