WILSON
Filed 8/10/10
CERTIFIED
FOR PARTIAL PUBLICATION*
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
THREE
ESTATE OF DOROTHY MANUEL,
Deceased.
___________________________________
TERRI WILSON,
Petitioner
and Respondent,
v.
NANCY L. BROWN,
Contestant
and Appellant;
DAWN CLARK-JOHNSON et al.,
Objectors
and Appellants.
B210701
c/w B215380
(Los Angeles County
Super.
Ct. No. BP095813)
STORY CONTINUE
FROM PART I….
Attorney Clark-Johnson and Attorney
Lewellyn each filed declarations in which they argued their allocation of the
fees awarded should be zero. Both
counsel argued that Brown's denials of the requests for admission, while they
were counsel, were reasonable. In
addition, Attorney Clark-Johnson again argued that costs of proof may not be
awarded against counsel, and both argued
that any award of costs of proof should be limited only to the actual costs of
proof. In response, Wilson
filed an opposition arguing that this hearing was not a motion for
reconsideration of the earlier award of costs of proof. As to allocation, Wilson
indicated that, between the time of Brown's response to the first set of
requests for admission to the time Attorney Clark-Johnson substituted out of
the matter, her fees incurred were $10,153.50, and the fees incurred from
Attorney Lewellyn's substitution to the end of the matter were $42,626.
After
a hearing, the trial court issued the
following ruling in a June 27, 2008 minute order: â€
| Description | Under Code of Civil Procedure section 2033.420, a party who unreasonably denies a request for admission may be required to pay the requesting party its reasonable expenses (including reasonable attorney's fees) incurred in proving the truth of the matter at trial. In this case, a will contestant, Nancy Brown, denied requests for admission which, if admitted, would have resolved the entire case in favor of the executor, Terri Wilson. When Wilson then prevailed at trial, she sought an award of costs of proof in the amount of all of her legal fees incurred after the date of the denial of the requests for admission. The trial court granted the motion, ordering Brown, and her counsel, Attorney Larry Lewellyn and Attorney Dawn Clark-Johnson, to pay Wilson the full amount of her legal fees. In this appeal, we consider whether a costs of proof order may be directed to the denying party's counsel, as well as the denying party. We conclude that costs of proof may be imposed only against a party, not the party's counsel. We therefore reverse that portion of the trial court's order requiring Brown's attorneys to pay a share of the costs of proof in this case. In the unpublished portion of this opinion, we consider whether the trial court properly awarded costs of proof with respect to requests for admission pertaining to every theory on which Brown challenged the will, and, therefore, whether the trial court properly calculated the costs of proof as Wilson's entire attorney fee bill. Court conclude that the trial court abused its discretion, and remand for a recalculation of the costs of proof pertaining only to those requests for admission for which Brown lacked a reasonable ground to believe that she would prevail at trial. |
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