WILSON > v. > BROWN





















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)

Appeal
from an order of the Superior
Court
of
Los
Angeles County, Reva Goetz, Judge.
Reversed and remanded with directions.

Law Offices of Larry D. Lewellyn and
Larry D. Lewellyn; Mazur & Mazur, Janice R. Mazur and William E.
Mazur, Jr., for Contestant and Appellant and Objector and Appellant
Larry Lewellyn.

Tredway, Lumsdaine & Doyle,
Joseph A. Lumsdaine and Min N. Thai; Law Offices of Robert G. Splinter and
Min N. Thai for Petitioner and Respondent.

Law Offices of Efrem A. Clark and
Efrem A. Clark for Contestant and Appellant Dawn Clark-Johnson.



_______________________________________

























>INTRODUCTION

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 In the unpublished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. We 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.

>FACTUAL AND PROCEDURAL BACKGROUND

As the determination of whether
costs of proof were appropriate involves a consideration of whether Brown had
a reasonable ground to believe that she would prevail on the matters denied, we
must set forth the facts of the underlying dispute in some detail. This case centers around the validity of the July 24, 2003 will of the decedent,
Dorothy Manuel. In that will, the
decedent left all of her property to Wilson, whom she also named as
executor. The contestant of the will is
Brown, who was decedent's second cousin.
Wilson is married to Brown's
son.[1]

Decedent
died on October 14, 2005,
at the age of 99. She was survived by no
children, grandchildren, or siblings.
Decedent's estate consisted largely of her home; the property also
contained two rental units.

1. Decedent's
Stroke and 1999 Mental Examinations

Decedent,
who lived alone, suffered a stroke in 1999. >[2] She was referred for a neurological evaluation. On June
10, 1999, a Mini-Mental State Examination was performed. Decedent scored 12 points out of 30.[3] Decedent could not identify the year, season,
date, day, or month, apparently believing it was November of 1977. When asked to spell the word â€