Filed 2/23/22 Marquis Partnership v. Weddle CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of Monterey County, Susan J. Matcham and Lydia M. Villarreal, Judges. Affirmed.

Patric H.R. Weddle for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Theresa Weddle appeals an order denying her postjudgment motion for costs of proof of matters Marquis Partnership (Marquis) refused to admit when asked to do so during discovery in a legal malpractice action. After having been given multiple opportunities to provide adequate documentation of the matters Weddle contended she had to prove because of Marquis’s refusals and of the attorney fees and costs she incurred in proving those matters, she failed to do so. We therefore affirm.

BACKGROUND

Marquis sued Weddle’s husband for damages for legal malpractice and breach of fiduciary duty in his representation of Marquis in a bankruptcy proceeding. Weddle’s husband served Marquis with 131 requests for admission, which asked Marquis to admit it had no knowledge of any facts or documents supporting the allegations of its complaint, it had no expert witness to support its contentions, no act or omission of Weddle’s husband caused Marquis any injury, and other facts and contentions that tended to defeat Marquis’s claims. Marquis admitted 25 of the requests and denied the rest.

Weddle’s husband died before the malpractice action went to trial, and Weddle, as his successor in interest, substituted herself as the defendant. There was no court reporter at the trial. The trial minutes state Marquis called one of its partners and Weddle’s attorney to testify and introduced a copy of a bankruptcy petition and portions of Weddle’s husband’s deposition transcript. After Marquis presented this evidence, the court granted Weddle’s motion for nonsuit and entered judgment for Weddle against Marquis.

Weddle filed a motion to recover the attorney fees and other costs she incurred in proving matters Marquis refused to admit in discovery. (See Code Civ. Proc., § 2033.420.)[1] Weddle listed 43 requests for admission that Marquis allegedly unreasonably denied, but she neither identified the corresponding proof she put on to prove the matters denied nor itemized the attorney fees or other costs she incurred in putting on that proof. Marquis filed no opposition to the motion. The trial court held a hearing at which it discussed with Weddle’s counsel the papers submitted in support of the motion, denied the motion with leave to amend, and granted Weddle one month to submit an itemization of fees and costs related to each request for admission that was denied.

Weddle filed a renewed motion that reduced to 14 the number of denied requests for admission for which she sought recovery of costs of proof. Those requests asked Marquis to admit it knew of no facts supporting allegations of its complaint that Weddle’s husband was negligent and breached fiduciary duties and thereby caused Marquis damages, to admit it knew of no facts and had no expert witness sufficient to support a prima facie case of legal malpractice, and to admit no act or omission of Weddle’s husband proximately caused Marquis damages. As the explanation of how she proved these matters, Weddle repeatedly stated Marquis presented no expert witness, no percipient witness, or no other admissible evidence to prove its malpractice case. Weddle’s counsel submitted a declaration that described the nature of the work he had done and the number of hours he had spent to prepare for trial, but did not allocate the time spent or fees charged for proving the matters Marquis had refused to admit in discovery. Weddle also submitted invoices for the experts she retained to defend the malpractice case and for the court reporter who transcribed the deposition of a witness. Marquis did not oppose the renewed motion for costs of proof.

At the hearing on the renewed motion, the trial court stated its recollection that it had granted the motion for nonsuit because Marquis had failed to produce evidence of malpractice on the part of Weddle’s husband, and told Weddle’s attorney he needed to show what he had done to prove the lack of malpractice. It seemed to the court “that the work that [counsel] did that was needed to highlight this lack of proof, was the fact that [counsel] did get an expert,” and the court said it was “willing to award attorney fees for any time that [counsel] spent in obtaining the expert, communicating with the expert, meeting with the expert.” The court also advised counsel to submit any settlement offer Marquis rejected so that the court could award expert witness fees Weddle incurred after the rejection. (See Code Civ. Proc., § 998, subd. (c)(1).) The court continued the hearing for two weeks and directed Weddle’s counsel to submit the rejected settlement offer and evidence of the time he had spent proving there was no legal malpractice.

On the day the additional documents were due, Weddle’s counsel filed a declaration that generally described the work he had done defending the malpractice case and the settlement offer Marquis rejected, but did not include a copy of the settlement offer or the exhibit referenced in the declaration that purportedly itemized the costs of proof Weddle sought to recover. The following day, Weddle’s counsel filed a “companion declaration” that attached the exhibit referenced in but not attached to the declaration counsel had filed the previous day. The exhibit contained 208 entries describing counsel’s preparation of the requests for admission and tasks he performed after Marquis responded to the requests and listing the time counsel spent on the tasks. The companion declaration did not attach the settlement offer Marquis had rejected.

At the continued hearing on Weddle’s renewed motion for costs of proof, the trial court stated it had received neither the settlement offer nor the itemization of attorney fees it had asked counsel to submit. Counsel responded the omission of the settlement offer was a mistake and he submitted the itemization for electronic filing on the due date, but it was rejected because it contained a blank page.[2] Counsel asked the court to continue the hearing one more time or to take the matter under submission, but the court refused to do so and denied the motion.

Weddle next filed a motion for reconsideration of the order denying her renewed motion for costs of proof. (See Code Civ. Proc., § 1008.) As “new facts” purportedly justifying reconsideration, Weddle relied on the settlement offer and the exhibit itemizing attorney fees, which were filed in support of the renewed motion after the deadline the trial court had set. Weddle alternatively argued the court should vacate the order denying the renewed motion for costs of proof and consider it on its merits, on the ground she failed timely to file the supporting documents due to “mistake, inadvertence, surprise, or excusable neglect” (Code Civ. Proc., § 473, subd. (b)), namely, the court clerk’s delay in processing the documents and counsel’s distraction by a sick wife and an irritable child. Marquis did not oppose the motion. The trial court held a hearing and took the motion under submission to review the exhibit itemizing attorney fees.[3] In a subsequent written order, the court granted reconsideration; denied the renewed motion to the extent it sought costs of proof of matters Marquis refused to admit in discovery, because the itemization Weddle had submitted “d[id] not include a clear indication of the fees associated with the work to prove which [request for admission] [Weddle] purports [Marquis] should have admitted”; and granted the renewed motion to the extent it sought expert witness fees incurred after Marquis rejected Weddle’s settlement offer.

DISCUSSION

Weddle now attacks the order denying her renewed motion for costs of proof of matters Marquis denied in response to her requests for admission. She argues for a de novo standard of review, on the grounds costs of proof are “mandatory” based on the nonsuit, the timeliness of her filings is a question of law, and the reconsideration motion involved application of law to undisputed facts. Weddle alternatively argues that if we do not reverse or substantially modify the trial court’s decision based on de novo review, we should apply the abuse of discretion standard and reverse. Weddle does not clearly set out distinct claims of error with supporting arguments in her brief. From the various contentions scattered throughout her brief, we distill two claims that appear to be related: (1) an award of costs of proof was mandatory because Marquis denied multiple requests for admission designed to show it had no evidence to support its legal malpractice case and later suffered a nonsuit at trial; and (2) once the trial court determined Weddle was entitled to costs of proof based on Marquis’s failure to present a prima facie case at trial, the court had a duty to award a reasonable amount of costs based on Weddle’s unopposed submissions and could not award nothing based on the untimeliness or other deficiencies in her submissions. Weddle asks this court to reverse the trial court’s order denying her renewed motion for costs of proof and “grant (or on remand order the [trial] court to grant) an award of the applicable mandatory costs of proof (which include applicable reasonable attorney fees).”

We first determine the applicable standard of review. This and other appellate courts have routinely reviewed trial court rulings on cost-of-proof motions for abuse of discretion. (E.g., Yoon v. Cam IX Trust (2021) 60 Cal.App.5th 388, 391-392 (Yoon); Orange County Water Dist. v. The Arnold Engineering Co. (2018) 31 Cal.App.5th 96, 118; Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 903-904 (Carlsen); Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618, 637, fn. 10 (Wimberly).) A case Weddle repeatedly cites states that “[t]he determination of whether ‘there were no good reasons for the denial,’ whether the requested admission was ‘of substantial importance,’ and the amount of expenses to be awarded, if any, are all within the sound discretion of the trial court.” (Brooks v. American Broadcasting Co. (1986) 179 Cal.App.3d 500, 508 (Brooks); accord, Bloxham v. Saldinger (2014) 228 Cal.App.4th 729, 753.) It is also “entirely within the trial court’s discretion to determine whether a party proved the truth of matter that had been denied.” (Stull v. Sparrow (2001) 92 Cal.App.4th 860, 865 (Stull).) Of course, if the determination of entitlement to costs of proof turns entirely on interpretation of the statute, review is de novo. (Design Built Systems v. Sorokine (2019) 32 Cal.App.5th 676, 694.) The trial court here denied Weddle costs of proof because she had not adequately shown she incurred attorney fees and other costs in proving at trial any specific matter Marquis refused to admit in discovery. “Because the trial court supervises discovery and presides over trial, it is in a much better position to weigh these considerations and decide whether, in its discretion, the party who made the denials should be responsible for costs of proof on the issue.” (Orange County Water Dist., at p. 119.) We therefore review the trial court’s determination for abuse of discretion.

An abuse of discretion occurs when the trial court exceeds the bounds of reason. (Carlsen, supra, 227 Cal.App.4th at p. 904; Stull, supra, 92 Cal.App.4th at p. 864.) “Abuse of discretion has at least two components: a factual component that is governed by a standard such that the substantial evidence must support the court’s findings and a legal component” that requires the court to exercise its authority “ ‘in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.’ ” (Concord Communities, L.P. v. City of Concord (2001) 91 Cal.App.4th 1407, 1417; see Wimberly, supra, 56 Cal.App.4th at p. 637, fn. 10 [“ ‘[O]ne of the essential attributes of abuse of discretion is that it must clearly appear to effect injustice’ ”].) Under this deferential standard of review, we must uphold the trial court’s decision if it is reasonable, even if we disagree with it. (Carlsen, at p. 904; Stull, at p. 864.) As we discuss below, Weddle has not shown the trial court acted unreasonably by denying her renewed motion for costs of proof.

We reject Weddle’s contention an award of costs of proof was “mandatory” in this case. “Expenses of proving disputed facts which an opposing party denies in response to a request for admission are not recoverable simply because the party promulgating the request prevails at trial.” (Brooks, supra, 179 Cal.App.3d at p. 513; accord, Yoon, supra, 60 Cal.App.5th at p. 394.) Costs of proof are recoverable if a party “fails to admit . . . the truth of any matter when requested to do so” in discovery and the requesting party “thereafter proves . . . the truth of that matter.” (Code Civ. Proc., § 2033.420, subd. (a), italics added.) Thus, proof of the matter denied is an express statutory requirement for recovery. (Stull, supra, 92 Cal.App.4th at p. 865.) “ ‘Proof’ is the establishment by evidence of a requisite degree of belief concerning a fact in the mind of the trier of fact or the court.” (Evid. Code, § 190.) “This means evidence must be introduced.” (Grace v. Mansourian (2015) 240 Cal.App.4th 523, 529 (Grace).) “Until a trier of fact is exposed to evidence and concludes that the evidence supports a position, it cannot be said that anything has been proved.” (Stull, at pp. 865-866.) Weddle has not shown she proved anything at trial. The trial minutes state that after Marquis presented two witnesses and several documents, the court granted Weddle’s motion for nonsuit “for reasons stated.” Because there was no court reporter at trial, however, we know neither the substance of the evidence Marquis presented nor the court’s reasons for granting the nonsuit motion. It is possible that the court concluded Marquis had put on no evidence at trial to sustain an essential element of its legal malpractice case and that Weddle had requested Marquis to admit in discovery it had no evidence of that element. Even if that sequence of events would constitute “proof” of a matter Marquis denied, without a reporter’s transcript of the trial we cannot be sure that is what happened. Weddle’s failure to provide a record adequate for meaningful review requires us to resolve the issue against her. (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609; Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.)

Weddle repeatedly asserts the granting of her nonsuit motion after Marquis finished its case-in-chief is “equivalent” to the proof required to recover costs under Code of Civil Procedure section 2033.420, and she cites as support Doe v. Los Angeles County Dept. of Children & Family Services (2019) 37 Cal.App.5th 675 and Garcia v. Hyster Co. (1994) 28 Cal.App.4th 724. We disagree. In the cases Weddle cites, the defendant was awarded costs of proof after its nonsuit motion was granted because the record clearly showed that matters the plaintiff had denied in discovery were proved by evidence presented in the plaintiff’s case-in-chief. (Doe, at pp. 690-692 [during plaintiff’s case-in-chief defendant presented evidence of dates of events plaintiff refused to admit in discovery]; Garcia, at p. 735 [during its case-in-chief plaintiff in intervention presented evidence of negligence it had denied in discovery].) The record here, however, does not show proof at trial of any particular matter Marquis denied in discovery. The only document in the record Weddle cites in support of her contention is an unfiled copy of a notice of errata to her oral motion for nonsuit, which she submitted “largely for clarification and organizational purposes and as use as an exhibit.”[4] (Bolding omitted.) This document, which contains unsworn averments and arguments by counsel and no indication any of its contents were adopted or even considered by the trial court, is insufficient to establish any specific matter was proved at trial, let alone any matter Marquis was requested and refused to admit in discovery. Weddle thus has not sustained her burden on appeal to cite evidence in the record that supports her contention. (Cal. Rules of Court, rule 8.204(a)(1)(C); Centex Homes v. St. Paul Fire & Marine Ins. Co. (2018) 19 Cal.App.5th 789, 802.)

We also reject Weddle’s contention that the trial court determined that she met the statutory requirements for recovery of costs of proof and therefore the court was required to award her at least some of her claimed costs despite any untimeliness or other deficiencies in the papers she submitted. Weddle is correct that “if the trial court exercises its discretion and determines that the requirements of the statute exist, reasonable expenses must be awarded.” (Brooks, supra, 179 Cal.App.3d at p. 508.) But the trial court made no such determination in this case. At the initial hearing on the renewed motion for costs of proof, the court stated it was willing to award costs, but before it could do so Weddle’s counsel needed to submit documents showing the time he spent with an expert witness and doing other work to prove the lack of malpractice by Weddle’s husband. This was no more than a tentative decision to award costs of proof subject to receipt of proper documentation and was not binding on the court. (Magno v. The College Network, Inc. (2016) 1 Cal.App.5th 277, 285, fn. 2 [tentative ruling not binding on trial court]; Wilshire Ins. Co. v. Tuff Boy Holding, Inc. (2001) 86 Cal.App.4th 627, 638, fn. 9 [appellant could not rely on tentative comments from which trial court departed in final ruling].)

After the trial court did not receive the requested documentation on time, it committed no prejudicial error at the continued hearing by refusing to take the renewed motion for costs of proof under submission or to continue the hearing again. Weddle faults the clerk for wrongfully rejecting her counsel’s declaration attaching the exhibit itemizing attorney fees and then delaying the filing once it was resubmitted, and she faults the court for inappropriately setting the deadline for the filing too close to the continued hearing. She admits, however, “[t]he delay was essentially deemed excused or forgiven following the acceptance of a timely motion for [re]consideration where the previously ‘unavailable’ [exhibit itemizing attorney fees] was subject to [Code of Civil Procedure section] 1008 reconsideration review.” Indeed, the trial court granted reconsideration of the order denying the renewed motion for costs of proof, considered the exhibit, found it inadequate to support an award of costs, and again denied the renewed motion. Since the trial court eventually considered the exhibit, Weddle suffered no prejudice from the court’s earlier refusal to consider it in connection with the continued hearing on the renewed motion.

Finally, we conclude the trial court committed no error in determining Weddle had not adequately documented her claimed costs of proof. She had the burden to show the costs she incurred to prove matters Marquis refused to admit in discovery and to segregate those amounts from costs incurred to prove other matters. (Grace, supra, 240 Cal.App.4th at p. 529.) To meet this burden, a practice guide advises attorneys: “Carefully track your time and costs associated with proving matters on an issue-by-issue (RFA-by-RFA) basis to facilitate granting of your motion for compensation.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) ¶ 8:1413.1b, p. 8G-41.) Weddle did not heed that advice. Her costs itemization contains 208 entries for attorney fees and other costs incurred from the date counsel served the requests for admission through the date he filed the exhibit. Only costs of proof incurred after a request for admission has been denied may be recovered, however. (Code Civ. Proc., § 2033.420, subd. (a); Wimberly, supra, 56 Cal.App.4th at p. 638.) The vast majority of the entries is for work Weddle’s counsel did in litigating the case that have no apparent nexus to proving at trial any specific matter Marquis denied in discovery (e.g., reviewing discovery responses, communicating with opposing counsel about responses, preparing motions to compel further responses, and attending the hearing on the motions; preparing a deposition subpoena of a Marquis partner and attending the deposition; researching legal issues in the case; preparing a motion for summary judgment and related declarations; consulting expert witnesses and otherwise preparing for trial). “[P]reparation for trial . . . is not the equivalent of proving the truth of a matter so as to authorize an award of attorney fees under [Code of Civil Procedure section 2033.420].” (Wagy v. Brown (1994) 24 Cal.App.4th 1, 6.) The few entries for trial state that Weddle’s counsel attended the trial with an expert witness; noted a “[s]ignificant absence of admissiable [sic] evidence in [Marquis’s] case in chief to support both a prima facie showing and or essential elements as to both counts”; and, when called as a witness by Marquis, provided “rebuttal testimony generally addressing absence of prima facie showing [and] absence of essential elements.” The expert witness who accompanied Weddle’s counsel to trial did not testify, however, and her itemization neither identified any evidence presented at trial that proved a specific matter Marquis refused to admit in discovery nor allocated attorney fees or other costs to that proof, as she was required to do to obtain an award of costs of proof. (Code Civ. Proc., § 2033.420, subd. (a); Grace, at p. 529.) Since Weddle had been given multiple opportunities to submit adequate documentation of the attorney fees and other costs she incurred in proving matters Marquis denied in discovery but failed to do so, the trial court did not act unreasonably or cause injustice, and therefore did not abuse its discretion, by denying her renewed motion for costs of proof. (Carlsen, supra, 227 Cal.App.4th at p. 904; Stull, supra, 92 Cal.App.4th at p. 864; Wimberly, at p. 637, fn. 10.)

DISPOSITION

The order denying the renewed motion for costs of proof is affirmed.

IRION, J.

WE CONCUR:

AARON, Acting P. J.

DATO, J.

[1] Code of Civil Procedure section 2033.420 states: “(a) If a party fails to admit the genuineness of any document or the truth of any matter when requested to do so under this chapter, 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’s fees.

“(b) The court shall make this order unless it finds any of the following:

“(1) An objection to the request was sustained or a response to it was waived under Section 2033.290.

“(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.

“(4) There was other good reason for the failure to admit.”

[2] A “notice of errata” that was filed after the hearing attached copies of the settlement offer Marquis rejected, a memorandum of costs, and a rejected filing notification that stated a page of the filing was blank and asked the filer to remove the blank page and resubmit the filing. In the notice, Weddle’s counsel stated the settlement offer was inadvertently omitted from prior filings because he “was distracted when drafting and filing” by a wife “severely sick in bed” and “erratic” behavior of a six-year-old son. Counsel also stated the declaration attaching the exhibit itemizing attorney fees was initially rejected because it included a blank page and was resubmitted shortly after the rejection, but the declaration remained in “submitted” and “under review” status and was not accepted for filing until after the trial court denied the renewed motion.

[3] By the time the motion for reconsideration was heard, a different judge (Hon. Lydia M. Villarreal) had taken over the case from the judge (Hon. Susan J. Matcham) who presided at trial and conducted the prior hearings on Weddle’s original and renewed motions for costs of proof. The new judge offered to transfer the matter to the prior judge for hearing, but Weddle’s counsel declined the offer and agreed to proceed before the new judge.

[4] The notice sets out general principles of law concerning nonsuit motions and goes on to describe testimony given by the two witnesses Marquis called at trial: (1) a Marquis partner, who claimed the negligent failure of Weddle’s husband to file a settlement agreement in the bankruptcy proceeding resulted in the loss of a property to foreclosure; (2) Weddle’s counsel, who testified that he assisted Weddle’s husband in the malpractice case, that Marquis admitted the value of the property lost to foreclosure was less than that alleged in the complaint, and that Weddle’s husband was “upset” by the treatment he received from the bankruptcy trustee and thought Marquis and its agents were “ ‘crooks.’ ” The notice also contains an unsigned, undated, and unfiled “order granting motion for judgment of nonsuit” on the ground the evidence was insufficient as a matter of law to sustain a verdict for Marquis.