BACKGROUND
On July 27, 2015, appellant's vehicle was hit from behind by a potentially underinsured driver; the accident was part of a multi-vehicle collision. On September 10, 2015, appellant's vehicle was hit from behind again by a potentially underinsured driver. Appellant claimed he suffered a concussion, traumatic brain injury, and ulnar nerve injury to his wrist in the July accident
The parties agreed to combine the two sets of claims into a single arbitration.
Shortly before the arbitration began, State Farm agreed to pаy appellant's claims for the September accident. Thus, the arbitration involved only the claims for the July accident. The arbitration extended over three days. The arbitrator found there was no evidence appellant "was in any way responsible for the accident of July 27, 2015, and the issue of liability is decided in his favor." The arbitrator awarded appellant special damages for all of his medical bills and lost earnings for the period between the July and September accident, and also awarded general damages. The arbitrator noted some of appellant's treatment for injuries sustained in the July accident took place after the September accident, and those costs were included in the general damages due to the difficulty of accurately apportioning the medical bills.
Pursuant to section 2033.420, appellant moved for costs of proving the truth of the matters in the eight RFAs which State Farm hаd denied. At State Farm's urging, the arbitrator declined to consider appellant's motion, and the matter was decided by the trial court which confirmed the arbitration award. Nevertheless, the trial court denied appellant's motion for costs of proof. This appeal followed.
DISCUSSION
Section 2033.420 provides:
"(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 provеs 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
"Courts have uniformly reviewed orders granting or denying cost of proof awards for abuse of discretion. [Citations.]" ( Orange County Water Dist. v. The Arnold Engineering Co. (2018)
A. The Trial Court Did Not Abuse Its Discretion In Impliedly Finding Appellant Had Proven The Truth Of The Matters In His RFAs.
The trial court began its ruling by stating that the "primary issues to be decided ... is whether or not Respondent, as a party failing to make admissions when
1. There is substantial evidence appellant proved he was not negligent.
State Farm denied the following two RFAs: (1) "Admit that [appellant] was not negligent in connection with [the July incident]," and (2) "Admit that [appellant's] negligence was not a substantial factor in causing [the July incident]."
The arbitrator found: "There is no evidence to suggest that [appellant] was in any way responsible for the accident of July 27, 2015, and the issue of liability is decided in his favor." The arbitrator's finding is substantial evidence that appellant was not negligent in causing the July accident.
State Farm denied the following six RFAs concerning appellant's injuries:
(1) "Admit that [appellant] suffered a concussion as a result of [the July incident];"
(2) "Admit that [the July incident] was a substantial factor in causing [appellаnt's] concussion;"
(3) "Admit that [appellant] suffered a traumatic brain injury as a result of [the July incident];"
(4) "Admit that [the July incident] was a substantial factor in causing [appellant's] traumatic brain injury ;"
(5) "Admit that [appellant] suffered from an ulnar neuropraxis as a result of [the July incident]," and
(6) "Admit that [the July incident] was a substantial factor in causing [appellant's] ulnar neuropraxis."
The arbitrator did not expressly find appellant suffered a concussion, traumatic brain injury or ulnar neuropraxis as a result of thе July accident. Nevertheless, the arbitrator's statements and damages award taken as a whole demonstrate the arbitrator impliedly made such a finding.
As the arbitrator noted, appellant claimed that he suffered injuries to his left hand and arm and mild traumatic brain injury in the July accident, and his experts testified he needed surgery to correct an "ulnar" injury. The arbitrator then found appellant "was involved in a second accident on September 10, 2015, which exacerbated the injuries sustained in the earlier [July] accident and caused a lower-back injury." The arbitrator also found "some of [appellant's] treatment after the 9/10/15 accident was partially due to injuries sustained in the 7/27/15 accident." In addition, the arbitrator found appellant was involved in some accidents prior to the July accident but there was no evidence those accidents "contributed in any manner to his medical complaints" after the July incident. Taken together, these findings establish appellant suffered the injuries claimed from the July accident.
B. The Trial Court Erred In Placing The Burden Of Proof Or Persuasion On Appellant To Show The Non-existence Of Exceptions.
Although the trial court correctly found appellant had proven the truth of the matters asserted in its RFAs, and thus satisfied the requirements of section 2033.420, subdivision (а), the trial court imposed an additional burden on appellant to recover costs. The trial court stated: "Unfortunately, even though these are the key issues to be addressed, to wit, an evaluation of whether or not there was a 'reasonable ground' or 'other good cause' existing at the time, neither side has chosen to directly address them or to deal with the proper time frame." The court then explained its "view" that appellant "had the 'burden of proof' or, perhaps more accurately, of 'persuasion' in connection with this motion, but even if he did not, given that [appellant] has failed to properly address the only salient issues."
The two issues described by the court are taken from section 2033.420, subdivision (b) ; the plain language of the section as a whole shows that the circumstances listed in subdivision (b) are exceptions to the rule of subdivision (a). The last sentence of subdivision (a) states the party requesting the admissiоn may move the court for an order awarding cost of proof. Subdivision (b) states "The court shall make this order [awarding costs] unless it finds any of the following" specified circumstances exist. Thus the circumstances listed in subdivision (b) are exceptions to the rule that a moving party is entitled to costs of proof, and the trial court erred in placing the burden of proof or persuasion on appellant to show that such exceptions did not apply.
It is well established in Califоrnia that "the party seeking to benefit from an exception to a general statute bears the burden to establish the exception." ( Simpson Strong-Tie Co., Inc. v. Gore (2010)
In addition, a well-respected and widely used practice guide advises that the party seeking to avoid paying costs under section 2033.420 has the burden of proving the exceptions listed in subdivision (b). (Edmon & Karnow, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2019) ¶ 8:1408.) While this guide is not binding authority on any court, it can be a persuasive and helpful source in the absence of case law on a topic. (See California Rules of Court, rule 3.1113(b).) Certainly, as a practical mattеr, the denying party is in the best position to explain the reasons for its denial.
Respondent's reliance on appeal on Smith v. Circle P Ranch Co. (1978)
Former section 2034, subdivision (c) was substantially altered by the California Civil Discovery Act of 1986. Section 2034, subdivision (b), was replaced by former section 2033, subdivision (o), which provided "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
C. The Trial Court Did Not Abuse Its Discretion In Finding Respondent Failed To Show The Existence Of Any Exception Under Section 2033.420, Subdivision (b).
Although the trial court erred in denying appellant's motion on the ground appellant failed to prove the non-existence of an exсeption under section 2033.420, subdivision (b), the court also stated its expectation that State Farm would offer proof on this topic. The court found that "Respondent should have been filing opposition papers along the same lines [as appellant] showing what facts it did or did not have when it filed its responses and what 'reasonable grounds' it had for its failures to admit, accompanied by its arguments as to whether the court should alternatively find that there is 'other good reason for the failure to admit.' " The court found that State Farm did not do so. There is substantial evidence to support this finding.
1. There is substantial evidence State Farm failed to prove it had reasonable grounds to deny appellant's request to admit he was not negligent.
State Farm contends it proved it had reasonable grounds to deny the RFAs related to the issue of comparative negligence. State Farm points to undisputed evidence that it paid appellаnt for damage to the front of his car after the July accident. State Farm contends appellant failed to admit that he rear-ended the car in front of him before he was himself rear-ended and pushed into that car, a situation which could show he was negligent. State Farm also contends the driver of the car in front of appellant, Ms. Jensen, made a statement which suggested that appellant hit her twice, reinforcing State
"[RFAs] ... are primarily aimed at setting at rest a triable issue so that it will not have to be tried. Thus, such requests, in a most definite manner, are aimed at expediting the trial." ( Cembrook v. Superior Court (1961)
Respondent has also failed to show that its reliance on Jensen's recorded statement was reasonable. When a party denies an RFA, "[t]he question is not whether a reasonable litigant would have denied the RFAs. Nor is the question simply whether the litigant had some minimum quantum of evidence to support its denial (i.e., 'probable cause'). The "relevant question is whether the litigant had a reasonable, good faith belief he or she would prevail on the issue at trial. [Citations.]"
On appeal, State Farm contends it had reasonable grounds to deny the RFAs relating to appellant's claimed brain injury based on the expert opinions of Dr. Carpenter, Dr. Woo, and Dr. Regev. State Farm also contends it had reasonable grounds to deny the RFAs relating to the ulnar injury based on the expert opinions of Dr. Gupta, Dr. Woo, and Dr. Regev.
In the trial court, State Farm argued that it was reasonable to deny the injuries based only on looking at the damage to appellant's vehicle (as interpreted by its accident reconstruction expert Singh). State Farm also stated generally that it hired three of their own experts to establish that appellant did not suffer the claimed injuries. As the trial court pointed out, State Farm did not show whether it relied on those expert opinions when it denied the RFAs relating to the injuries, or whether it had received copies of appellant's expert opinion repоrts. This omission alone is sufficient to support the trial court's finding that State Farm did not show "what facts it did or did not have when it filed its responses and what 'reasonable grounds' it had for its failure to admit."
We note that the arbitrator found State Farm's medical experts not credible because they claimed that appellant's "two injuries came about at the same time as the accident but were related to sleep apnea and repetitive use of the wrist" and this was "toо much in the realm of coincidence, especially when [appellant] never complained of sleep apnea [or] pain in the wrist due to repetitive usage." Thus, even if State Farm did have its experts' opinions when it denied the RFAs, a question would remain concerning whether reliance on those opinions was reasonable.
D. This Matter Must Be Remanded For A Determination Of Costs.
State Farm contends we should uphold the trial court's denial of costs under the doctrine of implied findings by holding that the record supports a
The trial court made clear the basis for its ruling, and there is no reason to believe it also denied the motion оn the additional unmentioned ground of problems with cost itemization, particularly since State Farm did not raise this argument in the trial court. There, State Farm argued only that appellant's requested hourly rates were unreasonable. Even on appeal, State Farm makes only a cursory factual argument to support its claim, citing only a "few" examples to justify denial of appellant's entire motion. That is not sufficient.
As we explain in this opinion, appellant proved that he was entitled to costs under section 2033.420, subdivision (a). State Farm failed to prove that any of the exceptions to a cost award applied to it. Accordingly, the matter must be remanded to the trial court to determine appellant's "reasonable expenses incurred in" proving the matters asserted in his RFAs. ( § 2033.420, subd. (a).)
DISPOSITION
The trial court's judgment is reversed, and this matter is remanded for a determination of appellant's reasonable expenses incurred in рroving the matters in the RFAs denied by respondent. Appellant to recover costs on appeal.
We concur:
BIGELOW, P. J.
GRIMES, J.
Notes
Further undesignated statutory references are to the Code of Civil Procedure.
Respondent did not cite to or rely on Smith in its opposition in the trial court.
Added by Statutes. 1986, chapter 1334, section 2, operative July 1, 1987; Repealed by Statutes 2004, chapter 182, section 22, operative July 1, 2005
State Farm also argues it chose "not to argue some negligence should be placed on the 'unknown driver who merged into traffic several cars ahead of [Samsky].' " State Farm did not make this argument in the trial court, and it is not clear how such a merger would lay blame for the accident on appellant. Appellant's RFAs concerned appellant's own negligence, and not that of any other specified driver.
State Farm complains the arbitrator did not refer to the testimony of two of its experts, Dr. Carpenter (an "accident reconstructionist and biomechanical expert") and Mr. Singh in the Award. It contends the testimony of these two experts provided sufficient grounds for State Farm to believe appellant did not suffer a concussion. As was the case with the medical experts, State Farm did not offer facts showing when it learned of these experts' conclusions in relation to its denial of the RFAs. Further, there could be many reasons for the arbitrator's silence on these experts, including a conclusion the testimony was not relevant, useful or credible. This summarized testimony without more is not sufficient to show reasonable grounds for State Farm's denials of the RFAs.