Plaintiff’s Failure To Provide Accounting Precluded Costs Of Proof Sanctions.
Marie Jansen smoking and holding umbrella in beach scene. c1893. Library of Congress.
In re Tobacco Cases II, Case No. D065165 (4th Dist., Div. 1 Sept. 28, 2015) (published) is the likely denouement to a false advertising case against a large tobacco manufacturer involving Marlboro Lights. In the end, the trial court found plaintiffs had no competent evidence of loss, although proving liability, because most smokers said they got reasonable value for their smokes.
The trial judge awarded defendant $764,552.73 in routine costs, but denied CCP § 2033.420 costs-of-proof sanctions to plaintiff. Both determinations were affirmed on appeal. Defendant fell within 2 of the 4 prevailing party constructs of CCP § 1032, so that sufficed. With respect to denial of costs-of-proof sanctions, plaintiffs failed to provide an accounting, showing what fees/costs related to the denied RFAs—fatal at both the trial and appellate levels.
Comments