4/1 DCA Decision, Although Unpublished, Suggests That Attorneys And Experts Should Correlate Their Time To Specific RFA Work So It Can Be Properly Allocated.
Orange County Water Dist. v. The Arnold Engineering Co., Case No. D070763 (4th Dist., Div. 1 Dec. 19, 2018) (unpublished) is an RFA costs-of-proof sanctions battle arising out of the North Basin Groundwater Protection Project contamination suit which has been brewing for a long time in Orange County Superior Court, Complex Division. After trial, defendant asked for costs-of-proof sanctions for certain District denials of RFAs to the tune of $2.5 million in fees and $400,000 in expert costs. After the lower court voiced some concerns, defendant lowered the request, respectively, to $650,000 and $300,000. Over District’s opposition, the lower court eventually awarded $313,000 in fees and $300,000 in expert costs for the RFA denials.
The 4/1 DCA reversed and remanded.
It initially rebuffed District’s advocacy of an elevated malicious prosecution standard in the CCP § 2033.420 area, reaffirming that abuse of discretion is the proper review standard. “The relevant question is whether the litigant had a reasonable, good faith belief he or she would prevail on the issue at trial. [Citation omitted.] Consideration of this question requires not only an assessment of the substantiality of the evidence for and against the issue known or available to the party, but also the credibility of that evidence, the likelihood that it would be admissible at trial and persuasive to the trier of fact, the relationship of the issue to other issues anticipated to be part of trial (including the issue's importance), the party's efforts to investigate the issue and obtain further evidence, and the overall state of discovery at the time of the denials and thereafter. 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.” (Slip Op., p. 29.)
However, it did find that discretion was abused on awarding costs-of-proof sanctions on certain District RFA denials because it had a reasonable basis to deny based on percipient witness testing, undisputed scientific evidence, and opinions from qualified expert witnesses. So, the matter was reversed and remanded.
Beyond that, the appellate court also reversed the $300,000 expert cost award, providing some instructive observations for attorneys and experts as far as the type of billing which should be employed to obtain costs-of-proof sanctions. Here, some of the work was allowable and some of it was not—meaning apportionment was necessary. It quoted from the Weil & Brown pre-trial practice treatise in recommending that attorneys and experts correlate their billing work to the RFA denial/proof which is at issue. The appellate court also found that the expert costs were incompetently introduced into evidence, because the attorney tried to authenticate the expert work. The attorney could testify that the invoices were paid, but could not attest to the work performed—evidentiary infirmities which were similar to those discussed in our posts on the Copenbarger decision [No. 9 of our 2018 Top Decisions] and on the Eith decision [see our December 19, 2018 post].
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