RFA Withdrawal Can Cost You Fees

Rhule v. Wavefront Technology Inc., No. B267359 (D2d5 Feb. 23, 2017)

The trial court let Plaintiff withdraw two admissions tendered in response to requests for admission, conditioned on an award of fees based on reliance on those admissions. Plaintiff appeals. 

But there isn’t a reporter’s transcript. The trial court’s minute ordered noted that the motion had been granted. A subsequent entry set a date for a fee motion. And then the trial court heard the fee motion, which also wasn’t transcribed. The court’s minute order, citing Code of Civil Procedure § 2033.300(c), awarded $8,125 in fees out of the $10,000 sought by Defendant.

Because of the lack of a record, the Court of Appeal finds it can’t entertain the challenge to the amount of the fee award, which was not facially beyond the pale. That’s a discretionary call where the trial court can act as a factfinder. So in the absence of a record, an abuse of discretion can’t be found.

Which still leaves Plaintiff’s purely legal challenge that § 2033.300 doesn’t permit the court to assess fees as a condition of letting a party out of an admitted RFA. Section 2033.300(c) specifically permits the court to shift the “costs of any additional discovery.” As used there “costs” isn’t limited to recoverable costs under § 1033.5, but pragmatically the marginal costs caused by permitting the withdrawal of the admission, including attorneys’ fees. Moreover, “costs” can include fees when shift-able by statute, and the RFA statutes permit an award of fees as a consequence for an unsubstantiated denial, which suggests, albeit obliquely, that “costs” in § 2033.300 should include attorneys’ fees. 

Affirmed.