The Cost of Changing Discovery Responses Can Be High

Rhule v. WaveFront Technology, Inc., 2/23/17, 2DCA/5

In response to Requests for Admission, Plaintiffs mistakenly admitted that Defendant had not violated certain Labor Code sections, violations that had been alleged in the complaint and, presumably, were critical to Plaintiffs’ case.  Plaintiffs realized their mistake and, after Defendant had already taken Plaintiffs’ depositions, asked the trial court to grant leave to amend the mistaken admissions.  The trial court granted Plaintiffs’ motion subject to conditions, and subsequently granted Defendant’s motion for over $8,000 in attorney’s fees pursuant to Code of Civ. Proc 2030.300(c).  Held: Affirmed.

First, on the legal question posed by the appeal, section 2033.300(c) provides that “The court may impose conditions on the granting of the motion that are just, including, but not limited to, the following: [¶] (1) An order that the party who obtained the admission be permitted to pursue additional discovery related to the matter involved in the withdrawn or amended admission. [¶] (2) An order that the costs of any additional discovery be borne in whole or in part by the party withdrawing or amending the admission.” Given that section 2033.300(c) mentions costs but not attorney’s fees, can the trial court award fees?  Yes — Code of Civ. Proc. section 1033.5 treats attorney’s fees as a subset of costs.  Moreover, section 2033.300(c) allows the court do what it deems “just,” which suggests that the trial court has wide discretion in this area.

Concerning Plaintiffs’ argument that the trial court abused its discretion in awarding these fees, the party challenging an award of attorney fees bears the burden of providing an adequate record to demonstrate error.  Plaintiffs did not provide a reporter’s transcript or an agreed or settled statement, so it couldn’t meet that burden. The lesson: Hire a court reporter for important hearings.

Finally, the costs that trial court awarded were for opposing the motion to amend the admissions, and the anticipated costs (and fees?) related to retaking Plaintiffs’ depositions.  $8000 seems steep, but that goes back to Plaintiffs’ failure to provide an adequate record for review.