Gamo vs. J Star Auto Group, Inc.

06CC11271 9. Gamo vs. J Star Auto Group, Inc. 2017-00942930 Please see notice above regarding oral argument on this motion/petition Before the court is the motion by defendants J Star Auto Group, Inc. (JStar) and Jared Merrell (collectively, Defendants) for an award of attorney fees following the remittitur issued by the Court of Appeal on October 17, 2025. For the reasons set forth herein, the motion is DENIED.

On December 15, 2022, the court entered judgment in favor of Defendants and against plaintiff Tirso Gamo (Plaintiff) on all causes of action. During this litigation, Defendants were jointly represented by Vivoli Saccuzzo, LLP. Plaintiff filed the case on September 11, 2017. On July 20, 2018, JStar served requests for admissions, set one, on Plaintiff, which included request nos. 1-54. Plaintiff served responses on August 27, 2018. On January 18, 2019, JStar served requests for admissions, set two, on Plaintiff, which included request nos. 55-71. Plaintiff served responses on to those requests on October 10, 2019. Plaintiff denied some of these various requests for admissions (and also withdrew some admissions that were initially made).

Following trial, Defendants filed this motion seeking to recover cost of proof fees and expenses under Code of Civil Procedure section 2033.420, and also prevailing defendant attorney fees and costs under the Consumer Legal Remedies Act (CLRA). Defendants argued Plaintiff’s CLRA claim were inextricably intertwined with his other claims such that there was no need to allocate Defendants’ fees and expenses as between Plaintiff’s CLRA claims and his other claim, or between fees recoverable for cost of proof and fees recoverable under the CLRA. As originally filed, Defendants sought $321,728 in fees plus a multiplier of 1.5 for a total fee award of $482,592. The trial court denied the motion in its entirety, finding the unilateral fee provision appliable to Plaintiff’s financial elder abuse claim barred Defendants from recovering their fees under any other statutory provision.

Defendants appealed. The Court of Appeal reversed in part and affirmed in part, finding the unilateral fee provision applicable to Plaintiff’s financial elder abuse claim barred Defendants’ attorney fees request under the CLRA, but that unilateral provision did not bar Defendants from recovering cost of proof expenses and fees if they made all necessary showings. Because the trial court did not otherwise address the merits of Defendants’ cost of proof fees request, the Court of Appeal remanded the matter for the court to consider that request on the merits.

Following remand, and recognizing Code of Civil Procedure section 2033.420 is the only basis for the expenses and fee request, Defendants dropped their request for a multiplier and reduced the fees they seek from $321,728 to $314,203. Defendants explain they are seeking all attorney fees incurred from the date JStar served its first set of requests for admissions.

Section 2033.420 states as follows: “(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 proves 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 under Section 2033.290. “(2) The admission sought was of no substantial importance. “(3) The party failing to make the admission had reasonable ground to believe that that party would prevail on the matter. “(4) There was other good reason for the failure to admit.”

The party seeking cost of proof fees “must show they spent the amounts claimed to prove the issues [their opponent] should have admitted. [Citations.] The requested amounts must be segregated from costs and fees expended to prove other issues. [Citations.] [¶] Costs of proof are recoverable only where the moving party actually proves the matters that are the subject of the requests. [Citation.] This means evidence must be introduced. [Citation.]” (Grace v. Mansourian (2015) 240 Cal.App.4th 523, 529– 30.) Only expenses resulting from the responding party’s failure to admit the requests for admissions are awardable. Therefore, expenses and fees incurred before the requests were denied are not awardable under Code of Civil Procedure section 2033.420. (Garcia v. Hyster Co. (1994) 28 Cal.App.4th 724, 736; Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618, 638.)

As advised by Weil & Brown, California Practice Guide: Civil Procedure Before Trail (The Rutter Group 2025) at paragraphs 8:1413.1a and 8:1413.1b, “An accounting is required (e.g., by declarations from moving party’s counsel) setting forth the hourly fees and time spent to ‘prove’ the specific matters denied, as opposed to time spent in preparation for trial generally or in proving other matters at trial of the case. [Garcia v. Hyster Co. (1994) 28 CA4th 724, 737, 34 CR2d 283, 290—conclusionary statements by counsel not sufficient] [¶] . . .

Carefully track your time and costs associated with proving matters on an issue-by-issue (RFA-by-RFA) basis to facilitate granting of your motion for compensation. But the ‘statute does not require that fees and costs must be separately allocated to each specific request for admission, particularly not where, as here, virtually all the requests relate to a single issue.’ [Association for Los Angeles Deputy Sheriffs v. Macias (2021) 63 CA5th 1007, 1030-1031, 278 CR3d 487, 507-508 (also noting that counsel’s declaration re fees compiled under his direction was not inadmissible hearsay).]”

Here, Defendants have made no effort to segregate the fees expended to allegedly prove the specific matters identified in the requests for admissions Plaintiff denied and other matters and other work performed. Indeed, Defendants seek attorney fees for all work performed from the date JStar propounded its first set for admissions. For example, Defendants seek attorney fees for their unsuccessful summary judgment motion and in opposing Plaintiff’s summary judgment. Section 2033.420 authorizes the recovery of attorney fees and expenses incurred to prove the matter that was denied in the requests for admissions. Nothing in either summary judgment motion proved any matter that was denied in the requests for admissions.

Defendants apparently contend if Plaintiff had admitted the requests for admissions, Defendants would have prevailed on their summary judgment motion and there would have been no need for a trial. So, not only are Defendants entitled to all their attorney fees incurred at trial, they are entitled to all attorney fees they incurred from the date JStar propounded its first set of requests for admission—i.e., all but $7,525 ($321,728 minus $314,203) of the attorney fees Defendants incurred. Defendants cite no authority to support this incredibly broad interpretation of section 2033.420, and the statutory language does not support it.

Similarly, Defendants make no attempt to segregate the fees incurred in defending JStar and the fees incurred in defending Merrell. None of the fees billed defending Merrell can be the basis for a cost of proof sanction. The requests for admissions were served by JStar only, and therefore cost of proof sanctions can be recovered only for time spent defending JStar. The statute does not authorize another person to obtain cost of proof sanctions. (Code Civ. Proc., § 2033.420; Design Built Sys. v. Sorokine (2019) 32 Cal.App.5th 676, 694–95.) Certainly, there was overlap, and likely significant overlap, in the fees incurred in defending JStar and Merrell, but there is no showing they were identical and the burden on this motion is on Defendants.

Further, there has been an insufficient showing the content of any particular request for admission denial was subsequently proven at trial. For example, request for admission no. 5 asked Plaintiff to “Admit YOU initialed each page of the CONTRACT on September 11, 2016.” Although Defendants cite to deposition testimony where Plaintiff was asked if he signed the contract, there is no citation to evidence showing he ever stated he initialed the contract. Moreover, although counsel states the “testimony was ultimately read into evidence” (Saccuzzo Supp. Decl. ¶29), the trial transcript is not attached and there is no explanation as to what the context was in which it was read into evidence. For example, JStar failed to show where it was required to expend time at trial or otherwise proving Plaintiff initialed the contract.

Additionally, several of the requests for admissions ask for admissions as to Plaintiff’s mental capacity to understand the contract he was signing. Defendants argue this resulted “in considerable litigation” but there is no explanation as to which time entries reflect work proving facts which were denied. Although Defendants cite to the deposition of Dr. Trader as evidence contradicting the denials, all that Dr. Trader said was that he did not know “Mr. Gamo’s level of cognitive impairment” on the date he signed the contract. In opposition, Plaintiff points to a tentative ruling of the court on Plaintiff’s request for admissions motion which discusses evidence supporting denial of the requests for admissions and that Plaintiff had a reasonable belief he would prevail on the issue.

Again, Defendants argue that if the requests for admissions had been admitted, they would have prevailed on their summary judgment motion. (Motion at 12:12-15.) Defendants, however, fail to prove that is the case. It would be error for the court to rely on “a conclusionary statement of counsel.” (Garcia v. Hyster Co. (1994) 28 Cal.App.4th 724, 737.) In addition to the foregoing, the Defendants have failed to segregate which time was spent proving the facts relating to the requests for admissions in set one as opposed in set two. Also, only fees incurred after the denial are recoverable and therefore the Defendants’ request for fees starting on the date the first set of requests for admissions was served is improper. (Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618, 638.)

In short, Defendants have numerous fatal failures in their showing to support this motion. They fail to show precisely what facts Plaintiff denied they were forced to truly prove at trial. They appear to assume that because they prevailed at trial they necessarily proved every fact Plaintiff denied in the cited requests for admissions. Indeed, nothing is presented to show what Defendants proved at trial. Moreover, there is no attempt to differentiate between the fees that were incurred to prove the matters Plaintiff denied and the fees that were incurred on all other issues and proceedings in the case. Contrary to Defendants’ contention, there is no authority for them to recover all their fees because they believe they would have prevailed on summary judgment. Based on the foregoing, the motion is DENIED. Plaintiff’s counsel is ordered to give notice of this ruling.

10. Lopez vs. Nissan North America, Inc. 2024-01388370 Please see notice above regarding oral argument on this motion/petition Before the court is the motion for attorney fees, costs, and expenses filed by plaintiff Karina E. Lopez (Plaintiff) against defendant Nissan North America, Inc. (Defendant). As more fully set forth below, the motion is GRANTED in the reduced amount of $21,789.22. The parties settled this Song-Beverly case before trial with Defendant agreeing to pay reasonable attorney fees, costs, and expenses to Plaintiff as the prevailing party. As such, there is no dispute among the parties as to Plaintiff’s right to recover her attorney fees, costs, and expenses. Rather,