Metropolitan News-Enterprise


Wednesday, August 11, 2010


Page 3


Court of Appeal: Costs-of-Proof Statute Does Not Apply to Counsel


By STEVEN M. ELLIS, Staff Writer


Litigants can collect reasonable expenses, including attorney fees, for proving a matter at trial after a party unreasonably denies a request for admission, but only from the denying party, not counsel, this district’s Court of Appeal ruled yesterday.

Reasoning that Code of Civil Procedure Sec. 2033.420 applies only to a “party,” and that California law has a separate provision allowing for discovery sanctions against counsel, Div. Three reversed a costs of proof order against two Los Angeles attorneys in a will contest.

Los Angeles Superior Court Commissioner Reva Goetz granted executor Terri Wilson’s request for an order requiring attorneys Larry Lewellyn and Dawn Clark-Johnson, and their client, Nancy Brown, to pay Wilson the full amount of her legal fees after Brown denied requests for admission which, if admitted, would have resolved the will contest in Wilson’s favor.

Writing for the Court of Appeal, however, Justice Walter Croskey said that costs of proof could be imposed only against Brown. He also concluded, in an unpublished portion of the opinion, that Goetz erred in awarding costs for every theory on which Brown challenged the will of Dorothy Manuel, and remanded for recalculation of costs pertaining only to requests for admission for which Brown lacked reasonable grounds to believe she could deny.

Challenge to Will

Brown, Manuel’s second cousin, challenged Manuel’s 2003 will leaving all of her property, including a home on real property that also contained two rental units, to Wilson, the widow of Manuel’s son. Manuel died at the age of 99 in 2005, survived by no children, grandchildren or siblings.

Brown lived with Manuel briefly after she suffered a stroke in 1999, but moved out when other family members took over responsibility for Manuel’s care. Manuel later confided in Wilson, who had begun visiting her regularly, that the other family members were stealing from her, so Wilson took Manuel to an attorney, Julius Wulfsohn, since deceased, who filed suit to help Manuel regain her property.

Wulfsohn, meeting privately with Manuel, also helped her draft a will in July 2003 to replace one that left her property to the family members she accused of theft. The attorney later said he believed Manuel was mentally competent and not being unduly influenced, and the new will left all of Manuel’s property to Wilson.

The family members Manuel accused returned the disputed property, and Probate Volunteer Panel attorney Marc Sallus was appointed to act on Manuel’s behalf as a conservator. Manuel at one point indicated to Sallus that she wanted her property to go to her closest living relative, but her mental condition deteriorated and she died before giving Sallus firm instructions.

Document Contested

Wilson submitted the 2003 will to probate, but Brown contested it, pointing to Manuel’s mental capacity and the “unnatural distribution” to someone to whom Manuel was related only by marriage, among other grounds, including undue influence. Wilson sent Brown requests to admit that the will was not invalid on the grounds raised, but Brown denied the requests.

Goetz later ruled in Wilson’s favor at trial.

Wilson then sought as costs of proof her entire attorney feel bill from the date of Brown’s responses to the first set of requests for admission, totaling almost $53,000. Despite Sec. 2033.420’s express provision for costs against “the party” who denied the requests, she argued that Clark-Johnson and Lewellyn—who replaced Clark-Johnson when she substituted out of the case—should also be liable because “any reasonable attorney” would have known that Brown’s evidence was insufficient.

Goetz granted the request, but Croskey said the statute’s legislative history and interpretations by federal courts demonstrated that it applied only to parties, not counsel. He also rejected Wilson’s argument that the award against Clark-Johnson should be upheld as a sanction for misuse of the discovery process, noting that Wilson never identified any specific conduct as misuse of discovery, and that the trial court never made a finding that they had done so.

Justices Patti S. Kitching and Richard D. Aldrich joined Croskey in his opinion.

Llewellen represented himself on appeal, and was also represented by Janice R. Mazur and William E. Mazur Jr. of Mazur & Mazur. Efrem A. Clark represented Clark-Johnson, while Joseph A. Lumsdaine and Min N. Thai represented Wilson.

The case is Estate of Manuel, B210701.


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