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Court of Appeal:
Fee Award Can Be Imposed on Defeated Elder-Abuse Plaintiff
Statute Limiting Such Orders to Where Defendants Are Losing Parties Doesn’t Bar Granting Recompense to Lawyers for Those Unsuccessfully Sued if Their Requests for Admissions Were, Wrongly, Not Answered in Affirmative—Opinion
By a MetNews Staff Writer
Div. Three of the Fourth District Court of Appeal has held that although a statute authorizes an award of attorney fees to a successful plaintiff in a financial elder-abuse case but not to a prevailing defendant, “cost-of-proof damages” may nonetheless be imposed on the party who brought the failed litigation where the truth of matters that were proven at trial was not acknowledged by that person in responses to requests for admissions.
The unilateral fee provision in Welfare & Institutions Code §15657.5(a)—which says that where the plaintiff establishes elder abuse, “[t]he court shall award to the plaintiff reasonable attorneys fees and costs—“can be harmonized” with the fee-shifting component of Code of Civil Procedure §2033.420(a), Acting Presiding Justice Eileen C. Moore said in an opinion filed Thursday.
Sec. 2033.420(a) provides:
“If a party fails to admit the genuineness of any document or the truth of any matter when requested to do so... , 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.”
Moore’s opinion reverses, in part, an order by Orange Superior Court Judge John C. Gastelum. The judge found that defendants J Star Auto Group, Inc., a car-dealership, and Jared Merrell, its owner/CEO, are barred by §15657.5(a) from recovering attorney fees to which they would otherwise have been entitled.
2007 Decision
Gastelum cited Wood v. Santa Monica Escrow Co., decided in 2007 by Div. Six of this district’s Court of Appeal. There, Presiding Justice Arthur Gilbert said:
“Because, as Santa Monica concedes, all the causes of action alleged here arose from a single transaction, all causes of action overlap the elder abuse cause of action. Santa Monica is not entitled to an award of fees.”
The Orange County judge declared:
“All of the claims against Defendants in this case, including the elder abuse claim, were based on the same transaction and were inextricably intertwined. Defendants are not entitled to attorney fees on claims that overlap with the elder abuse claim.”
He noted that the defendants deny that there is such an overlap, but pointed out that the claims that are pled “clearly arise out of the same transaction—the purchase of the Maserati and trade-in of the Mercedes.”
Gastelum found no merit in the contention that an award of fees pursuant to §2033.420 should be considered to be a separate matter, reasoning that allowing fees under that section “for claims that overlap the elder abuse claims would create a judicially imposed reciprocity” of fee-shifting obligations “in violation of the legislative intent of Welfare and Institutions Code section 15657.5, just as that rejected in Wood.”
Moore’s Opinion
Disagreeing, Moore wrote that “[c]ost-of-proof fees and the unilateral fee provision in section 15657.5, subdivision (a) each serve different purposes.”
She explained:
“Unilateral fee provisions are designed to encourage enforcement of an important public policy. Here, the unilateral fee provision in section 15657.5, subdivision (a) encourages plaintiffs to pursue financial elder abuse claims….Unilateral fee provisions achieve this goal by ensuring a plaintiff is protected from having to pay a prevailing defendant’s attorney fees if the plaintiff loses on his or her claims.”
Cost-of-proof fees, she said, have a discrete objective: “to encourage efficient trials.” The prospect of an award of such fees, Moore wrote, prompt “both parties to narrow the issues for trial to avoid wasting the time and resources of the court and the parties.”
The jurist declared:
“Because cost-of-proof fees neither reward the prevailing party nor punish a losing party in a lawsuit, they do not interfere with unilateral fee provisions.”
Differentiating Wood, she pointed out that it did not deal with §2033.420(a). Rather, she recited, after an elder-abuse lawsuit had been voluntarily dismissed by the plaintiff, the defendants sought contractual attorney fees, which Gilbert said was barred.
Moore’s opinion requires the Orange Superior Court “on remand to address any remaining arguments concerning the sellers’ request for cost-of-proof fees.”
Fees Under CLRA
J Star and Merrell also sought an award of attorney fees as successful defendants in a cause of action under the California Legal Remedies Act (“CLRA”) brought by Tirso Gamo and maintained, after his death, by his widow, Ludivine M. Gamo, as executor of the estate.
Civil Code §1780(e), a part of that act, provides, in part:
“Reasonable attorney’s fees may be awarded to a prevailing defendant upon a finding by the court that the plaintiff’s prosecution of the action was not in good faith.”
Moore wrote that because the defendants “have failed to adequately explain why CLRA fees are not barred by section 15657.5, subdivision (a), we find this argument has been waived.”
The case is Gamo v. Merrell, 2025 S.O.S. 2328.
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