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Michelle Mulhern v. Robyn Marie Dungan et al

September 17, 2012


(Super. Ct. No. 09CVPM0165593)

The opinion of the court was delivered by: Mauro , J.

Mulhern v. Dungan CA3


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In two requests for admission, plaintiff Michelle Mulhern asked defendant Robyn Marie Dungan to admit that Dungan's negligence caused a motor vehicle collision. Dungan denied the requests for admission. Mulhern ultimately prevailed in a jury trial and then made a motion to recover her attorney's fees from Dungan pursuant to Code of Civil Procedure section 2033.420,*fn1 which provides cost-of-proof sanctions against a party who unreasonably denies a request to admit a matter of substantial importance that is subsequently proven true. The trial court denied Mulhern's motion for attorney's fees.

Mulhern contends the trial court applied the wrong legal standard and abused its discretion in denying her motion for attorney's fees. Mulhern argues the trial court improperly placed the burden on her to prove there was "no good reason" for Dungan to deny the requests for admission, and that the trial court incorrectly injected a subjective, bad faith standard into the analysis.

We conclude the trial court did not apply the wrong legal standard and did not abuse its discretion. Although the jury determined that the accident was caused by Dungan's negligence, there is evidence in the record to support the trial court's conclusion that Dungan had a reasonable ground to believe she would prevail on the matter when she denied Mulhern's requests for admission.

We will affirm the trial court order.


Dungan was driving her minivan on March 7, 2007, and rear-ended Mulhern's car (the March accident). Mulhern and Dungan were injured and their vehicles were damaged. After Mulhern sued Dungan, Dungan claimed she was not negligent because she had a seizure while driving. The dispute in this appeal is based on the fact that Dungan did not mention that she had a seizure at the time of the March accident until after Mulhern filed her lawsuit.

Dungan saw her physician, Dr. James Mu, hours after the March accident. According to Dr. Mu, Dungan was able to communicate with him during that visit. Dungan told Dr. Mu she did not remember what happened but she may have hit her head, face and chest on the side door or window of her vehicle during the collision. Dungan denied losing consciousness during the accident.

Dr. Mu conducted a neurological examination and concluded that, aside from neck pain, Dungan was "normal." Dr. Mu's records showed that Dungan had general mild drowsiness on the day of the March accident -- he testified that her prescription medications potentially caused drowsiness -- but Dungan, a registered nurse, did not report that she had blacked out, a circumstance that Dr. Mu would have noted in his records. Dungan did not report any seizure symptoms to Dr. Mu. Dr. Mu saw Dungan again in March, four times in April, and twice in May. At trial, Dr. Mu did not recall that Dungan ever reported to him that she believed she had a seizure or blackout at the time of the March accident.

About two months before the March accident, Dungan had complained to Dr. Mu about depression, difficulty focusing and drowsiness, which were side effects from her medication, and Dr. Mu adjusted Dungan's medications. Dr. Mu treated Dungan for back pain and other issues, but his records did not show any complaint concerning seizure-type symptoms prior to the March accident. Dungan testified she never had a seizure before the March accident and no one ever warned her that she was at risk for seizures.

Almost three months after the March accident, Dungan rear-ended another car on June 1, 2007 (the June accident). On that occasion, Dungan's aunt Patty Norton was with Dungan when the collision occurred. Dungan remembered preparing to stop for a red traffic light, but the next thing she remembered was opening her eyes and seeing paramedics around her. According to Norton, when Dungan was almost at a complete stop, Dungan's foot stepped on the gas, Dungan convulsed, turned blue and purple and foamed at the mouth, and her van struck the car in front of her.

Dungan consulted with neurologist Dr. Harvinder Birk five days after the June accident. Dr. Birk diagnosed Dungan with complex partial seizure syndrome or epilepsy. In a letter dated June 6, 2007, Dr. Birk reported to Dr. Mu that Dungan's aunt witnessed Dungan having tonic-clonic jerks; that Dungan had no previous history of seizures but her brother had seizures and was treating with Dr. Birk; and that Dungan had ringing in the ears, trouble swallowing, balance and memory problems, fatigue, and numbness in the left half of her body for which she had been evaluated in 2006 by another neurologist.

Dungan did not tell Dr. Birk or Dr. Mu that, on the day of the March accident, she had a blackout or seizure. Dungan told Dr. Birk that the day of the June accident was the first time she had a ...

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