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Rhule v. Wavefront Technology, Inc.

California Court of Appeals, Second District, Fifth Division

February 23, 2017

CARLTON RHULE, Plaintiff and Appellant,
v.
WAVEFRONT TECHNOLOGY, INC., Defendant and Respondent.

         APPEAL from an order of the Superior Court of Los Angeles County No. BC540719, Terry A. Green, Judge. Affirmed.

          Mark Weidmann for Plaintiff and Appellant.

          Johnson & Associates and William D. Johnson for Defendant and Appellant.

          BAKER, J.

         Plaintiff and appellant Carlton Rhule (plaintiff) appeals the trial court's award of $8, 125.00 in attorney fees to defendant and respondent WaveFront Technology, Inc. (defendant). The trial court authorized defendant to seek an award of attorney fees as a condition of permitting plaintiff to withdraw admissions he mistakenly made in response to two requests for admission served by defendant. Our record on appeal includes no reporter's transcript (or a suitable substitute therefor) of either the hearing on plaintiff's motion to withdraw his mistaken admissions or the subsequent hearing at which the trial court ruled on defendant's motion for attorney fees. Plaintiff nevertheless urges us to conclude the trial court's attorney fees award was made without statutory authority and was an abuse of the trial court's discretion. We reject both contentions.

         I. BACKGROUND

         Plaintiff sued defendant, his former employer, for wrongful termination. The details of the lawsuit are not important to the issues we decide in this appeal.

         On November 26, 2014, Defendant served a first set of requests for admission (RFAs) on plaintiff. Among the various requests were RFAs numbered 28 and 29, which asked plaintiff to admit defendant had not violated certain provisions of the Labor Code. In his responses to the RFAs, served on December 30, 2014, plaintiff admitted RFAs 28 and 29.

         Plaintiff later realized he had admitted RFAs 28 and 29 by mistake. After unsuccessfully urging defendant to stipulate to allow him to withdraw his admissions and file amended responses, plaintiff filed a noticed motion under Code of Civil Procedure section 2033.300[1] requesting leave of court to do so (the RFA Relief Motion). He filed the motion on April 6, 2015, and by that time, defendant had already taken plaintiff's deposition. Defendant opposed the motion.

         The trial court held a hearing on the RFA Relief Motion. The record on appeal contains no reporter's transcript (or an agreed or settled statement) to memorialize what transpired during the hearing. A minute order issued by the trial court in connection with the hearing states no court reporter was present. As to the substance of the court's ruling, the minute order states that “[t]he Court, having read and considered the documents filed and all oral argument, grants the Motion of Plaintiff... to Request Leave to Amend Plaintiff's Response to Defendant's Request for Admission No. 28 and No. 29.” Providing just a clue as to what transpired at the hearing, the minute order also set a future hearing date for a motion for attorney fees.[2]

         Defendant subsequently filed a motion seeking an award of $10, 000 in attorney fees (the Fees Motion). According to the Fees Motion, the trial court conditioned its decision to grant the RFA Relief Motion “on several things, including allowing defendant to retake plaintiff's deposition in relation to the changed answers to Requests for Admission numbers 28 and 29, and [a]warding defendant its attorney fees in connection with the Motion but requiring defendant to file a noticed motion for its fees.” Plaintiff filed an opposition to the Fees Motion. Plaintiff argued the trial court had only authorized defendant to seek a “nominal” amount of attorney fees in connection with opposing the RFA Relief Motion, not $10, 000.[3] Plaintiff further argued the trial court did not authorize defendant to seek attorney fees in connection with re-deposing plaintiff because the court ruled only that defendant could seek reasonable costs, and costs do not include attorney fees.

         The trial court held a hearing on defendant's Fees Motion. Again, the record before us includes no reporter's transcript (or an agreed or settled statement) to memorialize what transpired. The brief order issued by the trial court following the hearing states in relevant part as follows: “The court, having considered the court file, including the papers submitted by the parties in connection with this motion, and after hearing the argument of counsel, with satisfactory proof having been made to the court that the relief sought ought to be granted, and good cause otherwise appearing therefor, [¶] IT IS ORDERED that, pursuant to Code of Civil Procedure section 2033.300(c), the motion of defendant WaveFront Technology, Inc., for its attorney fees is granted in the amount of $8, 125.00....”

         II. DISCUSSION

         The absence of an adequate record of what transpired at both of the key hearings in the trial court hobbles plaintiff's appeal. As the party asserting error, it is plaintiff's burden to supply an adequate record, and other than the portion of the trial court's order that states section 2033.300, subdivision (c) was the statutory basis of its attorney fees award, we have no reliable means of assessing the trial court's rationale for awarding fees. Thus, we consider only plaintiff's argument that section 2033.300 cannot authorize an attorney fees ...


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