Withdrawal of an Admission in California May Shift Costs—Including Attorneys’ Fees—Incurred in Connection with the Withdrawal

Under California Code of Civil Procedure section 2033.300, a court may permit a party to withdraw an admission made in response to a request for admission upon noticed motion. The court may only do so, however, “if it determines that the admission was the result of mistake, inadvertence, or excusable neglect, and that the party who obtained the admission will not be substantially prejudiced in maintaining that party’s action or defense on the merits.” Cal. Code Civ. Proc. § 2033.300(b). The court may also “impose conditions on the granting of the motion that are just, including, but not limited to . . . (2) An order that the costs of any additional discovery be borne in whole or in part by the party withdrawing or amending the admission.” Cal. Code Civ. Proc. § 2033.300(c).

In Rhule v. WaveFront Technology, Inc. (2017) 8 Cal.App.5th 1223, 1225, the California Court of Appeal held that costs under section 2033.300(c) includes reasonable attorneys’ fees incurred in connection with the withdrawn admissions. In that case, a former employee brought an action against his former employer for wrongful termination. Id. During discovery, the employee realized that he had mistakenly made admissions in response to two requests for admission served by the employer. Id. The employee then filed a motion to withdraw the admissions after the defendant employer refused to stipulate to allow the withdrawal. Id. at 1226. The trial court granted the employee’s motion, and set a future hearing date for the defendant employer’s motion for attorneys’ fees. Id. Following the motion for attorneys’ fees, the trial court issued an order granting defendant employer’s motion and awarding $8,125.00 in attorneys’ fees. Id. at 1226–27.

The California Court of Appeal affirmed the trial court’s decision, holding that section 2033.300’s reference to costs should be read to include attorneys’ fees, and that such a reading is supported by both California’s general civil costs statute (California Code of Civil Procedure section 1033.5(a)(10), which treats attorneys’ fees as a subcategory of “costs”), and the statute specific to requests for admission (California Code of Civil Procedure 2033.420(a), which authorizes attorneys’ fees where a party fails to admit the truth of any matter that is later proven by the party requesting the admission). Id. at 1228. The court further found that even if attorneys’ fees did not constitute a subcategory of “costs” under section 2033.300, the statute does not limit a court’s discretion to award attorneys’ fees as an element of courts, because the statute also grants the court discretion to impose “just” conditions that are not limited to those specified in the statute. Id.

Rhule has now clarified that under section 2033.300, a party may obtain attorneys’ fees incurred in opposing a motion to withdraw admissions, in addition to attorneys’ fees that are incurred in additional discovery made necessary as a result of the withdrawal (such a re-taking a party’s deposition).