Tadevosyan v. Shakarian

Filed 7/20/10 Tadevosyan v. Shakarian CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEALS from judgments and an order of the Superior Court of Los Angeles County, Michael Harwin, Judge. Affirmed in part, reversed in part.

Law Offices of Armen M. Tashjian for Plaintiffs and Appellants.

Gilbert, Kelly, Crowley & Jennett, Angelo A. DuPlantier and Warren S. Fujimoto for Defendants and Respondents.

______________________

These appeals are from adverse summary judgments in favor of two groups of defendants in this wrongful death action stemming from a shooting at a restaurant. Appellants, heirs of the decedent, argue: the trial court erred in concluding no duty was owed to protect decedent from the criminal act of a third party; it applied the wrong standard, ignored triable issues of material fact, and considered new evidence improperly submitted in respondents reply pleadings; and summary judgment should have been denied because respondents and their counsel obstructed discovery. In a consolidated appeal, appellants challenge an award of fees incurred by respondents in proving facts denied by appellants in response to requests for admission.

We conclude that appellants failed to present evidence in opposition to the motions for summary judgments sufficient to raise triable issues of material fact as to a duty owed to them by respondents or as to causation. There was no obstruction of discovery by respondents which would warrant reversal.We also conclude respondents did not move to compel further responses to the requests for admission for which fees were awarded and therefore lost their right to such fees. We shall affirm the grant of summary judgment but reverse the fee award.

FACTUAL AND PROCEDURAL SUMMARY

On December 11, 2004, a fight broke out at the Rits Caf^[1]which culminated in the shooting death of Arsen Tadevosyan and the wounding of Hmayak Grishchyan. The first amended complaint (LASC case No. LC076508), the charging pleading, was brought by Tadevosyans heirs: Horomsim Tadevosyan (mother), Anna Aleksanyan (wife), Aghvan Tadevosyan, and Aleksan Tadevosyan (minor children appearing by guardian ad litem). We refer to them collectively as appellants. Named as defendants were Rits Caf, Leila Shakarian, and others. Causes of action were alleged for negligence, negligent hiring-supervision, assault and battery, wrongful death, and a survival action for negligence.

After Leila moved for summary judgment, in October 2007, Robert Shakarian and Russian Nights Restaurant, Inc. (Russian Nights) were added as Doe defendants.^[2] To avoid confusion, we refer to Leila and Robert, former spouses, by their first names, and at times refer to them collectively as respondents.

Victim Grishchyan and his mother, Aida Verdiyan, filed a separate action in Los Angeles Superior Court case No. LC076496, for premises liability and negligent infliction of emotional distress against Rits Caf and Leila Shakarian. That action was consolidated with the Tadevosyan action, with the latter action serving as the lead case. Respondents obtained summary judgment in the Grishchyan action. Later Grishchyan and Verdiyan abandoned their appeal, which was dismissed. Except where necessary for clarity, we confine our discussion to the Tadevosyan action.

In early January 2008, Leila moved for summary judgment. She argued no duty was owed to appellants or to their decedent as a matter of law, because there was no evidence of prior shootings or similar violent crimes on the premises. Leila also argued there was no breach of any duty to appellants and their decedent as a matter of law. Her separate statement of undisputed facts was limited to five factual claims. The first was that the Rits Caf was operated by Rits Unique Caf, Inc. from 2001 to 2006. The second was that the basis for the consolidated actions was the shooting incident on December 11, 2004 at the Rits Caf. The third and fourth undisputed facts set out the shooting injury to Grishchyan and the fatal shooting of Tadevosyan. The last, supported by Leilas declaration, stated: Prior to December 11, 2004, there were no shootings or any other violent incidents at Rits Caf.

Appellants filed opposition to the summary judgment motion on April 15, 2008. They also sought a continuance to complete specified further discovery. Leila filed a reply, arguing that asserted prior incidents at Rits Caf were not similar to this shooting. She also raised objections to the evidence submitted by appellants. At argument on Leilas motion, the trial court indicated it was inclined to grant, but allowed appellants additional time to conduct discovery.

A second opposition to Leilas summary judgment motion was filed by appellants in May 2008. At their request, the hearing on the motion was continued again in July 2008, and then again to September 2008 on appellants ex parte application to allow the presentation of new evidence.

Robert filed a motion for summary judgment against appellants in August 2008. Like Leila, he argued he had no duty to decedent or appellants, and that he did not breach any duty. At the same time, defendant Russian Nights brought a summary judgment motion of its own, arguing it had no liability because the shooting did not occur on its premises.

In late August 2008, appellants filed their third and final opposition papers to Leilas motion, followed by a reply filed by Leila. The trial court heard Leilas motion in September 2008 and took it under submission, then granted the motion. The court found that Leila had shown there were no prior similar violent incidents (shootings) on the premises of the Rits Caf. Based on this showing, the trial court concluded Leila met her initial burden of showing she did not owe a duty to appellants or decedent. The court found that evidence presented by appellants of prior verbal confrontations and minor altercations at the Rits Caf did not rise to the level of prior similar incidents under Ann M. [v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666], and Delgado [v. Trax Bar & Grill (2005) 36 Cal.4th 224], and, therefore, does not raise a triable issue of fact.

The trial court also rejected appellants contention that Robert was the de facto owner of Rits Caf and brought the shooter to Rits from Russian Nights. The court found there was no admissible evidence presented that Robert brought the shooter to Rits Caf, or that he knew or should have known that the shooter had a gun, or that the shooter might shoot someone at Rits Caf. The evidence presented, described by the court as based on speculation and conjecture, was not sufficient to raise a triable issue of material fact as to foreseeability. The court found the cases relied upon by appellants inapposite.

Appellants opposed Roberts motion for summary judgment, raising many of the arguments made in opposition to Leilas motion. Robert replied and objected to evidence submitted by appellants. The summary judgment motions by Robert and Russian Nights were heard in November 2008 and taken under submission. In January 2009, the trial court issued its order granting the motions. It found that Robert and Russian Nights had shown that there were no prior similar violent incidents (shootings) on the premises, and therefore had met the initial burden of showing they owed no duty to decedent or appellants. The evidence submitted by appellants was similar to the evidence in opposition to Leilas motion relating prior verbal confrontations and minor altercations.

Once again, the court found a lack of admissible evidence sufficient to raise a triable issue of material fact that Robert was the actual or de facto owner of the Rits Caf, that he brought the shooter to the caf, that he knew or should have known the shooter was carrying a gun, or that the shooter might shoot someone. The court also rejected appellants theory that Robert was liable for failing to call 911, finding that appellant failed to present evidence to controvert Roberts evidence that he instructed a waitress to call 911, and evidence that patrons of the restaurant immediately called 911. Appellants presented no evidence that any alleged delay in calling 911 or in obtaining treatment was a proximate cause of decedents death from the gunshot wounds.

Judgment for Leila was entered in November 2008. Judgment for Robert was entered in January 2009. Appellants appealed from judgment for Leila in January 2009 and from judgment for Robert in February 2009.

Thereafter, Leila and Robert moved for attorney fees based on appellants failure to admit requests for admission under Code of Civil Procedure section 2033.420. The original motion was denied without prejudice to refiling with more information regarding the expenses incurred in proving the denied requests for admission. In June 2009, Leila and Robert filed a second motion to recover fees on the same ground, with a more detailed declaration regarding fees. Over opposition, the court awarded fees of $36,861 to Leila and Robert. Appellants appealed from that order in September 2009.

We granted appellants motion to consolidate their appeal filed in January 2009 (B213649) with their appeal filed in September 2009 (B219186).^[3]

DISCUSSION

I

The primary issue on appeal is the existence and scope of respondents duty to protect against third party crime. This is a question of law for the court to resolve. (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1213 (Castaneda).) Although duty is a legal question, the factual background against which we decide it is a function of a particular cases procedural posture. (Id. at p. 1214.)

Our de novo review of summary judgment is governed by [Code of Civil Procedure] section 437c, which provides in subdivision (c) that a motion for summary judgment may only be granted when, considering all of the evidence set forth in the papers and all inferences reasonably deducible therefrom, it has been demonstrated that there is no triable issue as to any material fact and the cause of action has no merit. The pleadings govern the issues to be addressed. [Citation.] (Habitat Trust for Wildlife, Inc. v. City of Rancho Cucamonga (2009) 175 Cal.App.4th 1306, 1331.) A defendant moving for summary judgment must demonstrate that there is no triable issue of fact by producing evidence that demonstrates that a cause of action has no merit because one or more of its elements cannot be established to the degree of proof that would be required at trial, or that there is a complete defense to it. Once that has been accomplished, the burden shifts to the plaintiff to show, by producing evidence of specific facts, that a triable issue of material fact exists as to the cause of action or the defense. (Aguilar [v. Atlantic Richfield Co. (2001)] 25 Cal.4th [826,] 849-851, 854-855.) (Ibid.)

It is well established that, as a general matter, there is no duty to act to protect others from the conduct of third parties. (Delgado v. Trax Bar & Grill, supra, 36 Cal.4th 224, 235 (Delgado), citing Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 435.) This case falls within the special relationship exception to the rule, which is applied in cases involving relationships between business proprietors such as restaurants and bars and their patrons or invitees. (Ibid.)

We apply the Supreme Courts four-step approach for analyzing the duty of a landowner to protect from future criminal conduct by a third party. First, the court must determine the specific measures the plaintiff asserts the defendant should have taken to prevent the harm. (Castaneda, supra, 41 Cal.4th at p. 1214, quoting Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 285.) The court explained that this inquiry frames the issue for the courts determination by defining the scope of the duty under consideration. (Castaneda, at p. 1214.) The second step requires the court to consider how financially and socially burdensome these proposed measures would be to a landlord. (Ibid.) These measures could range from minimally burdensome to significantly burdensome, depending on the facts of the case. (Ibid.) In the third step of the analysis, the court must identify the nature of the third party conduct that the plaintiff claims could have been prevented had the landlord taken the proposed measures, and assess how foreseeable (on a continuum from a mere possibility to a reasonable probability) it was that this conduct would occur. (Ibid.)

Once the court has independently assessed burden and foreseeability, they can be compared in determining the scope of the duty the court imposes on a given defendant. (Castaneda, supra, 41 Cal.4th at p. 1214.) This formula, described by the Supreme Court as a sliding-scale balancing formula is that [t]he more certain the likelihood of harm, the higher the burden a court will impose on a landlord to prevent it; the less foreseeable the harm, the lower the burden a court will place on a landlord. (Id. at p. 1214.)

Appellants identify three measures which should have been taken by respondents. First, Robert should not have brought an overly aggressive and intoxicated individual [the shooter], who was witnessed to be belligerent just a short while before the incident, to [the Rits Caf.] Second, respondents should not have allowed customers to bring their own alcoholic beverages to the Rits Caf and consume them without control or supervision. Finally, respondents should have aided decedent or called 911 personally rather than fleeing the restaurant.

We address the latter two measures first. Appellants failed to present any admissible evidence that the fight and shooting were the result of the alcoholic beverage policy employed at Rits Caf. In Delgado, supra, 36 Cal.4th at page 241, the Supreme Court outlined the circumstances in which a duty is imposed on a proprietor serving alcoholic beverages to exercise reasonable care to protect patrons from injury at the hands of fellow guests. These include (1) allowing a guest with a known propensity for fighting on the premises; (2) allowing a person to remain whose conduct has become obstreperous and aggressive to the degree the proprietor knew or ought to have known he endangered others; (3) failing to take suitable measures after being warned of danger posed by an obstreperous patron; (4) failing to stop a fight as soon as possible; (5) failing to keep staff adequate to police the premises; and (6) tolerating disorderly conditions. As we discuss below, there was no admissible evidence of any of these circumstances, or that the Rits Caf beverage policy had resulted in prior violent incidents at the restaurant.

As to the claim that emergency assistance was not summoned promptly, respondents presented the testimony of Robert Shakarian that he directed a waitress to call 911 immediately after the shooting. The evidence also established that other people, including patrons, called 911.^[4] Appellants presented no evidence to controvert the showing that 911 was called. Nor did they present evidence of a delay in seeking emergency treatment for Tadevosyan or that any delay was a proximate cause of his death.

The incidents of prior violence on which appellants rely are not sufficient to make the fight and shooting in December 2004 foreseeable. We apply the well-established principles that a proprietors general duty of maintenance, which is owed to tenants and patrons, . . . include[s] the duty to take reasonable steps to secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures. [Citations.] (Delgado, supra, 36 Cal.4th at p. 235.) The Delgado court explained that in Ann M., supra, 6 Cal.4th 666, it had retreated from the more open-ended formulation of the duty of a proprietor to protect patrons from third party criminal conduct announced in Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112 (Isaacs), a case relied upon by appellants.^[5] (Id. at p. 236.)

In Ann M., the court recognized that foreseeability is a crucial factor in determining the existence or scope of a duty. (6 Cal.4th at p. 678.) The Delgado court explained: I]n cases where the burden of preventing future harm is great, a high degree of foreseeability may be required. [Citation.] On the other hand, in cases where there are strong policy reasons for preventing the harm, or the harm can be prevented by simple means, a lesser degree of foreseeability may be required. [Citation.] [Citation.] Or, as one appellate court has accurately explained, duty in such circumstances is determined by a balancing of foreseeability of the criminal acts against the burdensomeness, vagueness, and efficacy of the proposed security measures. [Citation.] (Ann M., supra, 6 Cal.4th at pp. 678-679.) (Delgado, supra, 36 Cal.4th at pp. 237-238, italics added.)

In Ann M., the Supreme Court observed, [T]he requisite degree of foreseeability rarely, if ever, can be proven in the absence of prior similar incidents of violent crime on the landowners premises. To hold otherwise would be to impose an unfair burden upon landlords and, in effect, would force landlords to become the insurers of public safety, contrary to well-established policy in this state. [Citations.] (Ann M., supra, 6 Cal.4th at p. 679.) In Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138 (Wiener), the Supreme Court quoted Ann M. for the proposition that a duty to take affirmative action to control the wrongful acts of a third party will be imposed only where such conduct can be reasonably anticipated. [Citation.] (Id. at p. 1146.)

Appellants argue that a heightened standard of foreseeability should be applied only where a plaintiff seeks to impose heavily burdensome security measures on a defendant landowner, like hiring security guards. The measures sought by appellants here are less burdensome than the provision of security guards, and therefore they were required to demonstrate a lower degree of foreseeability to establish a duty on the part of respondents. But the evidence presented by appellants was not sufficient to satisfy even this lower standard.

The only evidence cited by appellants for the allegedly undisputed fact that the shooter had behaved in an aggressive and violent manner at Russian Nights and that Robert, with knowledge of this behavior, brought him to the Rits Caf, is the declaration of Misak Tonoyan. Tonoyans declaration incorporates his statement to Los Angeles police officers. He said that he went to Russian Nights on the evening of the murder and saw Robert with a bald man known to him as Rub. Tonoyan states: Robert (owner) and Rub went to the restaurant together and they went to Rits about 1100 or 1130 p.m. In his declaration, Tonoyan says: [T]he younger person, the bald guy who was with the owner of Russian Nights, during the night in question was causing trouble with the help, including verbal abuse and threats, so the owner decided to take him out of there and brought him to Ritz Restaurant where we met later. No foundation for this statement is given and Tonoyan does not explain how this is a matter of his personal knowledge.

In any event, this evidence is not sufficient to establish that Rubs shooting of Tadevosyan at Rits was foreseeable. The vague description of causing trouble with the help which included verbal abuse and threats, does not describe conduct which reasonably warned that Rub was likely to become involved in a fist fight which would lead to a fatal shooting.

Appellants also assert they presented evidence of prior violent incidents at Rits Caf which would support a finding that this attack was foreseeable, giving rise to a duty to implement the urged protective measures. They cite the depositions of several witnesses who had visited the Rits before Tadevosyan was shot. Meri Penesyan testified that she had been to the caf two to three times before. She said she never observed any shootings there. When asked whether she had seen any physical fights at Rits before the night of the shooting, she answered: Uncomfortable situations, yes. She explained that she had seen people hitting or striking each other in the restaurant once.

Alis Penesyan was asked whether there were any problems at the restaurant like fighting, that kind of thing on her visits to Rits before the shooting. She answered: Well, yes. There have been some problems, but it was never like this. She said what she observed was not a physical fight, but pushing and shoving.

Vache Kirakosian had been to the Rits six or eight times in the 15 years before the shooting. He recalled a couple of times when there was fighting, approximately two years before the shooting. He did not call the police on the first occasion and did not ask anyone to call. He did not see any employees of the restaurant attempt to calm down these incidents.

Margaret Janpoladyan said she had been to the Rits four or five times in 2004. She saw a fight between patrons once.

Appellants also cite evidence that there were security cameras installed at the Rits Caf which were not operative at the time of the shooting. They speculate that the cameras must have been necessitated by prior incidents, but fail to provide evidence to support that speculation.

In summary, appellants rely on vague evidence of occasional fist fights which occurred at Rits Caf which did not warrant the intervention of employees or the police. The uncontroverted evidence was that Robert and an employee of Rits both intervened in the fight which erupted and attempted to quell the disturbance. Roberts testimony that he attempted to stop Tadevosyans group from following the shooter out of the restaurant was not controverted. Tonoyans declaration was that the shooter, wounded in the neck and bleeding profusely, acted in self-defense in firing his weapon.

In Delgado, supra, 36 Cal.4th at page 245, an employee of defendant bar was aware a fight was likely to occur, asked plaintiff and his wife to leave, but did not escort them to their car. The plaintiff and his wife were followed into the parking lot, where the security guard was no longer present, and plaintiff was assaulted. The Supreme Court concluded that the employee should have taken minimally burdensome measures such as attempting to maintain the separation between plaintiff and the other group by dissuading them from following plaintiff. In the face of a continuing threat of an assault on plaintiff, the defendant could have confirmed the outside guard was at his post and available to maintain the separation between plaintiff and the other group. (Id. at pp. 246-247.) In contrast, the uncontroverted evidence here is that once the fight started, Robert took measures to stop it and to prevent injury.

The evidence of prior incidents cited by appellants was not sufficiently similar to the violent fight and shooting which led to Tadevosyans death to establish even a low degree of foreseeability. (Delgado, supra, 36 Cal.4th at p. 243.) Appellants argue the trial court erred by requiring evidence of identical prior violent criminal conduct to establish foreseeability. We do not find that the trial court imposed that standard. Exercising an independent review of the evidence, we conclude appellants failed to present evidence that the fatal shooting was foreseeable and thus warranted imposition of a duty to take the protective measures they urged.

In addition, there was no evidence that respondents failed to take appropriate action once the fight began. Appellants presented no evidence to establish the causation element of their cause of action. (See Melton v. Boustred (2010) 183 Cal.App.4th 521, 529.) Respondents therefore demonstrated that appellants cannot establish two of the elements of their negligence action and summary judgment on this ground was proper. (Morris v. De La Torre (2005) 36 Cal.4th 260, 264-265.)

This conclusion is not altered by appellants reliance on the Los Angeles Police Department file on the Tadevosyan homicide which was subpoenaed by counsel for appellants. Among the matters cited by appellants is a statement by an unidentified confidential informant that Robert was a made man with close connections to Russian-Armenian organized crime. That inadmissible assertion has no relevance. The police records, including interviews with witnesses, contain multiple levels of hearsay. Appellants do not argue the application of any exception to the hearsay rule that would render these records admissible. (Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190, 1204-1205.)

Appellants rely on Bartosh v. Banning (1967) 251 Cal.App.2d 378, decided well before Ann M., supra, 6 Cal.4th 666 was decided in 1993. The plaintiff in that case was an innocent bystander injured during a bar fight which occurred while the bartender was out of the room on a telephone call. The Bartosh court said: One who operates a bar where the public is invited must use reasonable care to protect his invitees against injury through the negligent or wrongful acts of other invitees on the premises where he has reasonable cause to anticipate such acts and the probability of injury resulting therefrom. (Bartosh, at pp. 383-384.) Although not expressly overruled, the Bartosh court employed an earlier formulation of the test for duty that would require a bar operator to take action only when he has reason to believe, from what he has observed or from past experience that the conduct of the other will be dangerous to the visitor. (Id. at p. 384.) The court held that it was a question for the trier of fact whether a person in charge of the premises, in the exercise of ordinary care, should have observed the conduct of the offender, realized it was likely to result in injury and stopped it. (Ibid.) We are bound by the Supreme Courts determination that duty is a question of law for the court to resolve. (Castaneda, supra,41 Cal.4th at p. 1213; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Appellants reliance on Robison v. Six Flags Theme Parks Inc. (1998) 64 Cal.App.4th 1294 is misplaced. That case involved negligence by an amusement park patron who drove through a parking lot into an adjacent picnic area, but it did not involve criminal conduct by a third party. In Wiener, supra, 32 Cal.4th 1138, the Supreme Court distinguished Robison.

The Court of Appeal opinion in the Wiener case had relied on Robison in finding the risk of a drivers criminal conduct in driving through a fenced child care center play area was foreseeable. The Supreme Court disagreed: In relying on Robison, supra, 64 Cal.App.4th at pages 1298-1299, the Court of Appeal (and plaintiffs) failed to consider the important differences between the two cases. Specifically, the court did not give due consideration to the criminal nature of [the third partys] injury-producing act, and thus created a duty test that is far too broad . . . . (32 Cal.4th at p. 1149.) In Wiener, the court concluded the defendants owed no duty to the plaintiffs because the third partys criminal conduct was unforeseeable. (Ibid.) There was no evidence of any prior criminal acts involving the child care facility and the court found the foreseeability of the perpetrators committing premeditated murder against the children at the facility could not have been anticipated under any circumstances. (Ibid.)

Barker v. Wah Low (1971) 19 Cal.App.3d 710, also cited by appellants, is distinguishable for the same reason. In Barker, a patron of a drive-in restaurant was standing at an outside service window when a car parked in a nearby parking space lurched over wooden bumper stops and pinned him against the wall, causing fatal injuries. The driver said the accelerator had stuck. As in Robison, there was no indication of criminal conduct by the party responsible for the injuries.

Summary judgment was proper because respondents established that appellants could not demonstrate a duty to prevent the harm suffered or causation.

II

Appellants argue that Leila and Robert obstructed discovery by repeatedly claiming an inability to recall in response to deposition questions. They also claim that counsel for respondents interfered with the depositions by posing improper objections and by instructing Leila and Robert not to answer. Appellants claim there were 32 such instances in less than 65 pages of the first volume of Leilas deposition. In the second volume of her deposition, in less than 70 pages, there were 195 responses to the effect that she could not recall, and 20 instructions not to answer a question. No citation to the record is provided to support these assertions, although seven specific examples are given. Appellants claim a similar pattern occurred during Roberts deposition, again providing only limited examples and no citations to the record for the remaining challenged responses.

The examples from Leilas deposition concern the cameras at Rits Caf, the employees at the caf, and Roberts role at the restaurant. The examples from Roberts deposition concerned his interest in the restaurants or other businesses, whether an employee called him to tell him about the shooting, and whether he was meeting with Tonoyan to plan a party.

Appellants cite Code of Civil Procedure section 437c, subdivision (i) which provides that after a continuance has been granted to allow additional discovery, if the court determines that the party seeking summary judgment has unreasonably failed to allow the discovery to be conducted, the court may grant a further continuance for discovery or deny the summary judgment motion. They fail to argue how complete answers to the examples given would have established a basis for denial of the summary judgment motions. Respondents note that appellants did not move to compel further answers to these deposition questions.

On this record, we find no basis to reverse the judgments based on the claimed obstruction of discovery. Appellants failed to pursue the discovery in the trial court, and failed to establish its materiality on appeal.

III

The court awarded fees of $36,861 to Leila and Robert for expenses incurred to prove matters denied by appellants in response to requests for admission. (Code Civ. Proc., 2033.420.) We review the trial courts order for abuse of discretion. (Miller v. American Greetings Corp. (2008) 161 Cal.App.4th 1055, 1065-1066.)

Code of Civil Procedure section 2033.420 provides: (a) If a party fails to admit the genuineness of any document or the truth of any matter when requested to do so under this chapter, 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 attorneys fees. Subdivision (b) of the statute states that the court shall make this order unless it finds an objection was sustained or a response waived, the admission has no substantial importance, the party failing to make the admission had reasonable ground to believe it would prevail on the matter, or [t]here was other good reason for the failure to admit.

Appellants argue that the fee request was untimely under California Rules of Court, rule 3.1702(b). That rule expressly applies in civil cases to claims for statutory attorneys fees and claims for attorneys fees provided for in a contract. (Cal. Rules of Court, rule 3.1702(a).) We need not determine whether that rule applies here, as we explain.

Identical set of requests for admission were served by Leila on appellants Horomsim Tadevosyan, Anna Aleksanyan, and Aghvan Tadevosyan. The responses by the three of the appellants are identical. The record on appeal does not contain the response by the fourth, but we assume for purposes of this discussion that the response was identical to those of the other appellants.^[6]

Request No. 1 asked appellants to admit that Leila was not at fault for the accident and injuries. Their response was: Objection: This RFA improperly mischaracterizes the murder of plaintiffs decedent as an accident and seeks to invade the area which is exclusively within jurys province. Request No. 2 asked appellants to admit that Leila did not cause any of the damages alleged in the complaint. The response was: Objection: This RFA seeks to circumvent the statutory scheme of C.C.P. 2034 and calls for expert opinion as well as seeks to invade the area which is exclusively within jurys province. Subject to and without waiving the foregoing objections, Responding Party answers: Admit that Defendant LEILA SHAKARIAN dba RITS CAF did not pull the trigger; Deny in regards to proper precautions may have been taken to prevent the incident.

Request No. 3 asked appellants to admit that Leila did not cause the incident. The response was identical to the response to request No. 2. Request No. 4 asked appellants to admit that the alleged acts or omissions of Leila were not a substantial factor in causing the incident and injuries. The response was identical to the response to request No. 2. The responses were identical to request No. 5, which asked the appellants to admit that Leila is not liable for the alleged incident and injuries, and to request No. 6, which asked appellants to admit that that they had no evidence Leila was at fault for the incident. To sum up, appellants denied the admissions only in regards to proper precautions [that] may have been taken to prevent the incident. Requests for admission may include opinion relating to fact, or application of law to fact. (Miller v. American Greetings Corp., supra, 161 Cal.App.4th at p. 1066, citing Code Civ. Proc.,  2033.010.)

In Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618, a plaintiff asked a defendant to admit that the plaintiffs past and future medical expenses were reasonable and necessary. The defendants initial response was an unequivocal denial. Six days later, it amended the response to admit that the past medical care was necessary. But it objected that the request was vague and ambiguous with regard to future medical care. The defendant went on: To the extent defendant can respond, defendant denies that the extent of future medical care, . . . is reasonable and necessary. (Id. at pp. 635-636.) The Court of Appeal held that the plaintiff was not entitled to costs associated with the medical care issue because he made no motion to compel a further response after the defendant objected. (Id. at p. 636.)

Here, there was no unequivocal denial by appellants. Their responses included objections, partial admissions, and partial denials. Under Wimberly v. Derby Cycle Corp., supra, 56 Cal.App.4th at page 636, respondents were required to move to compel further responses in order to preserve the right to fees under section 2033.420, subdivision (b). They did not do so.

DISPOSITION

The award of fees is reversed. In all other respects the judgment is affirmed. Each party is to bear his or her costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P.J.

We concur:

WILLHITE, J.

MANELLA, J.

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^[1] Plaintiffs sued this entity as Ritz Restaurant and under several other variations of that name. Leila Shakarian was named as an individual defendant. An answer was filed by Leila Shakarian dba Rits Caf. In this opinion we adopt respondents usage.

^[2] Rits Unique Caf, doing business as Rits Caf, was a party to Leilas motion for summary judgment. Counsel for Leila on appeal informs us that unbeknownst to counsel, before the summary judgment was filed, Rits Caf was suspended by the Secretary of State. We are told it is not a party to this appeal.

^[3] The appeal from the judgment for Robert, filed in February 2009, was filed under case No. B213649.

^[4] Appellants argue the trial court erred in considering new evidence submitted in Leilas reply to their final opposition to summary judgment. As we have explained, appellants obtained multiple continuances to conduct further discovery, and filed a total of three oppositions to the motion. We find no error. The new evidence was obtained in the depositions conducted by appellants after the original motion was filed. This was Leilas first opportunity to present evidence from those depositions. Appellants had notice of the issues raised by Leila which were clearly set out in her original motion.

^[5] As the Delgado court explained, Isaacs had suggested that a proprietor might have a duty to provide guards to protect patrons and invitees . . . from criminal attacks by third parties upon the premises, so long as such an attack was reasonably foreseeable in light of all the circumstances. (36 Cal.4th at p. 236, quoting Isaacs, supra, 38 Cal.3d at pp. 126-129.)

^[6] The declaration of counsel for respondents in support of the motion for sanctions states that appellant Aleksan Tadevosyans responses to requests for admission are attached to his declaration as exhibit D. In appellants appendix on appeal, exhibit D to that declaration is Aleksan Tadevosyans responses to form interrogatories rather than responses to requests for admission. As we explain, this omission from the record is not dispositive.