Filed 2/23/2017
                  CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                  SECOND APPELLATE DISTRICT

                         DIVISION FIVE


CARLTON RHULE,                           B267359

       Plaintiff and Appellant,          (Los Angeles County
                                         Super. Ct. No. BC540719)
       v.

WAVEFRONT TECHNOLOGY,
INC.,

       Defendant and Respondent.


     APPEAL from an order of the Superior Court of Los
Angeles County, Terry A. Green, Judge. Affirmed.
     Mark Weidmann for Plaintiff and Appellant.
     Johnson & Associates and William D. Johnson for
Defendant and Appellant.
       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




                                 2
Procedure section 2033.3001 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


1
     Statutory references that follow are to the Code of Civil
Procedure.
2
       A notice of ruling prepared by counsel for defendant
provides additional detail as to what purportedly transpired at
the hearing. It states the court ruled defendant “shall be
awarded its attorney fees in having to oppose the [RFA Relief
Motion], appear at the hearing on the Motion, and retake the
plaintiff’s deposition; the court will decide the amount of attorney
fees to be awarded upon [defendant’s] noticed motion for
them . . . .” Because the notice of ruling was not issued or
approved by the trial court, we do not rely on the accuracy of its
contents in resolving this appeal.




                                 3
       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

3
      With his opposition, plaintiff submitted a declaration from
counsel that purported to recount certain of the trial court’s
rulings during the hearing on the RFA Relief Motion, including
the alleged statement concerning the authorization of a
“nominal” sum of attorney fees. Because the declaration from
counsel was not issued or approved by the trial court, we do not
rely on the accuracy of its contents in resolving this appeal.




                                  4
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 award under any
circumstances. If plaintiff is wrong about that—and he is—the
inadequacy of the record precludes further review and affirmance
is required.
       Section 2033.300 provides in full as follows: “(a) A party
may withdraw or amend an admission made in response to a
request for admission only on leave of court granted after notice
to all parties. [¶] (b) The court may permit withdrawal or
amendment of an admission only 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. [¶] (c) The court may impose conditions on
the granting of the motion that are just, including, but not limited




                                 5
to, the following: [¶] (1) An order that the party who obtained the
admission be permitted to pursue additional discovery related to
the matter involved in the withdrawn or amended admission. [¶]
(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.” (Emphasis added.)
       Plaintiff agrees that subdivision (c) of section 2033.300
gives a trial court discretion to conditionally grant a motion to
withdraw or amend a response to an RFA, but he emphasizes the
statute makes no express reference to attorney fees—only “costs”
of additional discovery. Thus, in his view, conditioning relief
upon the payment of attorney fees is not authorized by the
statute. The argument fails for two reasons.
       First, section 2033.300’s reference to costs should be read to
include attorney fees: both the general civil costs statute and a
statute specific to requests for admission support such a reading.
(See § 1033.5, subd. (a)(10) [treating attorney fees as a sub-
category of “costs”]; § 2033.420, subd. (a) [“If a party fails to
admit . . . the truth of any matter when requested to do so under
this chapter, and if the party requesting that admission
thereafter proves . . . 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”].) Second, even if attorney fees are
not understood as a subset of permissible “costs,” section
2033.300 does not limit a court’s discretion to those conditions set
forth in subdivisions (c)(1) and (c)(2). Rather, by its express
terms, section 2033.300 gives a court discretion to impose “just”
conditions that are “not limited to” those specified in the statute.




                                 6
An award of attorney fees that is reasonable in light of the
conditional relief granted can accordingly be such a condition.4
      Plaintiff argues, however, that the trial court’s attorney
fees award in this case was an abuse of its discretion. (Southern
California Gas Co. v. Flannery (2016) 5 Cal.App.5th 476, 485
[order granting attorney fees is reviewed for abuse of discretion].)
He maintains the trial court stated it would only authorize a
“nominal” amount of fees at the hearing on the RFA Relief
Motion, he asserts the trial court did not authorize defendant to
recoup fees associated with re-taking plaintiff’s deposition, and
he makes largely perfunctory objections to the reasonableness of
some of the hours for which defense counsel sought
compensation.
      The party challenging an award of attorney fees bears the
burden of providing an adequate record to demonstrate error.
(Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295; Vo v. Las Virgenes
Municipal Water Dist. (2000) 79 Cal.App.4th 440, 448 [“The
absence of a record concerning what actually occurred at the trial
precludes a determination that the trial court abused its
discretion” in awarding $470,000 in attorney fees]; see also
Ballard v. Uribe (1986) 41 Cal.3d 564, 574 [“It is well settled, of


4
      Plaintiff also argues the court had no power to award fees
to defendant because it was not the prevailing party in
connection with the RFA Relief Motion. An award of fees under
section 2033.300 does not require a determination that the party
seeking fees prevailed on a motion to withdraw or amend an
admission—indeed, quite the opposite. The statute provides a
court can impose “conditions on granting the motion,” which
presumes the conditions (e.g., the award of attorney fees here)
will be imposed only where the moving party prevails.




                                 7
course, that a party challenging a judgment has the burden of
showing reversible error by an adequate record”].) Without a
reporter’s transcript or an agreed or settled statement of the
proceedings at the two pertinent trial court hearings, we do not
know the basis of the trial court’s reasoning in awarding fees, nor
can we assess the merits of plaintiff’s contentions about certain
rulings or statements made by the trial court during the hearings
in question.5 Because we have concluded section 2033.300 does
permit, as a general matter, a court to condition relief on the
payment of reasonable attorney fees, the remainder of plaintiff’s
contentions must therefore fail. We do not presume error on
appeal; rather, the opposite is true: we presume that the court’s
fees order is correct unless plaintiff demonstrates the trial court
abused its discretion—which he has not.6 (Maria P. v. Riles,


5
      This is not a case where the trial court’s written rulings (or
other materials in the record) sufficiently illuminate the factual
and legal predicate for the trial court’s orders. The written
rulings included in the record are quite succinct, which is further
indication that a reliable record of what transpired at the
hearings is indispensible for our review.
6
       Plaintiff cites Gardner v. Superior Court (1986) 182
Cal.App.3d 335 for the proposition that the presumption of
correctness for trial court judgments can be overcome where the
appellate record reveals a trial court entirely failed to exercise
any discretion. The trial court here awarded significantly less
than the full amount of attorney fees defendant requested. The
court’s reduction of the amount sought is proof positive that the
trial court did not utterly fail to exercise its discretion. (Akins v.
Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1134
[“The award granted was significantly reduced from the original
request as a result of the trial court’s indication that it did not



                                   8
supra, 43 Cal.3d at p. 1295 [trial court’s failure to specify in its
written order the basis of its calculation of the fee award, and the
absence of a transcript of the fee hearing or a settled statement of
that proceeding in the record, rendered it impossible to determine
whether the trial court used an appropriate method to determine
fees]; see also Denham v. Superior Court (1970) 2 Cal.3d 557,
564.)

                          DISPOSITION
     The trial court’s attorney fees order is affirmed.
Respondent shall recover its costs on appeal.

              CERTIFIED FOR PUBLICATION



                            BAKER, J.

We concur:



      TURNER, P.J.



      KRIEGLER, J.




look favorably on the full request. Thus, it clearly appears that
the trial court exercised its discretion”].)




                                 9
