Filed 7/23/19 (unmodified opinion attached)
                  CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                   SECOND APPELLATE DISTRICT

                              DIVISION EIGHT


AARON SAMSKY,                                  B293885

       Plaintiff and Appellant,                (Los Angeles County
                                               Super. Ct. No. BS175182)
       v.
                                               ORDER MODIFYING
STATE FARM MUTUAL                              OPINION AND DENYING
AUTOMOBILE INSURANCE                           PETITION FOR REHEARING
COMPANY,
                                               [NO CHANGE IN JUDGMENT]
       Defendant and Respondent.




THE COURT:
      Good cause appearing, the opinion in the above entitled
matter, filed on June 26, 2019, Certified for Publication, is hereby
modified as follows:

      On page 11, the last paragraph with the words “Jensen’s
out-of-court statement.” Strike the first two sentences of the
paragraph, beginning with the word “Jensen’s” through the word
“arbitration.”
      On page 12, after the end of the partial paragraph and
before heading 2. Insert the following paragraph:

       Respondent has also failed to show that its reliance on
Jensen’s recorded statement was reasonable. When a party
denies an RFA, “[t]he question is not whether a reasonable
litigant would have denied the RFAs. Nor is the question simply
whether the litigant had some minimum quantum of evidence to
support its denial (i.e., ‘probable cause’). The “relevant question is
whether the litigant had a reasonable, good faith belief he or she
would prevail on the issue at trial. [Citations.]” (Orange County
Water Dist. v. The Arnold Engineering Co. (2018) 31 Cal.App.5th
96, 119.) “Consideration of this question requires not only an
assessment of the substantiality of the evidence for and against
the issue known or available to the party, but also the credibility
of that evidence, the likelihood that it would be admissible at
trial and persuasive to the trier of fact, the relationship of the
issue to other issues anticipated to be part of trial (including the
issue's importance), the party's efforts to investigate the issue
and obtain further evidence, and the overall state of discovery at
the time of the denials and thereafter.” (Ibid.) State Farm
makes no attempt to address these factors, or to explain why it
was reasonable to believe the arbitrator would consider or be
persuaded by an equivocal and confusing recorded account of the
accident provided by a person who had an interest in minimizing
her own liability for the accident, and which Samsky had no
ability to challenge or even clarify. It is unsurprising the
arbitrator excluded the recorded statement.




                                  2
     The petition for rehearing is denied.
     [There is no change in the judgment.]




____________________________________________________________
BIGELOW, P. J.            GRIMES, J.        STRATTON, J.




                               3
Filed 6/26/19 (unmodified opinion)
                  CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                   SECOND APPELLATE DISTRICT

                              DIVISION EIGHT


AARON SAMSKY,                                            B293885

       Plaintiff and Appellant,                          (Los Angeles County
                                                         Super. Ct. No. BS175182)
       v.

STATE FARM MUTUAL
AUTOMOBILE INSURANCE
COMPANY,

       Defendant and Respondent.




     APPEAL from a judgment of the Superior Court of
Los Angeles County, Barbara A. Meiers, Judge. Reversed and
remanded.
     Phillips, Erlewine, Given & Carlin, Nicholas A. Carlin,
David M. Given and Brian S. Conlon for Plaintiff and Appellant.
     Farmer Case & Fedor, John T. Farmer and Raquel E.
Howard for Defendant and Respondent.
                             _________________________
        This appeal challenges the superior court’s denial of
appellant’s motion for costs of proof after respondent denied eight
of his requests for admission (RFAs). Appellant Aaron Samsky
prevailed at the arbitration of the parties’ dispute, and then
moved for an award of costs of proving matters State Farm
Mutual Automobile Insurance Company (State Farm) denied in
the RFAs. Pursuant to Code of Civil Procedure section 2033.420,
subdivisions (a) and (b),1 the trial court denied the motion,
incorrectly placing on appellant the burden to prove that none of
the exceptions to an award of costs as set out in subdivision (b)
applied. State Farm should have carried the burden of proof and
it failed to do so. We reverse and remand the matter to the trial
court to determine appellant’s reasonable costs of proof.
                           BACKGROUND
        On July 27, 2015, appellant’s vehicle was hit from behind
by a potentially underinsured driver; the accident was part of a
multi-vehicle collision. On September 10, 2015, appellant’s
vehicle was hit from behind again by a potentially underinsured
driver. Appellant claimed he suffered a concussion, traumatic
brain injury, and ulnar nerve injury to his wrist in the July
accident and lower back injuries in the September accident.
Appellant settled with the drivers for their policy limits of
$15,000. He then made claims against his own insurer,
respondent State Farm, under his Underinsured Motorist policy
for additional damages caused by each of the two accidents.
        The parties agreed to combine the two sets of claims into a
single arbitration. Close to the arbitration, appellant propounded


1     Further undesignated statutory references are to the Code
of Civil Procedure.



                                2
eight RFAs concerning the July accident, two concerning his lack
of negligence in causing the accident and six concerning the brain
and wrist injuries he claimed were sustained in that accident.
State Farm denied all eight RFAs.
       Shortly before the arbitration began, State Farm agreed to
pay appellant’s claims for the September accident. Thus, the
arbitration involved only the claims for the July accident. The
arbitration extended over three days. The arbitrator found there
was no evidence appellant “was in any way responsible for the
accident of July 27, 2015, and the issue of liability is decided in
his favor.” The arbitrator awarded appellant special damages for
all of his medical bills and lost earnings for the period between
the July and September accident, and also awarded general
damages. The arbitrator noted some of appellant’s treatment for
injuries sustained in the July accident took place after the
September accident, and those costs were included in the general
damages due to the difficulty of accurately apportioning the
medical bills.
       Pursuant to section 2033.420, appellant moved for costs of
proving the truth of the matters in the eight RFAs which State
Farm had denied. At State Farm’s urging, the arbitrator
declined to consider appellant’s motion, and the matter was
decided by the trial court which confirmed the arbitration award.
Nevertheless, the trial court denied appellant’s motion for costs of
proof. This appeal followed.
                              DISCUSSION
       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




                                 3
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 attorney’s fees.
       “(b) The court shall make this order unless it finds any of
the following: [¶] (1) An objection to the request was sustained
or a response to it was waived under Section 2033.290. [¶] (2)
The admission sought was of no substantial importance. [¶] (3)
The party failing to make the admission had reasonable ground
to believe that that party would prevail on the matter. [¶] (4)
There was other good reason for the failure to admit.”
        “Courts have uniformly reviewed orders granting or
denying cost of proof awards for abuse of discretion. [Citations.]”
(Orange County Water Dist. v. The Arnold Engineering Co. (2018)
31 Cal.App.5th 96, 118.) However, “[t]he abuse of discretion
standard is not a unified standard; the deference it calls for
varies according to the aspect of a trial court’s ruling under
review. The trial court’s findings of fact are reviewed for
substantial evidence, its conclusions of law are reviewed de novo,
and its application of the law to the facts is reversible only if
arbitrary and capricious.” (Haraguchi v. Superior Court (2008)
43 Cal.4th 706, 711–712, fns. omitted.)
A. The Trial Court Did Not Abuse Its Discretion In Impliedly
Finding Appellant Had Proven The Truth Of The Matters In His
RFAs.
       The trial court began its ruling by stating that the “primary
issues to be decided . . . is whether or not Respondent, as a party
failing to make admissions when asked to do so, had, at the time
of that refusal to admit, a ‘reasonable ground to believe [it] would
prevail on the matter’ and/or that, ‘there was other good cause for



                                 4
the failure to admit.’ ” These issues represent exceptions to the
cost of proof statute found in section 2033.420, subdivision (b),
which only applies once the moving party has satisfied the
requirements of subdivision (a). Thus, by defining the issues to
be decided as those exceptions listed in subdivision (b), the trial
court made an implied finding that appellant had proven the
truth of the matters in his RFAs. There is substantial evidence
to support this finding in the arbitrator’s award.
       1. There is substantial evidence appellant proved he was not
negligent.
       State Farm denied the following two RFAs: (1) “Admit that
[appellant] was not negligent in connection with [the July
incident],” and (2) “Admit that [appellant’s] negligence was not a
substantial factor in causing [the July incident].”
       The arbitrator found: “There is no evidence to suggest that
[appellant] was in any way responsible for the accident of
July 27, 2015, and the issue of liability is decided in his favor.”
The arbitrator’s finding is substantial evidence that appellant
was not negligent in causing the July accident.
       2. There is substantial evidence appellant proved he
initially suffered the claimed injuries in the July accident.
       State Farm denied the following six RFAs concerning
appellant’s injuries:
       (1) “Admit that [appellant] suffered a concussion as a result
       of [the July incident];”
       (2) “Admit that [the July incident] was a substantial factor
       in causing [appellant’s] concussion;”
       (3) “Admit that [appellant] suffered a traumatic brain
       injury as a result of [the July incident];”
       (4) “Admit that [the July incident] was a substantial factor
       in causing [appellant’s] traumatic brain injury;”



                                 5
       (5) “Admit that [appellant] suffered from an ulnar
       neuropraxis as a result of [the July incident],” and
       (6) “Admit that [the July incident] was a substantial factor
       in causing [appellant’s] ulnar neuropraxis.”
       The arbitrator did not expressly find appellant suffered a
concussion, traumatic brain injury or ulnar neuropraxis as a
result of the July accident. Nevertheless, the arbitrator’s
statements and damages award taken as a whole demonstrate
the arbitrator impliedly made such a finding.
       As the arbitrator noted, appellant claimed that he suffered
injuries to his left hand and arm and mild traumatic brain injury
in the July accident, and his experts testified he needed surgery
to correct an “ulnar” injury. The arbitrator then found appellant
“was involved in a second accident on September 10, 2015, which
exacerbated the injuries sustained in the earlier [July] accident
and caused a lower-back injury.” The arbitrator also found “some
of [appellant’s] treatment after the 9/10/15 accident was partially
due to injuries sustained in the 7/27/15 accident.” In addition,
the arbitrator found appellant was involved in some accidents
prior to the July accident but there was no evidence those
accidents “contributed in any manner to his medical complaints”
after the July incident. Taken together, these findings establish
appellant suffered the injuries claimed from the July accident.
       The arbitrator also found “[t]he testimony of [State Farm’s]
doctors that two injuries came about at the same time as the
accident but were related to sleep apnea and repetitive use of the
wrist is not believable. That is too much in the realm of
coincidence.” Although the arbitrator also expressed some doubts
about appellant’s experts, the arbitrator found only that “it is not
totally believable that [appellant’s] doctors lay most of his




                                 6
injuries off of the 7/27/15 accident” after the September accident
claim had been settled. At the same time, the arbitrator did find
that some of appellant’s medical costs incurred after the
September accident were attributable to the July accident.
Moreover, the arbitrator awarded appellant all of his medical
expenses for the concussion and ulnar injury. Taken as a whole,
these findings reinforce the arbitrator’s earlier finding that
appellant suffered the injuries claimed from the July accident,
and those injuries were exacerbated by the September accident.
B. The Trial Court Erred In Placing The Burden Of Proof Or
Persuasion On Appellant To Show The Non-existence Of
Exceptions.
       Although the trial court correctly found appellant had
proven the truth of the matters asserted in its RFAs, and thus
satisfied the requirements of section 2033.420, subdivision (a),
the trial court imposed an additional burden on appellant to
recover costs. The trial court stated: “Unfortunately, even
though these are the key issues to be addressed, to wit, an
evaluation of whether or not there was a ‘reasonable ground’ or
‘other good cause’ existing at the time, neither side has chosen to
directly address them or to deal with the proper time frame.”
The court then explained its “view” that appellant “had the
‘burden of proof’ or, perhaps more accurately, of ‘persuasion’ in
connection with this motion, but even if he did not, given that
[appellant] has failed to properly address the only salient issues.”
       The two issues described by the court are taken from
section 2033.420, subdivision (b); the plain language of the
section as a whole shows that the circumstances listed in
subdivision (b) are exceptions to the rule of subdivision (a). The
last sentence of subdivision (a) states the party requesting the
admission may move the court for an order awarding cost of



                                 7
proof. Subdivision (b) states “The court shall make this order
[awarding costs] unless it finds any of the following” specified
circumstances exist. Thus the circumstances listed in subdivision
(b) are exceptions to the rule that a moving party is entitled to
costs of proof, and the trial court erred in placing the burden of
proof or persuasion on appellant to show that such exceptions did
not apply.
       It is well established in California that “the party seeking
to benefit from an exception to a general statute bears the burden
to establish the exception.” (Simpson Strong-Tie Co., Inc. v. Gore
(2010) 49 Cal.4th 12, 24–25 [considering commercial speech
exemption to anti-SLAPP statute.].) State Farm sought to
benefit from the exceptions listed in section 2033.420, subdivision
(b), and thus it had the burden of establishing the applicability of
the exceptions listed therein.
       Although there is no case law expressly applying this
general rule to section 2033.420, the Fifth District Court of
Appeal has impliedly found that the burden of justifying denial of
RFAs falls on the responding party. (See Garcia v. Hyster Co.
(1994) 28 Cal.App.4th 724, 735.) More recently, the Fourth
District Court of Appeal placed the burden of showing
“reasonable grounds” on the party seeking to avoid paying costs,
stating without elaboration that the party denying an RFA “is not
responsible for [the propounding party’s] costs if it shows it ‘had
reasonable ground to believe [it] would prevail on the matter.’ ”
(Orange County Water Dist. v. The Arnold Engineering Co.,
supra, 31 Cal.App.5th at p. 120.)
       In addition, a well-respected and widely used practice guide
advises that the party seeking to avoid paying costs under section
2033.420 has the burden of proving the exceptions listed in




                                 8
subdivision (b). (Edmon & Karnow, Cal. Practice Guide: Civil
Procedure Before Trial (The Rutter Group 2019) ¶ 8:1408.) While
this guide is not binding authority on any court, it can be a
persuasive and helpful source in the absence of case law on a
topic. (See California Rules of Court, rule 3.1113(b).) Certainly,
as a practical matter, the denying party is in the best position to
explain the reasons for its denial.
       Respondent’s reliance on appeal on Smith v. Circle P Ranch
Co. (1978) 87 Cal.App.3d 267 (Smith) to show appellant had the
burden of proof for section 2033.420, subdivision (b) is misplaced.2
Smith considered former section 2034, subdivision (c), a much
earlier version of section 2033.420, subdivisions (a) and (b).
Former section 2034, subdivision (c), provided: “ ‘If a party, after
being served with a request under Section 2033 of this code to
admit the genuineness of any documents or the truth of any
matters of fact, serves a sworn denial thereof and if the party
requesting the admissions thereafter proves the genuineness of
any such document or the truth of any such matter of fact, he
may apply to the court in the same action for an order requiring
the other party to pay him the reasonable expenses incurred in
making such proof, including reasonable attorney’s fees. If the
court finds that there were no good reasons for the denial and that
the admissions sought were of substantial importance, the order
shall be made.’ ” (Smith, supra, at pp. 273–274, second italics
added.) Thus, under this version of the statute, a showing of “no
good reasons” for denial was a prerequisite for recovery of costs.



2     Respondent did not cite to or rely on Smith in its opposition
in the trial court.



                                 9
      Former section 2034, subdivision (c) was substantially
altered by the California Civil Discovery Act of 1986. Section
2034, subdivision (b), was replaced by former section 2033,
subdivision (o), which provided “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. The court shall make this order unless it finds that (1) an
objection to the request was sustained or a response to it was
waived under subdivision (l), (2) the admission sought was of no
substantial importance, (3) the party failing to make the
admission had reasonable ground to believe that that party
would prevail on the matter, or (4) there was other good reason
for the failure to admit.” (Former § 2033, subd. (o), italics
added.)3 This new subdivision made “reasonable ground[s]” or
“other good reason[s]” for denial exceptions to the rule that costs
should be awarded. Section 2033, subdivision (o) is virtually
identical to section 2033.420, subdivisions (a) and (b). The
reasoning of Smith is not helpful in understanding these more
recent versions of the statutory provision authorizing costs of
proof of RFA denials.
C. The Trial Court Did Not Abuse Its Discretion In Finding
Respondent Failed To Show The Existence Of Any Exception
Under Section 2033.420, Subdivision (b).
      Although the trial court erred in denying appellant’s
motion on the ground appellant failed to prove the non-existence
of an exception under section 2033.420, subdivision (b), the court

3     Added by Statutes. 1986, chapter 1334, section 2, operative
July 1, 1987; Repealed by Statutes 2004, chapter 182, section 22,
operative July 1, 2005



                                10
also stated its expectation that State Farm would offer proof on
this topic. The court found that “Respondent should have been
filing opposition papers along the same lines [as appellant]
showing what facts it did or did not have when it filed its
responses and what ‘reasonable grounds’ it had for its failures to
admit, accompanied by its arguments as to whether the court
should alternatively find that there is ‘other good reason for the
failure to admit.’ ” The court found that State Farm did not do
so. There is substantial evidence to support this finding.
       1. There is substantial evidence State Farm failed to prove
it had reasonable grounds to deny appellant’s request to admit he
was not negligent.
       State Farm contends it proved it had reasonable grounds to
deny the RFAs related to the issue of comparative negligence.
State Farm points to undisputed evidence that it paid appellant
for damage to the front of his car after the July accident. State
Farm contends appellant failed to admit that he rear-ended the
car in front of him before he was himself rear-ended and pushed
into that car, a situation which could show he was negligent.
State Farm also contends the driver of the car in front of
appellant, Ms. Jensen, made a statement which suggested that
appellant hit her twice, reinforcing State Farm’s view that
appellant rear-ended Jensen before he was himself rear-ended
and pushed into her car. State Farm’s counsel tried but was
unable to locate Jensen and so could not present her as a witness
at the arbitration.
       Jensen’s out-of-court statement was inadmissible under the
hearsay rule. (Evid. Code, § 1200.) For that statement to
constitute a good reason to deny the RFAs, State Farm would
have needed confirmation of Jensen’s availability to testify as a
witness at the arbitration. “[RFAs] . . . are primarily aimed at



                               11
setting at rest a triable issue so that it will not have to be tried.
Thus, such requests, in a most definite manner, are aimed at
expediting the trial.” (Cembrook v. Superior Court (1961) 56
Cal.2d 423, 429; see also Stull v. Sparrow (2001) 92 Cal.App.4th
860, 864 [instead of “seeking to uncover information, [RFAs] seek
to eliminate the need for proof”].) At some point, State Farm’s
inability to locate Jensen rendered unreasonable its reliance on
her as a basis to deny the RFAs. State Farm failed to present any
evidence on the state of their efforts to locate Jensen at the time
it denied the RFAs on the issue of negligence.4
       2. There is substantial evidence respondent failed to prove
it had reasonable grounds to deny appellant’s requests to admit he
suffered the claimed injuries and that they were the result of the
July accident.
       On appeal, State Farm contends it had reasonable grounds
to deny the RFAs relating to appellant’s claimed brain injury
based on the expert opinions of Dr. Carpenter, Dr. Woo, and
Dr. Regev. State Farm also contends it had reasonable grounds
to deny the RFAs relating to the ulnar injury based on the expert
opinions of Dr. Gupta, Dr. Woo, and Dr. Regev.
       In the trial court, State Farm argued that it was reasonable
to deny the injuries based only on looking at the damage to
appellant’s vehicle (as interpreted by its accident reconstruction
expert Singh). State Farm also stated generally that it hired

4      State Farm also argues it chose “not to argue some
negligence should be placed on the ‘unknown driver who merged
into traffic several cars ahead of [Samsky].’ ” State Farm did not
make this argument in the trial court, and it is not clear how
such a merger would lay blame for the accident on appellant.
Appellant’s RFAs concerned appellant’s own negligence, and not
that of any other specified driver.



                                 12
three of their own experts to establish that appellant did not
suffer the claimed injuries. As the trial court pointed out, State
Farm did not show whether it relied on those expert opinions
when it denied the RFAs relating to the injuries, or whether it
had received copies of appellant’s expert opinion reports. This
omission alone is sufficient to support the trial court’s finding
that State Farm did not show “what facts it did or did not have
when it filed its responses and what ‘reasonable grounds’ it had
for its failure to admit.”
       We note that the arbitrator found State Farm’s medical
experts not credible because they claimed that appellant’s “two
injuries came about at the same time as the accident but were
related to sleep apnea and repetitive use of the wrist” and this
was “too much in the realm of coincidence, especially when
[appellant] never complained of sleep apnea [or] pain in the wrist
due to repetitive usage.” Thus, even if State Farm did have its
experts’ opinions when it denied the RFAs, a question would
remain concerning whether reliance on those opinions was
reasonable.5 State Farm left this question unaddressed in the
trial court as well.


5     State Farm complains the arbitrator did not refer to the
testimony of two of its experts, Dr. Carpenter (an “accident
reconstructionist and biomechanical expert”) and Mr. Singh in
the Award. It contends the testimony of these two experts
provided sufficient grounds for State Farm to believe appellant
did not suffer a concussion. As was the case with the medical
experts, State Farm did not offer facts showing when it learned of
these experts’ conclusions in relation to its denial of the RFAs.
Further, there could be many reasons for the arbitrator’s silence
on these experts, including a conclusion the testimony was not
relevant, useful or credible. This summarized testimony without


                                13
D. This Matter Must Be Remanded For A Determination Of
Costs.
       State Farm contends we should uphold the trial court’s
denial of costs under the doctrine of implied findings by holding
that the record supports a denial of costs based on “the inability
to determine recoverable versus nonrecoverable costs.” State
Farm maintains appellant’s “block billing [made] it impossible to
determine what would be related to any one (or multiple) denied
issues.”
       The trial court made clear the basis for its ruling, and there
is no reason to believe it also denied the motion on the additional
unmentioned ground of problems with cost itemization,
particularly since State Farm did not raise this argument in the
trial court. There, State Farm argued only that appellant’s
requested hourly rates were unreasonable. Even on appeal, State
Farm makes only a cursory factual argument to support its claim,
citing only a “few” examples to justify denial of appellant’s entire
motion. That is not sufficient.
       As we explain in this opinion, appellant proved that he was
entitled to costs under section 2033.420, subdivision (a). State
Farm failed to prove that any of the exceptions to a cost award
applied to it. Accordingly, the matter must be remanded to the
trial court to determine appellant’s “reasonable expenses
incurred in” proving the matters asserted in his RFAs.
(§ 2033.420, subd. (a).)




more is not sufficient to show reasonable grounds for State
Farm’s denials of the RFAs.



                                 14
                           DISPOSITION
      The trial court’s judgment is reversed, and this matter is
remanded for a determination of appellant’s reasonable expenses
incurred in proving the matters in the RFAs denied by
respondent. Appellant to recover costs on appeal.

CERTIFIED FOR PUBLICATION




                                         STRATTON, J.



We concur:




             BIGELOW, P. J.




             GRIMES, J.




                               15
