Tentative Ruling: Susan Hilliard vs Anastacia Campbell et a
Case Number
22CV04533
Case Type
Hearing Date / Time
Mon, 03/02/2026 - 10:00
Nature of Proceedings
Motion: Attorney Fees and Cost of Proof Sanctions
Tentative Ruling
Hilliard v. Campbell, et al.
Case No. 22CV04533
Hearing Date: March 2, 2026
HEARING: Defendants’ Motion for Cost of Proof Sanctions under Code of Civil Procedure Section 2033.420 or in the Alternative for Sanctions under Code of Civil Procedure Sections 128.5 and 128.7
ATTORNEYS: For Plaintiff Susan Hilliard: Robert C. Little, Paula B. Hernandez, Buchalter LLP
For Defendant Anastacia Campbell and Mark Campbell: Marc S. Shapiro, Jonathan P. Cyr, Matthew C. Dingilian, Hanger, Steinberg, Shapiro & Ash
TENTATIVE RULING:
Defendant’s motion for cost of proof sanctions under Code of Civil Procedure section 2033.420 or in the alternative for sanctions under Code of Civil Procedure sections 128.5 and 128.7 is denied.
Background:
On August 10, 2023, plaintiff Susan Hilliard filed her third amended complaint (TAC) setting forth six causes of action against defendants Anastacia Campbell (Anastacia) and Mark Campbell (Mark) (collectively, defendants) for: (1) conversion; (2) trespass to chattels; (3) aiding and abetting conversion; (4) aiding and abetting trespass to chattels; (5) negligence; and (6) aiding and abetting negligence. (Note: Due to common surnames and to avoid confusion, the court will refer to defendants by their first names. No disrespect is intended.)
As alleged in the TAC:
Plaintiff and defendants reside in the El Capitan Ranches development (El Capitan) which is located in the County of Santa Barbara. (TAC, ¶¶ 1-3.) Plaintiff raises, cares for, and owns parrots as pets, and has trained some of them to fly unrestrained and return to her. (TAC, ¶ 5.) One of Plaintiff’s parrots is a blue-throated macaw named Dread. (TAC, ¶ 6.) Plaintiff purchased Dread approximately 15 years ago when he was a few months old. (TAC, ¶ 7.)
After taking possession of her property in El Capitan, plaintiff sent an email through a resident group chat notifying her neighbors that any birds that may visit neighboring property should not be encouraged to hang around because they could cause property damage. (TAC, ¶ 8.) Plaintiff suggested that her neighbors shoo visiting birds away with hoses, towels, or by using a cap gun. (Ibid.) Anastacia responded to plaintiff’s email stating that she did not want parrots at her property and that she had a “BB” gun to get rid of them. (TAC, ¶ 9.)
On March 14, 2021, Dread and two of plaintiff’s other parrots were flying unrestrained at plaintiff’s property. (TAC, ¶ 10.) Around 1:15 p.m. that day, Anastacia sent a message through the group chat stating there was a parrot in her yard. (TAC, ¶ 11.) Thirty-three minutes later, Anastacia posted a video to the group chat “showing [Mark] stalking across [defendants’] property with a rifle in his hands” which “ends abruptly with the sound of a parrot in distress.” (TAC, ¶ 13.) At his subsequent deposition, Mark testified that “he was concerned the bird would damage his property and intended to use the gun to scare the bird off.” (TAC, ¶ 14.) Plaintiff was able to retrieve two of her parrots but Dread was missing. (TAC, ¶ 15.) Plaintiff believes Mark shot Dread, injuring or killing him. (TAC, ¶ 14.)
On September 12, 2023, defendants filed their answer to the TAC asserting a general denial and 19 affirmative defenses.
Between July 29, 2025, and August 1, 2025, the court held a jury trial and the jury returned a defense verdict. The jury determined that defendants did not knowingly destroy Dread or prevent plaintiff from having access to Dread, defendants did not intentionally interfere with Plaintiff’s use or possession of Dread, Anastacia did not know a conversion was committed by Mark, Mark did not know that a conversion was committed by Anastacia, Anastacia did not know that a trespass to chattels was committed by Mark, Mark did not know that a trespass to chattels was committed by Anastacia, Mark did not owe Plaintiff a duty of reasonable care as to Plaintiff’s property, and Anastacia did not know a negligent act was committed by Mark. (Verdict by Jury, Aug. 1, 2025.)
On November 10, 2025, defendants filed this motion requesting that the court award cost of proof sanctions pursuant to Code of Civil Procedure section 2033.420, or in the alternative sanctions under sections 128.5 and 128.7, in the amount of $137,297. Defendants seek fees pertaining to 24 requests for admission (RFAs) served on February 23, 2023. (Motion, p. 4, l. 13 - p. 6, l. 23.) Defendants’ attorney fee figure is based on the “reasonable and necessary attorney’s fees incurred in this action.” (Motion, p. 1, ll. 26-27.) Alternatively, defendants seek recovery of 75% of this amount, a total of $102,972.75. (Id., p. 2, ll. 7-8.) This motion is opposed.
Analysis:
(1) Cost of Proof under Code of Civil Procedure Section 2033.420
“If a party fails to admit … the truth of any matter … 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 [responding] party … to pay the reasonable expenses incurred in making that proof, including reasonable attorney’s fees.” (Code Civ. Proc., § 2033.420, subd. (a).)
“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.” (Code Civ. Proc., § 2033.420, subd. (b).)
“[C]ost-of-proof fees do not reward a party for prevailing on a claim. Rather, they are intended to encourage efficient trials. ‘The primary purpose of requests for admissions is to set at rest triable issues so that they will not have to be tried; they are aimed at expediting trial. [Citation.] The basis for imposing [cost-of-proof fees] is directly related to that purpose.... [They are] designed to reimburse reasonable expenses incurred by a party in proving the truth of a requested admission where the admission sought was ‘of substantial importance’ [citations] such that trial would have been expedited or shortened if the request had been admitted.’ ” (Gamo v. Merrell (2025) 113 Cal.App.5th 656, 667 (Gamo).)
“Unlike prevailing party fees, cost-of-proof fees do ‘not punish[ ] [a litigant] merely for pursuing a claim. The litigant must instead reimburse an opposing party’s costs in proving an issue where the litigant did not have a reasonable, good faith belief it would prevail at trial on that issue, after being expressly requested to admit the issue.’ [Citation.] [¶] … They are not granted simply because a prevailing party proved a material fact at trial that was decisive to its outcome. Rather, they ‘are awarded when the other party has no reasonable basis for not admitting the fact, not merely that the court determined a fact against them.’ [Citation.] Indeed, a party can lose at trial and still be awarded cost-of-proof fees.” (Gamo, supra, 113 Cal.App.5th at pp. 667-668.)
“In evaluating whether a ‘good reason’ exists for denying a request to admit, ‘a court may properly consider whether at the time the denial was made the party making the denial held a reasonably entertained good faith belief that the party would prevail on the issue at trial.’ [Citation.] An RFA has ‘substantial importance’ if it is ‘central to disposition of the case.’ [Citation.] [¶] The determination of whether ‘there were no good reasons for the denial,’ whether the requested admission was ‘of substantial importance,’ and the amount of expenses to be awarded, if any, are all within the sound discretion of the trial court.” (Doe v. Los Angeles County Dept. of Children & Family Services (2019) 37 Cal.App.5th 675, 690.)
The burden is on the moving party to prove the truth of this matter stated in the request for admission as well as the reasonable fees incurred in making that proof. (Code Civ. Proc., § 2033.420, subd. (a); Evid. Code, § 500.) “The party seeking to benefit from an exception listed in section 2033.420, subdivision (b) ‘bears the burden to establish the exception.’ ” (Spahn v. Richards (2021) 72 Cal.App.5th 208, 216.) “ ‘Proof’ is the establishment by evidence of a requisite degree of belief concerning a fact in the mind of the trier of fact or the court.” (Evid. Code, § 190.) The burden of proof is a preponderance of the evidence. (See Buss v. Superior Court (1997) 16 Cal.4th 35, 53; Evid. Code, § 115 [“Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence.”].)
Applying these principles, defendants attach evidence showing that plaintiff denied the 24 RFAs. (Motion, p. 4, l. 13 – p. 6, l. 23; Cyr Decl., ¶ 5, Ex. C.) However, the original RFAs were not attached to the supporting declaration or to defendants’ motion. (Cyr Decl., ¶ 5, Ex. C.) These RFAs appear to use a number of defined terms including YOU, YOUR, DREAD, SUBJECT PROPERTY, DEFENDANTS, PLAINTIFF’S PROPERTY, and INCIDENT. (Ibid.) “Expenses are recoverable only where the party requesting the admission ‘proves ... the truth of that matter.’ ” (Wagy, supra, 24 Cal.App.4th at p. 6.) The court cannot determine whether defendants have proven the truth of the matters stated in the RFAs without the original RFAs served by defendants. Defendants failed to carry their burden on this issue. The court will deny defendants’ motion on this basis.
Turning to the evidence submitted by defendants, defendants submitted the special verdict form but did not attach any trial transcripts. Defendants attach portions of a deposition transcript of plaintiff’s testimony occurring on June 24, 2024. (Cyr Decl., ¶ 6, Ex. D.) Defendant made no specific citations to this testimony in their motion but highlighted the following excerpts in the declaration: p. 27, l. 6 – p. 29, l. 11 (communications with a pet store about Dread); p. 29, l. 23 – p. 30, l. 6 (communications with an investigator about Dread); p. 124, ll. 2 – 23 (phone calls by an investigator about Dread); p. 129, l. 5 – p. 30, l. 9 (microchips and geolocation technology for tracking birds); p. 132, l. 20 – p. 133, l. 2 (no knowledge of anyone who can confirm that they saw Dread on defendants’ property); p. 135, l. 2 – p. 136, l. 11 (who heard Dread call out); p. 140, l. 13 – p. 141, l. 3 (defendants’ behavior); p. 146, l. 19 – p. 147, l. 9 (no sound of a gun in the video); p. 147, ll. 15 – 20 (no knowledge the bird heard on the video was Dread). (Cyr Decl., Ex. D.)
Defendants also attach a complaint in the matter Hilliard v. El Granero Feed & Pets, Inc., Los Angeles Superior Court case No. 21STCV35746 (LA Case) filed on September 28, 2021, and an email string entitled, “Parrots at the top of the hill,” dated January 16, 2021. (Cyr Decl., Exs. A, D.) The complaint in the LA Case and email string are attached at the end of the deposition transcript in Exhibit D, but these documents are not authenticated by the supporting declaration. (See Cyr. Decl, ¶ 6 [“Attached hereto as “Exhibit D” is a true and correct copy of relevant discovery and/or testimony under oath indicating the facts denied were in fact true.”]; Evid. Code, §§ 1400-1421.)
Turning to the RFAs, even if the court uses its best judgment to discern the meaning of the defined terms and assuming the admissibility of all evidence submitted by defendants, defendants did not to prove the truth of the matters asserted in RFA Nos. 1, 2, 16, 17, 19, 20, 22, 66, 67, 68, 72, 73, 74, 75, 80, 81, 82, 85, and 86. Each of these RFAs asks the plaintiff to admit that she had “no evidence” or “no witnesses” “that support” various aspects of her claims in this action. (Motion, p. 4, ll. 13 – p. 6, ll. 23.) Proving the truth of these RFAs as phrased is a tall task. The term “support” as used in the RFAs is much more expansive than “proof.” To prove the truth of these RFAs, defendant would need to prove that plaintiff had no witnesses or documents that could offer any circumstantial support as to these issues. The special verdict form returned by the jury made no findings as to these issues. The court cannot discern the truth of these matters from the defense verdict at trial. The deposition testimony and evidence submitted by defendants in support of this motion do not establish the truth of these RFAs. The court also noted and considered plaintiff’s declaration and her counsel’s declaration filed in opposition.
RFA Nos. 31 and 32 ask the plaintiff to admit that she did not track Dread and had no method to track whether Dread returned to her property. The special verdict form made no findings as to these issues. The testimony highlighted by defendants indicates that plaintiff’s birds were microchipped but that the microchips did not provide geolocation data. (Cyr Decl., Ex. D at p. 132, l. 20 – p. 131, l. 2.) This testimony does not prove that plaintiff did not track Dread in any manner (for example by sight or sound) or have any method to determine whether Dread had returned to her property. Defendants did not prove the truth of the matters asserted in these RFAs.
RFA Nos. 60 through 62 pertain to prior allegations made by Plaintiff about Dread.
Request for Admission No. 60 stated: “Admit that YOU previously alleged DREAD was stolen by an individual that inquired about a Blue-Throated Macaw at El Granero Pet Shop, a pet shop in Compton, California, after the INCIDENT.” (Motion, p. 5, ll. 11-14.) Request for Admission No. 61 stated: “Admit that YOU previously alleged DREAD was injured by an individual that inquired about a Blue-Throated Macaw at El Granero Pet Shop, a pet shop in Compton, California, after the INCIDENT.” (Id., p. 5, ll. 15-18.) Request for Admission No. 62 stated: “Admit that YOU previously alleged individuals other than DEFENDANTS injured DREAD prior to this action.” (Id., p. 5, ll. 19-20.)
Reviewing the complaint in the LA Case, paragraph 19 of that complaint alleges: “Plaintiff is informed and believes that Defendants substantially interfered with Plaintiff’s property by taking possession of Dread, and/or knowingly or intentionally preventing Plaintiff from having access to him.” (Cyr Decl., Ex. D.) Paragraph 30 alleges: “Plaintiff is informed and believes that a third party substantially interfered with Plaintiff’s property by taking possession of Dread, and/or knowingly or intentionally preventing Plaintiff from having access to him.” (Ibid.) Paragraph 33 alleges: “Plaintiff is informed and believes that Defendants knowingly and intentionally gave substantial assistance or encouragement to a third party to commit conversion of Dread.” (Ibid.)
Comparing RFA Nos. 60 through 62 to the allegations in the LA Case, it is not clear on the face of these documents that they are inconsistent. As noted above, the RFA responses attached by defendants do not contain definitions for any of the defined terms in the RFAs, including the terms YOU, DREAD, INCIDENT or DEFENDANTS. Without the original RFAs, defendants have not proven precisely what was requested. These matters were not addressed by the special jury form and the court cannot make this determination based on the evidence presented by defendants in support of their motion. In addition, even assuming the allegations in the LA Case are inconsistent with the responses to RFA Nos. 60-62, these allegations in the LA Case are not central to the key issues such as whether Dread was shot or injured by Mark.
As to the requested fees, defendants appear to seek the recovery of all of their attorney fees in this action, including fees that were incurred before the RFAs were served. (See Cyr Decl., Ex. E; Motion, p. 1, ll. 27-28 [defendants “move for an Order awarding reasonable and necessary attorney’s fees incurred in this action”].) However, “[t]he requested amounts must be segregated from costs and fees expended to prove other issues.” (Grace v. Mansourian (2015) 240 Cal.App.4th 523, 529.) Even if defendants had proven that one or more of the matters asserted in the RFAs was true, defendants did not prove “the reasonable expenses incurred in making that proof.” The court will deny defendants’ motion on this additional ground.
In opposition, plaintiff cited the court’s ruling on defendants’ previous motion for terminating and monetary sanctions pursuant to Code of Civil Procedure sections 128.5 and 128.7. As previously noted by the court when evaluating the prior sanctions motion, “[t]he evidence that plaintiff references in her opposition includes: (1) Three of plaintiff’s birds landed on the defendants’ property; (2) Defendants did not want the birds on their property; (3) Anastacia had threatened to use a BB gun if the birds landed on her property; (4) Mark was filmed approaching the area where Dread had landed carrying a .177 caliber rifle with a scope; (5) Mark admitted that he fired the rifle towards Dread (Note: the court is aware that Mark claimed he fired an unloaded airsoft gun towards the ground.); (6) When plaintiff went to retrieve her birds, Dread was missing while the other two birds remained; (7) Defendants were reticent to allow plaintiff to inspect their property looking for Dread; (8) Dread had never gone missing in 15 years and would not left his companion birds voluntarily; (9) Mark was noticeably missing when plaintiff arrived to collect her birds; (10) Although Mark claims to have been on a bike ride, he has provided no evidence that he was; (11) Anastacia drove up behind plaintiff when plaintiff arrived at the defendants’ property such that it appeared she had left her home prior to plaintiff’s arrival; (12) Anastacia refused to allow plaintiff to conduct a thorough inspection of the property when she went to collect her birds, or at a later time; (13) Defendants were uncooperative in plaintiff’s search for Dread; and (14) Defendants were critical of plaintiff.” (Minute Order, July 14, 2025.)
The court denied defendants’ previous motion. The court ruled that, “[w]ithout commenting on the potential strength of the evidence, the court does find that the existence of some of the cited circumstantial evidence overcomes defendants’ motion. It cannot be said that any reasonable attorney would find that the action is clearly frivolous, legally unreasonable or without legal foundation. Further, defendants have failed to make a showing of bad faith.” (Minute Order, July 14, 2025.)
The jury verdict returned on August 1, 2025, does not change the court’s position on the issue of bad faith. The court determines that plaintiff had a reasonable ground to believe that that she would prevail on the matters denied in her responses to the RFAs that were central to the determination of whether Mark unlawfully shot or injured Dread. The court will deny defendants’ motion on this additional ground.
(2) Sanctions under Code of Civil Procedure Sections 128.5 and 128.7
Motions under Code of Civil Procedure sections 128.5 and 128.7 “shall be made separately from other motions.” (Code Civ. Proc., §§ 128.5, subd. (f)(1)(A), 128.7, subd. (c)(1).) Here, defendants brought a combined motion under Code of Civil Procedure sections 128.5, 128.7, and 2033.420. (Motion, p. 2, ll. 2-3 [“This Motion is made pursuant to Code of Civil Procedure sections 2033.420, 128.5, 128.7 ….”] The court will deny defendants’ motion for this reason.
Defendants motion was brought “due to Plaintiff’s unreasonable failure to admit the truth of various matters, complete lack of evidence, and the associated costs incurred by The Campbells.” (Motion p. 1, ll. 8-10.) Code of Civil Procedure sections 128.5 and 128.7 “shall not apply to disclosures and discovery requests, responses, objections, and motions.” (Code Civ. Proc., §§ 128.5, subd. (d), 128.7, subd. (g).) The court will deny defendants’ motion for this additional reason.
Defendants did not establish compliance with the 21-day safe harbor provision under Code of Civil Procedure sections 128.5 and 128.7. “If the alleged action or tactic is the making or opposing of a written motion or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading that can be withdrawn or appropriately corrected, a notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court, unless 21 days after service of the motion or any other period as the court may prescribe, the challenged action or tactic is not withdrawn or appropriately corrected.” (Code Civ. Proc., § 128.5, subd. (f)(1)(B).) “Notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court unless, within 21 days after service of the motion, or any other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.” (Code Civ. Proc., § 128.7, subd. (c)(1).) There is no reference to compliance with the 21-day safe harbor provisions in defendants’ motion or in the supporting declaration. The court will deny defendants’ motion for this additional reason.
Moreover, for the reasons as stated above pertaining to cost of proof under Code of Civil Procedure section 2033.420, defendants have not established that plaintiff’s denials to the RFAs were made in bad faith, frivolous, or solely intended to cause unnecessary delay. The court will deny defendants’ motion on this additional basis.