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Fireman's Fund Insurance Co. v. Whirlpool Corp.2/15/2002
(Id. at pp. 865-866.)
The reviewing court also noted that " ecause proof was unnecessary and the purposes of section 2033 were served, the trial court did not abuse its discretion in determining that [plaintiff] was not entitled to an order of costs and fees under section 2033, subdivision (o) on the ground that the issue had not been proved."
Unlike the situation in either Wagy or Stull, the facts in question here were actually "proved" by Insurer. As noted above, a stipulation, presented to a jury, is a form of proof. (Wagy, supra, 24 Cal.App.4th at p. 6.) Thus, the facts here are more like those in Wimberly, supra, in which the plaintiff did have to prove the issue at trial. And, in any event, only some of the relevant facts were proved by the stipulation in the joint pretrial statement; many others were actually proved by the presentation of evidence to the jury. Therefore, here, as in Wimberly, the trial court did not abuse its discretion by concluding that, one way or another, Insurer did "prove" the various facts which it had asked Hose Supplier to admit. Therefore, the order granting Insurer its reasonable expenses under section 2033, subdivision (o), should be affirmed.
DISPOSITION
The judgment in B145197, and post-judgment order in B149303, awarding Fireman's Fund Insurance Company its attorney fees against Dayco, are affirmed. Whirlpool Corporation, Omega Products, Inc., and Fireman's Fund Insurance Company all are awarded their costs on appeal against Dayco Products, Inc.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
We concur:
KLEIN, P. J.
KITCHING, J.
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