Barnett

This appeal presents the question whether sanctions pursuant to section 2033, subdivision (

Henry Barnett appeals from a postjudgment order pursuant to section 2033, subdivision (o) of the Code of Civil Procedure, directing him to pay reasonable expenses incurred by defendant Penske Truck Leasing Co., L.P. (Penske),. in the amount of $5,362.83. Appellant contends that a section 2033, subdivision (o) award may not be made following proof made in the context of a motion for summary judgment; that Penske did not prove the facts in issue; and that the trial court abused its discretion in awarding expenses. We affirm.

This action arises from an industrial accident in which appellant suffered personal injury. At the time of the accident, appellant was making a milk delivery, operating a milk truck subleased to his employer, Santee Dairies, from Penske. Appellant was struck on the head by one or more milk crates which fell from the truck.

The complaint alleged both negligence and products liability counts against Penske. It alleged that the side lift gate…