Mediation Message No. 106



Before Gonsalves v. Li (California Court of Appeal, Jan. 13, 2015) no. A140284, 2015 Cal. App. LEXIS 26, it was unclear whether parties could be examined about their denials to requests for admission (RFAs). Gonsalves v. Li holds that this practice constitutes error.

In Gonsalves v. Li, Li crashed a new BMW during a test drive while Gonsalves, a salesperson for the dealership, was a passenger in the vehicle. Gonsalves sued Li, alleging that he suffered significant injuries because of the accident. During the discovery phase of the case, Gonsalves asked Li to admit that he was driving too fast at the time of the accident. Li replied, “Responding party has a lack of information and knowledge to admit this request for admissions. A reasonable inquiry concerning this matter has been made, and the information known or readily obtainable is insufficient to enable responding party to admit this matter.” The trial court allowed Gonsalves’s attorney to examine Li about the above negative response and similar ones. Li responded that he stood “by my admissions that I signed.” In closing argument, plaintiff’s counsel urged the jury to consider Li’s failure, in response to the RFAs, to admit that his pressure on the accelerator was a substantial factor in causing the accident and as evidence of his failure to take responsibility for Gonsalves’s injuries. The jury found Li negligent and awarded Gonsalves $118,642.86 for past medical expenses, $90,000 in future medical expenses and $1 million in noneconomic damages.

The appellate court rejected Gonsalves’s argument that, pursuant to Evidence Code section 780, subd. (j), Li’s responses were admissible to impeach his credibility by showing “[h]is attitude toward the action in which he testifies.” The court then held that “denials of RFA’s are not admissible evidence in an ordinary case, i.e., a case where a party’s litigation conduct is not directly in issue”, set aside the verdict and remanded the matter for a new trial because of this error and other prejudicial conduct by Gonsalves’s attorney.

MDM’s observation: When a party denies an RFA, the remedy, pursuant to C.C.P. sec. 2033.420, is to prove the truth of the matter and then “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.”

Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067
(310) 201-0010

Copyright Michael D. Marcus, January 2015

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