Mediation Message No. 125



Having discussed in Mediation Message no. 123 (June 2016) the monetary consequence of failing to admit certain facts prior to trial despite their obvious truth, it’s timely to look at some of the other significant procedural requirements concerning requests for admission (RFAs).

The policy behind RFAs. Unlike the other types of discovery, which are designed to prepare for trial, an RFA, in contrast, is used to expedite the trial process (Cembrook v. Superior Court (1961) 56 Cal.2d 423, 429); Grace v. Mansourian (2015) 240 Cal.App.4th 523, 528.)

The RFA’s scope. The scope of an RFA is broad. In a personal injury action, it may include requests for admissions regarding negligence, causation and damages. (Id.) It may ask for an admission to a legal conclusion. (Burke v. Superior Court (1969) 71 Cal.2d 276, 282 (proper to request that a party admit that a levy of attachment was regular and valid on its face; that a motion to dissolve the attachment would have been unsuccessful). It may ask for an admission of a controversial matter, one involving complex facts or for an opinion. (Cembrook v. Superior Court, supra, 56 Cal.2d at p. 429.)

Responding party’s duty to investigate. Responding parties have a duty to make a reasonable investigation of the facts which do not come within their personal knowledge. (Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618, 634; Smith v. Circle P Ranch (1978) 87 Cal.App.3d 267, 273.)

Responses to RFAs. Each answer in a response to requests for admission “shall (1) Admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party. (2) Deny so much of the matter involved in the request as is untrue. (3) Specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge.” (C.C.P. sec. 2033.220, subd. (b).)

Withdrawal or amendment of an admission to an RFA. A party may withdraw or amend an admission in response to an RFA only on leave of court after notice to all parties. And, the court may permit such withdrawal or amendment only “if it determines that the admission was the result of mistake, inadvertence, or excusable neglect, and that the party who obtained the admission will not be substantially prejudiced in maintaining that party’s action or defense on the merits.” If the motion is granted, the court can impose conditions that are “just,” including that the party who obtained the admission be permitted to pursue additional discovery related to the matter involved in the withdrawn or amended admission and that the costs of any additional discovery be borne in whole or part by the party seeking amendment or withdrawal.  (C.C.P. sec. 2033.300.) Permitting the withdrawal or amendment of deemed admissions is consonant with the legislative desire to encourage actual responses. (Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 980.)

Objections to RFAs. The specific ground for the objection shall be set forth clearly in the response. Objections based on privilege or work-product shall be clearly stated. (C.C.P. sec. 2033.230, subd. (b).) An objection that the responding party had no “independent information” or that the RFA called for an opinion is not tenable. (Chodos v. Superior Court (1963) 215 Cal.App.2d 318, 323.)

Motion for further responses to RFAs. Within no more than 45 days after services of the verified responses to RFAs, the requesting party may move for a further response if an answer is evasive or incomplete or is without merit or too general. (C.C.P. sec. 2033.290, subd (a)(1) and (2).)

Consequence of not responding timely. A party waives all objections to the RFAs, including claims of privilege or work-product, for failing to respond timely. (C.C.P. sec. 2033.280, subd. (a).)

Relief from the failure to timely respond. On motion, the court may relieve a party from waiver if it is determined that the party subsequently served a response that is in substantial compliance with the Code and the failure to serve a timely response was the result of mistake, inadvertence or excusable neglect. (C.C.P. sec. 2033.280, subd. (a)(1) and (2).)

When a party has not responded to RFAs, the requesting party must move to have the RFAs deemed admitted. RFAs are not admissible just because they have been denied. Instead, when a party has failed to serve a timely response, “The requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, …” (C.C.P. sec. 2033.280, subd. (b) [“deemed admitted motion”]; St. Mary’s v. Superior Court (2014) 223 Cal.App.4th 762, 775-776.)

Defeating a “deemed admitted motion.” The “deemed admitted motion” shall be denied if the court finds that the responding party served, before the hearing on the motion, a proposed response to the RFAs that is substantially code compliant. (C.C.P. sec 2033.280, subd. (c); St. Mary’s v. Superior Court, supra, 224 Cal.App.4th at pp. 776, 778.)

Deemed admitted matters are conclusively established and are not subject to being contested through contradictory evidence. (Murillo v. Superior Court (2006) 143 Cal.App.4th 730, 736.)

Monetary sanctions for non-compliance with RFAs. Where a “deemed admitted” motion has been granted, the court must impose a monetary sanction on the party or attorney, or both, whose failure to serve a timely response to the RFAs necessitated the motion. (C.C.P. sec. 2033.280, subd. (c).)

Monetary sanctions where RFAs were denied and thereafter proved true at trial. Denial of an RFA can lead to an award of costs and attorney’s fees incurred by the propounding party in proving the truth of the denied facts at trial. (C.C.P. sec 2033.420, subd. (a).) The court is required to award those costs and fees unless it finds the party who denied the requests “had reasonable ground to believe [he or she] would prevail on the matter” or “[t]here was other good reason for the failure to admit.” (Sec. 2033.420, subd. (b)(3) and (4); Grace v. Mansourian, supra, 240 Cal.App.4th at p. 529; Labbs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1277 [in denying motion for fees, court concluded plaintiff reasonably believed she would prevail on the issues at trial].)

Judge Michael D. Marcus (Ret.)

ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067
(310) 201-0100

Copyright Michael D. Marcus, September 2016

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