Posts Tagged ‘requests for admission’

Mediation Message No. 125

MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 125

RFAs – IMPORTANT PROCEDURAL REQUIREMENTS

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

Mediation Message No. 123

MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 123

DENIALS OF RFAs AND THEIR CONSEQUENCES

Denial of a request for admission (RFA) can lead to an award of costs and attorney’s fees incurred by the propounding party in proving those facts if that party proves the truth of the 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), (4).) Grace v. Mansourian (2015) 240 Cal.App.4th 523 discusses the consequences of failing to admit certain facts prior to trial despite their obvious truth.

Defendant Mansourian, while driving, hit plaintiff’s car in an intersection. Defendant told a traffic collision investigator that when he entered the intersection the light was yellow and he believed he could make it through before the light turned red. An eyewitness told the investigator defendant ran the red light. Defendant and his mother denied plaintiffs’ RFAs that Mansourian failed to stop at the red light; that failure was negligent and was the actual and legal cause of the accident; that, as a result of the accident, plaintiff was injured and needed medical treatment and the plaintiff was not negligent. Defendants did not offer any expert testimony as to liability nor any evidence on that issue other than defendant’s testimony. Defendant testified that as he was approaching the intersection the light was green. As he got closer to the intersection the light turned yellow. Plaintiffs introduced testimony from defendant’s deposition that he originally stated he was looking at the road. He later amended his testimony to say he was focused on both the road and the signal.

Defendants’ medical expert agreed plaintiff fractured his ankle in two places as a result of the accident and the ankle surgery was necessary but also testified, contrary to plaintiff’s doctor, that plaintiff would have no future problems with his ankle and would not require additional surgery in the future. The defense doctor also agreed plaintiff had suffered a strain or sprain of his neck and back, but disagreed any neck and back pain were a result of the accident, did not believe plaintiff’s back surgery was necessitated by the accident and opined the charges for plaintiff’s neck and back surgery were too high.

The jury found defendant was negligent, awarding plaintiff just over $410,000, including approximately $147,000 for medical expenses, not quite $9,000 for lost earnings, and $255,000 for pain and suffering. It also awarded his wife $30,000 for loss of consortium. Plaintiffs then filed a motion seeking to recover costs of proof of just over $29,000 and attorney’s fees of almost $170,000 under section 2033.420 based on the defendants’ failure to admit certain requests for admissions. The trial court denied the motion, concluding defendants did have a reasonable basis to deny the requests including that the defendant driver reasonably believed he could prevail based on his memory that he did not run a red light.

The appellate court reversed the ruling for an abuse of discretion, concluding that the defendants had no reasonable basis to deny liability for plaintiff’s ankle injury and its treatment. “The question is not whether defendant reasonably believed he did not run the red light but whether he reasonably believed he would prevail on that issue at trial. In light of the substantial evidence defendant ran the red light, it was not reasonable for him to believe he would.” (Id. at p. 529.) “To justify denial of a request, a party must have a ‘reasonable ground’ to believe he would prevail on the issue. … That means more than a hope or a roll of the dice. In light of the substantial evidence defendant was at fault, plus defendants’ apparent understanding of the weakness of their position, as evidenced in their opening statement, defendants’ sole reliance on defendant (driver’s) perception he entered the intersection on a yellow light was not a reasonable basis to believe they would prevail.” (Id. at p. 532.) However, the appellate court held on the issue of damages, because defendants had stipulated to some of the medical bills and plaintiff’s loss of earnings and had presented their own medical expert on the necessity and reasonableness of the plaintiff’s medical treatment and costs, that plaintiffs were not entitled to recover their costs and fees in proving these issues. (Id. at p. 533.)

The lesson of Grace v. Mansourian is that a party, if it denies RFAs, must be prepared to present enough evidence at trial on the facts denied to be able to argue credibly to the court, in opposition to a subsequent motion for costs and fees, that he or she believed they would prevail on the facts at issue. Mansourian, who presented only his own rebutted testimony on liability, could not make that argument.

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, June 2016

Mediation Message No. 106

MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 106

NEGATIVE RESPONSES TO REQUESTS FOR ADMISSION ARE NOT ADMISSIBLE

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