By Gary Nadler
Requests for admissions under Code of Civil Procedure Section 2033.010 are a powerful litigation tool. A case can be made, opposition overcome, or a loss resurrected through the effective use of requests to admit. However, a failure to propound proper requests, to pay appropriate attention to providing timely responses, and following through to obtain appropriate responses renders this discovery device completely ineffective, and may ultimately be fatal to the case.
The purpose of this article and self-assessment test is to familiarize courts and litigants with requests for admissions. Readers will learn about the scope of such requests, responses to requests, the effect of failing to admit without good reason, and the showing needed for recovery of costs and fees based on the requests.
CCP Section 2033.010 provides "Any party may obtain discovery ... by a written request that any other party to the action admit the genuineness of specified documents, or the truth of specified matters of fact, opinion relating to fact, or application of law to fact." However, requests to admit are not "true" discovery. Requests for admissions are primarily aimed at setting to rest a triable issue so that it will not have to be tried. Any matter admitted in response to a request for admission is conclusively established against the party making the admission, unless the court permits a withdrawal or amendment of the admission under CCP Section 2033.300. Wilcox v. Birtwhistle, 21 Cal. 4th 973 (1999). "[S]uch requests, in a most definite manner, are aimed at expediting the trial." Cembrook v. Superior Court, 56 Cal. 2d 423 (1961). While other discovery devices are meant to obtain proof for use at trial, requests to admit seek to eliminate proof at trial. St. Mary v. Superior Court, 223 Cal. App. 4th 762 (2014).
Scope of Requests
The scope of requests to admit is quite broad. "[T]he fact that the request is for the admission of a controversial matter, or one involving complex facts, or calls for an opinion, is of no moment." Grace v. Mansourian, 240 Cal. App. 4th 523 (2015). The request may seek a legal conclusion, and may seek an admission that a party was negligent or that such negligence was a legal cause of the injuries. CCP Section 2033.010; Garcia v. Hyster Co., 28 Cal. App. 4th 724 (1994). A request for admission may properly be used to establish opinions relating to fact or the application of law to fact. Burke v. Superior Court, 71 Cal. 2d 276 (1969); Chodos v. Superior Court, 215 Cal. App. 2d 318 (1963).
Requests for admissions are not limited to matters within personal knowledge of the responding party, and a responding party has a duty to make a reasonable investigation of the facts before answering items which do not fall within his personal knowledge. It is not enough to fail to investigate and then deny for lack of information in reliance on the lack of investigation. Wimberly v. Derby Cycle Corp., 56 Cal. App. 4th 618 (1997).
Responding to Request to Admit
A failure to timely respond results in a waiver of all objections to the requests, including claims of privilege or work product protection. CCP Section 2033.280(a). However, the requests are not automatically deemed admitted. In order for the matters to be deemed admitted, if the responding party fails to serve any timely responses, the propounding party must take affirmative steps by filing a motion for an order that the requests be deemed admitted. Unless the party receiving the requests served a proposed response in substantial compliance before the hearing on the motion, the court must order that the requests are deemed admitted. CCP Section 2033.280. Thus, if the receiving party serves substantially complying responses prior to the hearing, the court has no discretion but to deny the motion and to award sanctions if requested. On the other hand, if no such responses were served before the hearing, the court has no discretion but to grant the "deemed admitted" motion. CCP Section 2033.280; Demyer v. Costa Mesa Mobile Home Estates, 36 Cal. App. 4th 393 (1995).
With respect to whether responses are in "substantial compliance," with statutory requirements, substance prevails over form. Actual compliance with every statutory requirement is not required; rather, the response must achieve the statutory purpose or objective. Costa v. Superior Court, 37 Cal. 4th 986 (2006). St. Mary held a court must evaluate the proposed responses "in toto." The entire response, and not segregated responses, must be qualitatively evaluated to determine whether the response substantially complies with the statutory requirements applicable. The court may not grant the motion in part, and deny it in part. In St. Mary, verified responses to a majority of the requests in the proposed response were code-compliant, meaningful and substantive; the Court of Appeal thus held the proposed responses were "facially a good-faith effort to respond" to the requests. Note that unverified responses do not substantially comply with the law. Allen-Pacific Ltd. v. Superior Court, 57 Cal. App. 4th 1546 (1997).
Each answer in a response must be as complete and straightforward as the information reasonably available to the responding party permits. The responding party must admit or deny the request, or portions, true, or admit with qualifications, or specify any matter as to which the responding party lacks sufficient information or knowledge. If a responding party gives lack of information or knowledge as a reason for a failure to admit all or part of a request for admission, the response must state that a reasonable inquiry concerning the matter in the particular request has been made, and that the information known or readily obtainable is insufficient to enable that party to admit the matter. CCP Section 2033.220.
Once a matter is admitted, a party may move to withdraw or amend that admission. CCP Section 2033.300. This is permitted only if it is determined 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. Further, the court may impose conditions on the granting of the motion, including ordering that the party who obtained the admission be permitted to pursue additional discovery related to the matter involved in the withdrawn or amended admission, or ordering that the costs of any additional discovery be borne in whole or in part by the party withdrawing or amending the admission. CCP Section 2033.300. There is a policy in favor of trial on the merits, and that any doubts must be resolved in favor of the moving party. New Albertsons, Inc. v. Superior Court, 168 Cal. App. 4th 1403 (2008).
Chodos held that a party to an action may not necessarily avoid responding to a request for admission on the ground that the request calls for an expert opinion and the party does not know the answer. "[S]ince requests for admissions are not limited to matters within personal knowledge of the responding party, that party has a duty to make a reasonable investigation of the facts before answering items which do not fall within his personal knowledge." Smith v. Circle P Ranch Co., 87 Cal. App. 3d 267 (1978).
The requesting party may move to compel a further response where responses have been timely filed, but are considered deficient by the requesting party. Such a motion must be made within 45 days of service of the verified responses (unless otherwise agreed in writing). If the motion is not timely served, the requesting party waives any right to compel further response to the requests for admission. CCP Section 2033.290(c).
Effect of a Failure to Admit Without Good Cause
When a request to admit is denied, if the propounding party proves the truth of those facts at trial, he or she may seek an award of the reasonable costs and attorney fees incurred in proving those facts. CCP Section 2033.420(a). Sanctions "shall" be awarded unless the court finds any of the following: (1) an objection to the request was sustained or a response to it was waived; (2) the admission sought was of no substantial importance; (3) the party failing to make the admission had reasonable grounds to believe that that the party would prevail on the matter; or (4) there was some other good reason for the failure to admit. CCP Section 2033.420(b); Laabs v. City of Victorville, 163 Cal. App. 4th 1242 (2008).
A determination of whether a party had reasonable ground to believe that that it would prevail on the matter is evaluated as of the time the response is made. Laabs found a court must determine whether the party making the denial "held a reasonably entertained good faith belief that the party would prevail on the issue at trial."
In Wimberly, the appellate court ruled that at the time the defendant denied the requests, it had no reasonable basis to believe it could prevail on those issues at trial; it failed to designate its own expert and should have known it would be unable to use certain deposition testimony of the plaintiff's expert. Since the defendant did not produce evidence to support its denial, there was an insufficient showing that the denial was reasonable. According to Grace, in Brooks v. American Broadcasting Co., 179 Cal. App. 3d 500 (1986), "in a vehicle accident case, the police report determined the plaintiff's truck had been over the centerline. The trial court awarded costs of proof after finding the plaintiff unreasonably denied he was over the centerline. The court relied on the fact the plaintiff's lawyer did not speak to the officers who completed the report because he 'assumed' the report was ambiguous. ... Moreover, plaintiff did not contest that issue during trial."
In Grace, the defendant testified at a deposition that he believed that he entered the intersection on a yellow light, and on that basis, denied the request to admit that his conduct was negligent, and that it was the actual and legal cause of the accident. The court found that this belief was insufficient to justify the denial, due to the existence of contrary evidence. The court noted plaintiff's testimony that defendant ran the red light; the police report finding defendant at fault; plaintiff's accident reconstruction expert finding defendant at fault, and the absence of a defense accident reconstruction expert along with defendant's failure to depose plaintiff's expert. The question was not whether defendant reasonably believed he did not run the red light, but rather whether he reasonably believed he would prevail on that issue at trial.
In seeking costs and fees incurred in proving a denied issue or fact, the requested amounts must be segregated from costs and fees expended to prove other issues. See Wimberly; Brooks. Fees and costs cannot be awarded if the parties stipulated to facts, even if the responding party had previously denied them. Stull v. Sparrow, 92 Cal. App. 4th 860 (2001); Wagy v. Brown, 24 Cal. App. 4th 1 (1994). Grace held that fees and costs are not awarded in such a situation because the purpose of requests for admissions is to expedite a trial, and a stipulation achieves that goal.