A motion to compel answers to requests for admissions in the absence of a response may seem to be a wasted motion when you have the ability to bring a motion to have matters deemed admitted.   Yet, there are benefits in choosing this motion.  Bringing a motion to have matters deemed admitted throws down the gauntlet in the discovery process.  It is a “gotcha” motion. It also has legal malpractice overtones to it because someone screwed up by not getting the answers in on time and the ramifications for their client are harsh.  By bringing a Motion to Compel Answers to Requests for Admissions the propounding party gets the answers they want, keeps peace during the litigation and prevents the discovery process from escalating to an all out war.   However, this is a more lengthy process to get “substantially compliant” answers or evidence sanctions, so I don’t recommend it.   

Motion for Admissions be Deemed Admitted

This motion is quick and dirty.  If you have not received responses to your Requests for Admissions, then you can file the motion.  You don’t have to meet and confer.  There are no time limitations in bringing the motion.  And, most importantly, on the day of the hearing you either have (1) your requests for Admissions Deemed Admitted or (2) “substantially compliant” responses and sanctions in your pocket.   Unlike the other discovery statutes dealing with the failure to respond, C.C.P. §2030.280 (pdf)   has teeth!  It states:       

If a party to whom requests for admission are directed fails to serve a timely response, the following rules apply:

(a) The party to whom the requests for admission are directed waives any objection to the requests, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). The court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied:

(1) The party has subsequently served a response that is in substantial compliance with Sections 2033.210 (pdf), 2033.220 (pdf), and 2033.230 (pdf).
(2) The party's failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.

In other words, the responding party has to give you the “substantially compliant” responses before the hearing as well as a declaration that the attorney and the attorney needs to fall on the sword and admit that it was the result of his “mistake, inadvertence or excusable neglect.” to defeat the motion.

It also states:

(b) 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, as well as for a monetary sanction under Chapter 7 (commencing with Section 2023.010 (pdf)).

(c) The court shall make [an] order [that the genuineness of any documents and the trust of any matters specified in the requests be deemed admitted], unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220. It is MANDATORY that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion. [emphasis added]

In essence, the statute is saying that “substantially compliant” responses served prior to the hearing defeats a motion to have matters deemed admitted, and that it is MANDATORY that a monetary sanction be imposed against the responding party.  This is the only place in the Discovery Act that imposes MANDATORY sanctions.  However, no sanctions can be imposed for delay in responding to Requests for Admissions if answers were provided prior to the filing of the motion. 

Remember:  A “deemed admitted” order establishes by judicial fiat, that a nonresponding party has responded to the requests by admitting the truth of all matters contained there.” Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2010), ¶8:1375.1 citing Wilcox v. Birtwhistle (1999) 21 C4th 973 (pdf), 979. 

Motion to Compel Further Responses

The procedural requirements for a Motion to Compel Further Responses is the same as for the other discovery devices.  However, there is one additional thing you need to be aware of – YOU NEED TO FILE THIS MOTION IF YOU WANT COST OF PROOF SANCTIONS!  See Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2010), ¶8:1378; CEB, California Civil Discovery Practice (4th ed. 2010) §9:87 and Wimberly v. Derby Cycle Corp. (1997) 56 Cal. App. 4th 618 (pdf) , 633.    You need to bring this motion if any of the following are in the responses:

• Garbage objections
• Evasive responses
• Partial or qualified admissions
• Responding party states that they lack sufficient information to admit or deny
• Admitting part and failing to admit or deny the remainder of the request
• Denying part failing to admit or deny the remainder of the request

Another aspect to this motion is that you can’t compel a party to admit even if they made the same admission in a deposition or in interrogatories.  In the case of Hoguin v. Sup. Ct. (1972) 22 CA 3d 812 (pdf)  at page 815 the Second District Court of Appeal stated “We do not see, however, how any court can force a litigant to admit any particular fact if he is willing to risk a perjury prosecution or financial sanctions”

Good luck on your motions!!

Next: Responding to the Motions

Attorneys easily spew out the objection “the information you are seeking is not relevant to the subject matter of the litigation” as easily as they say “Good morning.”  If you are the propounding party your reaction is probably to be to yell out “It is too relevant!” because it doesn’t even appear that the responding party actually thought it through before spewing out the objection.   But what exactly is relevancy?  It seems to be a nebulous term that invokes images of catching clouds with your hands or like Supreme Court Justice Potter Stewart’s definition of pornography “I know it when I see it”?

Any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.             

However, this definition isn’t exactly helpful either.  Unfortunately, there is no bright line test to determine what is relevant.  Instead you must rely on numerous cases that bounce you from flipper to flipper like a pinball to get a sense as to what relevancy means for Discovery. 

The overriding philosophy of the Discovery Act is that discovery should be liberally construed in order to take the “game” element out of trial preparation by enabling the parties to obtain evidence necessary to evaluate and resolve their dispute before a trial is necessary. Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2010) ¶ 8:1, citing Greyhound Corp. v. Superior Court (1961) 56 C2d 355 (pdf) at 391.  Any doubt is generally resolved in favor of permitting discovery, particularly where the precise issues in the case are not yet clearly established. Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2010) ¶ 8:71 citing Colonial Life & Accident Insurance Co. v. Superior Court (1982) 31 C3d 785,790 

“Relevant to the subject matter” is broader than relevancy to the issues which determines admissibility of evidence at trial. Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2010) ¶8:66 citing Bridgestone-Firestone Inc. v. Sup. Ct. (1992) 7 CA4th 1384 (pdf),1392  In fact, admissibility at trial is not the test.  See Davies v. Superior Court (1984) 36 C3d 291 (pdf),301.  You may discover heresay (Smith v. Superior Court (1961) 189 CA2d 6 (pdf),11 or inadmissible opinions and conclusions (Greyhound Corp. v. Superior Court, Supra at 391).   You may also discover irrelevant matters so long as their revelation may lead to the discovery of admissible evidence. Dodge, Warren & Peters Insurance Services, Inc. v. Riley (2003) 105 CA4th 1414 (pdf).  Remember that you are not limited to the pleadings as the pleadings can always be amended when you discover new facts or causes of action. Anti-Defamation League of B’nai B’rith v. Superior Court (1998) 67 CA4th 1072 (pdf).  The phrase “subject matter involved in the pending action has been defined to include not only the acts that constitute the cause of action, but also circumstances and physical facts which the action arises, including the property, contract, or other things in dispute.   See CEB California Civil Discovery Practice (2010) 4^th Ed 1:37 citing Darbee v. Superior Court (1962) 208 CA 2d 680 (pdf),688.  However, Weil and Brown said it best: “the scope of permissible discovery is one of reason, logic and common sense.”See Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2010) ¶ 8:67 

Hint: If you can articulate why you think this information might lead to the discovery of admissible evidence then you should be able to discover it. 

Look at the Separate Statement of Items in Dispute (pdf) and determine whether or not you have any garbage objections.  If you do, offer to respond to those interrogatories, requests for admissions and/or requests for productions of documents by a date no later than when your opposition is due.

Claims of privileges must be protected by the attorney, but remember that they are generally narrowly construed.  The work product doctrine and the right of privacy are another story.  These objections are not privileges and can be overruled--except for absolute work product--if there is a showing that the discovery is necessary for a fair resolution of the lawsuit.  See Moskowitz v. Superior Court (1982) 137 C.A. 3d 313 (pdf), 316.  Also, the California Supreme Court is reviewing the scope of the work product doctrine in the case of  Coito v. Superior Court (2010)182 Cal. App. 4th 758(pdf).   Consider negotiating a protective order  with opposing counsel as a court most likely would grant one in the cases involving privilege,  work product doctrine or the right of privacy.

If all else fails, prepare your opposition.  Follow the same advice given in the previous blog “What Your Discovery Motion Should Look Like.”  However, one additional piece of advice–though the code does not require it, you should prepare your own Separate Statement of Items in Dispute (pdf). This document is GOLDEN because this will become the first document the court reviews in deciding the motion as it will have all the information the court needs in this one document.  Your Separate Statement of Items in Dispute (pdf) headings should look like this:

Form Interrogatory #12.1:     State the request or interrogatory verbatim.

Response:   State your response verbatim.

Supplemental Response (provide dates):     State any supplemental response verbatim.

Why There Should Be a Further Response:     State moving papers’ Separate Statement of Items in Dispute (pdf) arguments verbatim.

Why There Should Not be a Further Response:   Do not use conclusory statements. You need to be very specific in the law and the applicability of the law to your case if you are not responding to the discovery on claims of privilege, work product and/or privacy.   If you are arguing that your objections are not garbage objections, and then explain in detail why.

The final piece is your declaration.  Again, the same advice applies as what was given in the previous blog “What Your Discovery Motion Should Look Like.”    However, if the moving papers are requesting sanctions then you must address this full on.  Describe how you “acted with substantial justification” in objecting to the discovery and opposing the motion.  Detail your entire meet and confer efforts (i.e., explained the problems with the interrogatory/request, offered to respond to the discovery if everyone could agree to a protective order, etc.)  Don’t forget to request sanctions yourself for all the time you have spent in trying to come to a resolution and in opposing the motion.

With the courts’ having budgetary problems and staff shortages, it is in your best interests to make it real clear to the court (1) what has happened; (2) what you want the court to do; and (3)  why you are entitled to the discovery and sanctions in a succinct fashion.  

Yet, you still may be unsure as to what the meat and potatoes of the motion should look like.   After two years in the law and motion department in Alameda County Superior Court and sixteen years as a private Discovery Referee, I can tell you what I like and you can take whatever pearls and nuggets you find from there.                                            

Meet and Confer Letter:  

1. This is a very important document.  It sets the tone of your dispute with opposing counsel so don’t be hostile.  Remember this letter is going to be an exhibit to your motion and could make or break your request for sanctions if the court finds that you have not been professional.
2. List every interrogatory, request and/or deposition question separately and explain why the objections are garbage and why you are entitled to discover the information. You can later take your arguments in this letter and drop it into your Separate Statement of Items in Dispute (pdf)saving you much needed time. 

 Notice:

1. The Notice is not wasted space.  The notice is to tell the court and opposing party not only the name, date, time and location of the motion, but the “nature of the order sought” as well.  So make sure you state the exact remedy you’re seeking in detail.  Also, make sure to list the nature and tile of all documents to be attached.
2.  If you are seeking sanctions it must be in the Notice.
3. List the nature and title of all documents that will be attached (i.e., Memorandum of Points and authorities, declarations, etc.)  
4. Make sure you comply with CRC 3.1110 (pdf).

 Points and Authorities

1. Give a good explanation of the facts of the case.  The relevant scope of your discovery depends on these facts.  Don’t assume the court remembers your case as they handle anywhere from 75 to 100 cases a week.
2. Provide a procedural history of the discovery motion in a time line laid out like the one below:  
   • 6/1/10 Served interrogatories via mail (Exhibit A)
   • 6/28/10 Counsel asked for an extension via telephone call (Declaration)
   • 7/30/10 Received responses full of objections (Exhibit B)
   • 8/5/10 Meet and confer letter sent (Exhibit C)
   • 8/25/10 Response to meet and confer letter (Exhibit D)
3. State your arguments why you are entitled to your discovery.  Categorize your arguments (i.e., “Special Interrogatories #1, 7, 15 are asking for information regarding . . .”)  Apply the facts and the law accurately.  Point out the obligation to respond in good faith.  Point out the garbage objections.  Point out that the failure to provide proper responses has delayed your case. If the motion requires a Separate Statement of Items in Dispute (pdf)as required by CRC 3.1345 (pdf), then make specific arguments to the specific interrogatories, requests or deposition questions in that document.  
4. State your request for sanctions in detail.
5. Detail the exact relief you are requesting: (i.e., “Plaintiff to serve verified responses to interrogatories 1, 2, 3, 4 by 11/1/2010 and attorneys’ fees in the amount of $2200 and costs in the amount of $40.”) 
6. Make sure you comply with CRC 3.1113 (pdf). 

 Separate Statement of Items in Dispute

1. This is the most important document of your motion and the first document that a court will rely on.  Do your real argument here.  Be detailed in the law as to why the objections are garbage.  Apply the facts of your case to show why the information you are seeking is discoverable. 
2. Make sure you comply with CRC 3.1345 (pdf)

Declaration:

1. Authenticate all your exhibits. 
2. Describe your meet and confer with opposing counsel.
3. If there is a request for sanctions, state your hourly rate.  Outline in detail the time spent on the motion and any future time you anticipate spending.  Calculate the attorneys’ fees and add the costs.

 Proposed Order:

1. Have the order state which interrogatory, request and/or deposition question have been granted and the date line as to when that verified response is to be served or the deposition needs to take place by  (i.e., “Verified answers to Special Interrogatories, Set #1, #1, 2, 5, 7, 13 are to be served no later than ____.”).  This allows the court to strike the numbered interrogatory, request and/or deposition question that has been denied and to put in their own compliance date. 
2. Do the same thing for sanctions.  List the award of attorneys’ fees and the award for costs.  State who the award is against by name. 

 Other Helpful Hints:

1. Do not go over the 15 page limit without obtaining a court order.  CRC 3.1113 (pdf)(e)
2. Do not use smaller fonts. CRC 2.104 (pdf) and CRC 2.105 (pdf)
3. Though CRC 2.08 (pdf) allows for 1.5 line spacing, double space is preferred.
4. Understand the procedural rules for Judicial Notice and their effect on your motion.  See   Ev. C §451 (pdf), Ev. C §452 (pdf), CRC 3.1113 (pdf)(l). 
5. You must do a table of contents and table of authorities if the motion is 10 pages or over. CRC 3.1113 (pdf)(f)   However, many judges appreciate a table of contents in any motion.
6. If you are bringing a motion to compel answers to special interrogatories or requests for admissions that are over the initial 35 allowed, then make sure and attach your “Declaration of Necessity.” 
7. If a department wants courtesy copies, make sure you get a full set to the department in a timely fashion.
8. Most importantly PROTECT YOUR REPUTATION.  Be accurate in your citation of the facts as well as the law.  Do not overreach.  Do not try and be clever.  Do not show disrespect to opposing counsel or their client.  The research staff as well as the judges will remember you.     

Next:   GAME ON--Opposing the Motion to Compel.               

When I started this blog I asked fellow attorneys what issues they would like me to address.  I received this response from a lawyer in San Francisco: 

Key problem – judges that won't crack down on parties that lodge bogus objections and don't answer interrogs, and object to discovery demands that are straight forward. Amount of sanctions awarded is usually pitiful. 

In order to overcome the reluctance of the judge, you need to be proactive in your moving papers and your arguments at the hearing regarding your request for sanctions.  Don’t be timid on asserting your position on this.  It is just as important as your other arguments.  Filing motions and the imposition of sanctions curbs discovery abuse and the 1986 Discovery Act recognizes this.  Thus you need to bring the motion and start establishing a pattern of opposing counsel’s discovery abuse and create a record of an imposition of sanctions.  Moreover, remember that judges are reluctant to impose a terminating sanction unless a history of lesser sanctions have first been imposed or prior discovery orders have been violated. See Weil and Brown, California Practice Guide: Civil Procedure Before Trial (TRG 2009) ¶ 8:1215 et seq.  

When seeking an order to recover sanctions, C.C.P §2023.040 (pdf)  requires your  discovery motion to contain the following:

Notice --The notice of motion must expressly state that you are seeking [monetary, issue, evidence or terminating] sanctions as well as the identity of the person, party or attorney against whom sanctions are being sought. 

Points and Authorities–Your moving papers must state the facts of the noncompliance, the authority as to why it is discoverable and the authority for the award of sanctions.  Don’t make the argument requesting sanctions in your P’s and A’s an afterthought.  Spend time on it.  List all the garbage objections to very basic questions and the law’s supporting your interrogatory or request. For example: “The identity and location of witnesses are not protected by attorney work product or the right of privacy.  C.C.P. §2017.010 (pdf) clearly states that the identity and location of witnesses are discoverable.”   Detail all the stonewalling, hostility and lack of good faith efforts during the meet and confer process.  Make it clear that your train has not left the station and you are losing precious trial prep time.   Make sure you site the authority for the sanctions you are requesting. 

Declaration--Declarations need to state (1) facts of the noncompliance and discovery abuse in which the declaring party has personal knowledge (If necessary use multiple declarations) (2) the meet and confer process, (3) time you have spent and are going to spend on each aspect of the motion, (4) your hourly rate  and (5) the calculations for the sanctions.  Again, do it in detail!!  Hint:  Do not cut your hours.  You need to let the judge know how much money this discovery dispute is costing your client. 

 In your moving papers point out to the court:

C.C.P. §2023.030 (pdf)(a)  states that “If a monetary sanction is authorized by any provision of this title (and almost all of them are), the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”  [Emphasis added]

The purpose of discovery sanctions is not to provide a weapon for punishment, forfeiture, and the avoidance of the trial on the merits, but to prevent abuse of the discovery process and correct the problem presented.  California Discovery Citations (TRG 2010) ¶1:6 citing Parker v. Wolters Kauwer U.S., Inc. (2007) 149 CA4th 285 (pdf) at 301.

Discovery sanctions are not a windfall.  They are to compensate for costs and fees incurred by the party in enforcing discovery or defending a meritless motion.  See Weil and Brown, California Practice Guide: Civil Procedure Before Trial (TRG 2009) ¶8:1213 citing Caryl Richards, Inc. v. Superior Court (1961) CA2d 300 at 303. 

Discovery sanctions are not reported to the State Bar. See Bus. & Prof. Code. §6068(o)(3) (pdf).

The “trial court is not required to make findings at all” in granting any discovery sanctions, including terminating sanctions.  See Weil and Brown, California Practice Guide: Civil Procedure Before Trial (TRG 2009) ¶8:1241.5 citing Ghanooni v. Super Shuttle of Los Angeles (1993) 20 CA 4th 256 (pdf) at 261. 

 At the hearing:

Be prepared to argue for sanctions.  Do not be afraid to make a record.  If you think that the judge is still reluctant to give you sanctions, then suggest that the sanctions be stayed to be lifted by the court at a later date (i.e., when the party complies with the order or, the one I like to use, by the trial judge.).  This is  important, because you need to establish a history of abuse.  Past conduct that has already been considered by the court cannot be the basis for additional sanctions. See Weil and Brown, California Practice Guide: Civil Procedure Before Trial (TRG 2009) ¶8:1209a citing Andrus v. Estrada (1995) 39 CA4th 1030 (pdf) at 1043. 

The court needs to take discovery motions seriously.  They impact a case just as much as and in many cases  more than demurrers and  motions for summary judgment.  However, it is your job to educate the judge as to why you are entitled to sanctions.   Good luck!!

 Let us know if  you are successful in your next quest for discovery sanctions.