Request for Admissions

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Recently I received a telephone call from an attorney wanting to discuss whether opposing party’s objections to her special interrogatories had any merit.  Listening to the list of objections, it was clear that the opposing party had failed to assert the objections in good faith as the objections included a General Objection preamble and every response included the same boilerplate garbage objections.  However, one of the objections I hadn’t seen before:  “No preface or instruction shall be included with a set of interrogatories.  C.C.P. §2030.060(d).”  The propounding party had placed the definitions of specific terms in a preamble.  Did I think this was ok or not?

Statutes governing special interrogatories and requests for admissions do not allow for a preface or instruction.  Only when you are using Judicial Council forms for interrogatories and requests for admissions are a preface or instruction permitted.  See C.C.P. §§2030.060(d) and 2033.060(d).  Yet, both the special Interrogatories and requests for admissions statutes require that any term specifically defined shall be typed with all letters capitalized whenever the term appears. See C.C.P.  §§2030.060(e) and 2033.060(e)

The Weil and Brown, Cal Prac. Guide:  Civil Procedure Before Trial (TRG 2016) takes a position on this is at ¶8:972, which states:

“[w]hether definitions may be placed at the beginning of specially prepared interrogatories is unclear . . . ”

“. . .However, the fact that §2030.060(e) requires specially defined terms to be capitalized strongly suggests they be placed in a single location.  Presumably, this should be at the beginning of the interrogatories . . . “

The California Civil Discovery Practice, Fourth Edition (CEB 2016) at §7.53 has a different take on prefaces, instructions and definitions for special interrogatories.

Prefaces and Instructions.  To ensure that the limitation on the number of interrogatories not circumvented by a lengthy preface or instructions that might amount to subparts (see §7.335), each interrogatory must be full and complete; no preface or instructions are allowed unless they have been approved by the Judicial Council under CCP §§2033.710 – 2033.740.  CCP §2030.060(d).

Definitions.  Definitions may be used in a set of interrogatories, and defined words must be capitalized whenever they reappear in the interrogatories.  CCP §2030.060(e).  Definitions can help counsel avoid repetition in drafting interrogatories, but they should be tailored to the particular action.  It is important to avoid confusion caused by terms not used in or applicable to the interrogatories propounded.  

Some examples of the use of definitions:

  • Who was the driver of the VEHICLE at the time of the accident on Nov. 1, 2005?  (“VEHICLE” is defined for the purposes of these interrogatories as the 2005 red Jeep Cherokee, California License No. RXV724.)
  • Who was the owner of the VEHICLE at the time of the accident on November 1, 2005?

In my opinion, CEB’s recommendation of putting the definition in the individual interrogatory is the better advice even though it is much more convenient for responding party to have the definitions at the beginning.  It is just not worth risking a court denying your motion to compel further answers on procedural grounds.

Decorative Scales of Justice in the CourtroomIn most practices areas, facts are king. The attorney who can discover and present the best “facts” will be the most persuasive when presenting their case to the judge or jury. However, some cases can be won in the law and motion department with a Motion for Summary Judgment and/or Summary Adjudication.  In these cases, the facts are less important than the law. If your case is one that you can win as a matter of law based on inconvertible facts (or the opponents admitted facts) and you believe that a Motion for Summary Judgment or a Motion for Summary Adjudication is appropriate, you need to develop a discovery plan specifically tailored to these motions.

As you know, a Motion for Summary Judgment and/or Summary Adjudication must be supported by admissible evidence. See C.C.P. §437c(b)(1). The moving party must present admissible evidence in support of each undisputed material fact necessary to entity them to judgment (or adjudication of the issue) in their favor. Therefore, if there is no admissible evidence with regard to a material fact, the motion will be denied. The discovery devices listed in order of most the useful to least useful for these motions are:

(1)       Requests for Admissions

(2)       Depositions

(3)       Interrogatories

(4)       Requests for Production of Documents.

Requests for Admissions are the most useful. The main purpose of Requests for Admissions is to set issues to rest by compelling admissions of things that cannot reasonably be controverted.  Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2015), ¶8:1256, citing Shepard & Morgan v. Lee & Daniel, Inc. (1982) 31 C3d 256, 261. If a party admits key facts, including legal conclusions, and/or authenticates documents you are in a better position to win a motion for summary judgment or summary adjudication.  Because a party can deny a request for admission, you should also be serving Form Interrogatory #17.1 as well as a Document Request asking for all documents listed in Form Interrogatory #17.1(d) to make sure that any questionable or frivolous denials are exposed.  See my blog “How to Write Requests for Admissions.”

Depositions are the “next best” discovery method after Request for Admissions. If there are facts, documents, etc. that require an explanation the witness with knowledge is the best means of obtaining this evidence, especially when your opposing counsel provides evasive or non-responsive answers to written discovery. However, the lawyer must be careful to ask precise questions so that there is a clear question and answer for purposes of supporting one or more facts in the separate statement.

Interrogatories are the third most useful discovery device. Interrogatories are good for establishing the basic nature of claims being presented, witnesses that might be available or other such broad based questions. They are usually not precise enough to support Motions for Summary Judgment, except when they are incredibly narrow. However, where the Motion for Summary Judgment is based on an absence of evidence that the opposing side has to support their case, an interrogatory may be useful to show that they were given ample opportunity to present that evidence.

Requests for Production of Documents, while essential, are only preliminary. One mistake young lawyers make (and some older ones) is that they believe if a party produces a document it is admissible in evidence. In fact, the Production of Documents even with a verification neither authenticates any document nor establishes the statements made therein.  Thus, it is important to follow up by using the Judicial Council Form Request for Admission and ask for authentication of documents, in addition to obtaining an admission that the document was, for example, sent by mail in the ordinary course of business to establish that the document was not heresy.

One common pitfall lawyers often make in filing a Motion for Summary judgment/summary adjudication is the timing. These motions require an exorbitant amount of time for notice–75 days (plus five for mailing). The last day these motions can be heard is 30 days before trial. Thus the last day to file a Motion for Summary Judgment and/or Summary Adjudication is 105 Days before Trial–that is before expert disclosure (50 days before trial) and the  discovery cutoff (30 days before trial).

Moral of the Story:  The decision to file a Motion for Summary Judgment and/or Summary Adjudication must be considered early in a case so you have adequate time to develop a discovery plan and obtain the discovery you need to file a successful motion.


Young handsome businessman sitting in chair with his legs on pile of books

Several times per month I receive questions from attorneys regarding a discovery dilemma.  Mostly the questions offer a novel twist on basic discovery.  However, this latest query was quirkier than most and raised some interesting issues and misconceptions, so I thought I would share it with you.   It went like this:

I served written discovery on a cross-defendant in a case, we are one of the defendants.  Cross-defendant (represented by, the plaintiff’s counsel) has appeared in this case by way of demurrer.  Cross-Defendant has refused to answer for the following reasons, (1) my clients are not parties to the cross-complaint so therefore we cannot propound discovery; (2) the court sustained the demurrer with leave to amend and the amended cross-complaint will be filed shortly by the cross-complainant; and (3) the cross-defendant lives in Europe and I need to go through the Hague Convention.  I don’t think any of these are legitimate reasons for not responding to discovery.

Continue Reading DISCOVERY GAMES AND MISCONCEPTIONS – Are These Objections Legitimate?


Recently I was contacted to help on a party’s Motion to Compel Further Responses to Form Interrogatories, Requests for Production of Documents, and Requests for Admissions. In viewing opposing counsel’s responses to the discovery, I gazed upon the General Response and Objections preamble in absolute astonishment.  It read as follows:

Continue Reading Why You Need to Bring a Motion to Strike General Objections

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ANSWER:     A fictional document. A non-existent objection neither based in statutory authority nor found in case law. A statement by a party during the discovery phase that they will neither be held to the Code of Civil Procedure nor the rules of evidence.

In my years as a discovery referee, I have found that lawyers have gotten into the bad habit of inserting a preamble in their responses to interrogatories, requests for production and requests for admissions. These preambles often state the obvious as to what their rights are as responding parties. However, many times these preambles state general objections to the entirety of the propounded discovery and insert rights that are contrary to the obligations of the Discovery Act, the evidence code and current case law. Even though several interrogatories, requests for documents and request for admissions may be objectionable on the same ground they may not be objected to as a group. See Hogan and Weber, California Civil Discovery (2d. ed 2009) §51 Continue Reading What is a General Objection?

Overwhelmed Office Worker

Somewhere in the back of your mind you are aware that discovery and Motions for Summary Judgment deadlines are looming. Yet, you really don’t pay attention to them until they are upon us usually around day 45 when you start trying to schedule experts. That is when you realize there are not enough hours in the day and days in the week. Unless you have a case that is a simple slip and fall or a fender bender, the last 100 days before trial can be daunting. Throw in a Motion for Summary Judgment or Summary Adjudication into the mix and you’re swamped. Then there is the ultimate question you ask yourself, “When am I going to find time to prepare for trial.”

The Code of Civil Procedure timeline regarding deadlines for expert disclosure, close of discovery and the last day discovery motions can be heard is demonstrated below.  Seeing it scheduled in black and white is kind of scary. Continue Reading Discovery Plan Part 4 — The Year Before Trial

iStock_000016672124XSmall-1.jpgI recently received an e-mail from a pro-per who asked me

“ Is there any chance you can send me a link to an example “meet & confer” declaration form”

Wouldn’t it be nice to have a Judicial Council form where you could check the boxes on such a form and be done with it? The judge should just assume that you did what needed to be done and grant your motion. Isn’t that the way it should be? I mean, really, aren’t we all professionals and if you say that you met and conferred in good faith your word should be enough. Right? Not quite…

Continue Reading Save Time, Money and Angst — MEET AND CONFER

Southern Belle.jpgAs every lawyer is aware, a party may propound more than 35 specially prepared interrogatories or requests for admissions simply by attaching a Declaration of Necessity (pdf) pursuant to C.C.P. §2030.040 (pdf) and  C.C.P. §2033.040 (pdf) stating the reasons why they need more.  See C.C.P. §2030.050 (pdf) and C.C.P. §2033.050 (pdf).   However, when you receive more than 35 specially prepared interrogatories or requests for admissions, you should ask yourself the question “IS IT REALLY NECESSARY?” Continue Reading “I DECLARE, IT IS NECESSARY”


As I talked about in my first blog “Why Aren’t You Using Requests for Admissions”, the legislative intent behind requests for admissions is to urge parties to take them seriously. One of the real kickers of this statute is the cost of proof sanctions set out in C.C.P. §2033.420 (pdf). If the responding party is found to have unreasonably denied a request for admission, that party may be ordered to pay the costs and fees incurred by the requesting party to prove the issue at trial. See Garcia v. Hyster Co. (1994) 28 Cal. App. 4th 724, 736 (pdf): Wimberly v. Derby Cycle Corp. (1997) 56 Cal. App. 4th 618, 635-638 (pdf). The court is required to impose the sanction. Again, the word shall is in the statute.



After a long stretch of depositions, coupled with intense mediation sessions you finally have a day in the office to clean off your desk and catch up on your other cases.  Going through the stacks of mail, you unfortunately find the Motion to Have Admissions be Deemed Admitted aka the Discovery Motion with Teeth. Panic sets in. Now what do you do?

Continue Reading The Discovery Motion with Teeth