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.

Cost of proof sanctions are not really sanctions per se, but are designed to compensate for unnecessary expenses resulting from proving matters unreasonably denied.  You don’t have to win the lawsuit to be awarded these sanctions!! Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2010), ¶8:1405 citing Smith v. Circle P Ranch Co., Inc. (1978) 87 CA3d, 267, 276 (pdf).  

That is all good and well but, really, do you know how to win this motion?  You have heard the horror stories that despite the mandatory language, judges still seem to find a way not to grant this motion.  In fact there is a plethora of case law that carves out exceptions to the rule. Such as (1) when a party has a good faith basis for believing its position to be correct C.C.P. § 2033.420(b)(3), Denver D. Darling, Inc. v. Controlled Environments Construction, Inc. (2001) 89 CA4th 1221, 1239(pdf); (2) the requesting did not have a “direct relationship to one of the central issues in the case” Laabs v. City of Victorville (2008) 163 CA4th 1242, 1276 (pdf); (3) the case settled before had to prove the matters at trial Wagy v Brown (1994) 24 CA 4th 1 (pdf); and (4) responding party either admitted before trial or during trial. Stull v. Sparrow (2001) 92 CA 4th 860 (pdf); Wagy v. Brown (1994), supra. 

They way to win this motion is to set it up from the beginning.  Burlingame attorney Simon Mazzola has been successful in using a preamble in his requests for admissions stating:

Pursuant to Code of Civil Procedure Section 2033.010 (pdf) et seq., [MY CLIENT] hereby requests that [YOUR CLIENT] admit or deny under oath the following Requests for Admissions separately and fully in writing within THIRTY (30) DAYS after service hereof.  If [YOUR CLIENT] cannot admit or deny a request for admission, he must explain why. 

If a Request for Admission cannot be fully answered, answer it to the extent possible.  You are required to make a good faith effort to obtain the information from sources reasonably available to you.  The responses, as required by C.C.P. §2033.220 (pdf) et seq. “must be, as complete and straightforward, as the information available reasonably permits’ . . . and shall admit so much of the matter as is true . . . or as reasonably and clearly qualified by the responding party.”  Weil and Brown, Civil Procedure Before Trial at 8:1323, citing C.C.P. § 2033.220(b)(1). A denial must be unequivocal. C.C.P. § CCP §2033.210 (pdf) et seq. See Holguin v. Sup Ct. (1972) 22 CA3d 812, 820 (pdf), 820 and Smith v. Circle P Ranch Co., Inc.  (1978)  87 C.A.3d 267, 275.

Under C.C.P. §2033.420 (pdf), if the responding party unreasonably denies a request for admission, that party may be ordered to pay the costs and attorneys’ fees incurred by the requesting party in proving that matter at trial after the request for admission was denied. Garcia v. Hyster Co. (1994) 28 Cal. App. 4th 724;  Wimberly v. Derby Cycle Corp. (1997) 56 C.A.4th 618, 635-638 (pdf) The imposition of this sanction is mandatory and the requesting party need not prevail at trial in order to be entitled to the sanction.  A party’s failure to undertake an investigation when the information was at hand does not support the party’s denial of admission and cost-of-proof sanctions were proper.  Smith v. Circle P Ranch Co., Inc.  (1978) 87 C.A.3d 267, 276.  The requesting party need only has to show that he is entitled to “reasonable expenses incurred . . . including reasonable attorneys’ fees” in proving matters unreasonably denied. C.C.P. § 2033.420.

The next step is the use the California Civil Jury Instructions [CCJI] to aid you in drafting your requests.  Remember to keep your RFA’s as simple as possible so there is no room for denial; thus avoiding objections on the ground of compound and conjunctive. Cal.  Prac. Guide: Civil Procedure Before Trial (TRG 2010) ¶8:1287.1

Don’t forget, if the responding party objects, you must file a motion to compel further responses.  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, 633.

The final step is filing the Motion to Recover Cost of Proof Sanctions.  This motion is brought at the conclusion of a trail or after a motion for summary judgment is granted.  Barnett v. Penske Truck Leasing Co., L.P. (2001) 90 CA4th 494, 498 (pdf).  There is no specification on when or how the motion for expenses of proof should be made.  See CEB, California Civil Discovery Practice (4th ed. 2010) §9:90 and C.C.P. §2033.420.  However, CEB, California Civil Discovery Practice (4th ed. 2010) does provide a form for the motion in Sections 9:123-9.124.

Good luck and let me know if you are successful.