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?
There are three motions that you can bring–(1) Motion to Compel, (2) Motion to Compel Further Responses, and (3) Motion to Have Admissions Deemed Admitted. All of them have their place in your discovery plan but two of them–Motion to Compel Further Responses and Motions to Have Matters Deemed Admitted must be in your arsenal. Though they appear to be the same motions you would use for interrogatories, inspection demands, and depositions there are a few noteworthy twists and turns.
Answering Requests for Admissions is very similar to answering interrogatories–you have an obligation to respond in good faith and you have to be careful about your garbage objections. However, the code makes it clear that the requirements in responding to Requests for Admissions are higher.
Requests for admissions may be used to (1) establish the truth of specified facts, (2) admit a legal conclusion, (3) determine a party’s opinion relating to a fact, (4) settle a matter in controversy, and (5) admit the genuineness of documents. See C.C.P. §2033.010 (pdf); Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2010), ¶¶8:1288 – 8:1301.2; CEB California Civil Discovery Practice 4th Edition §§ 9:17 – 9:20. However that is all good and dandy, but how to write a request for admission in order to obtain effective evidence or to set up a cost of proof sanction is difficult.
C.C.P. §2033.060 (pdf) sets forth the basic tenants as to how a request for admission must be drafted:
- Each request must be numbered consecutively. C.C.P. §2033.060(a)
- The first paragraph immediately shall state he identity of the party requesting the admissions, the set number, and the identity of the responding party. C.C.P. §2033.060(b)
- Each request shall be “separately set forth.” C.C.P. § 2033.060(c)
- Each request shall be “full and complete in and of itself” and there shall be no preface or instructions. C.C.P. §2033.060(d)
- No carry over definitions. C.C.P. §2033.060(e)
- No subparts or “compound, conjunctive or disjunctive” requests. C.C.P. §2033.060(f)
- If you are requesting an admission of the genuineness of documents, then they must be attached. C.C.P. §2033.060(g)
The discovery treatises also give some helpful advice. Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2010), §8:1287.1 states:
Keep your RFA’s as simple as possible so there is no room for denial! This will avoid objections on the ground of ‘compound and conjunctive.
Keep in mind that any admission obtained will probably be construed narrowly. So, make sure there is no room for quibbling as to what was admitted!
CEB, California Civil Discovery Practice (4th ed. 2010) §9:17 advises that because the court has broad discretion in determining admissibility and relevance of evidence and scope and effect of an admission the
. . . RFA’s must be clear concise and unambiguous. See Fredericks v. Kontos Indus., Inc. (1987) 189 CA 3d 272, 277 (pdf) (if admission is susceptible to more than one meaning, trial court must exercise its discretion to determine scope and effect of admission ‘so that it accurately reflects what facts are admitted in the light of other evidence’. Trial courts may consider parol evidence that explains an admission but cannot use parol evidence to contradict the plain meaning of a response to an RFA; if a response to an RFA is unambiguous, the matter admitted is conclusively established. Monroy v. City of Los Angeles (2008) 164 CA4th 248, 260 (pdf)
However, the best advice I was ever given was when I was admonished by a Judge. During a Case Management Conference the Judge asked me what were the jury instructions I was going to use at trial. I responded “Your Honor we don’t even have a trial date yet.” The Judge replied “Then how do you know what discovery you need to prove your case?” I went back to my office and whined to our seasoned trial attorney. He had no sympathy for me and said “The Judge is right. Go look at the jury instructions and figure out your case.” With my tail between my legs I went to the library and looked at jury instructions for the first time. They were amazing. They were one page road maps as to what I had to prove. Right then and there I started using requests for admissions.
As an example, using California Jury Instruction 1201 Titled Strict Liability—Manufacturing Defect—Essential Factual Elements (pdf), I would write my requests as follows:
Request # 1: Admit that [name of defendant] [manufactured/ distributed/ sold] the [product].
Request #2: Admit that the [product] contained a manufacturing defect when it left [name of defendant]’s possession.
Request #3: Admit that [name of plaintiff] was harmed while using the [product] in a reasonably foreseeable way.
Request #4: Admit that the [product]’s defect was a substantial factor in causing [name of plaintiff]’s harm.
I would then serve these Requests for Admissions with Form Interrogatory #17.1 and a Request for Production of Documents for “all documents listed in your answers to Form Interrogatory 17.1(d).” The foundation of my discovery plan was now set and I was in a position to receive effective evidence or, in the alternative, cost of proof sanctions. I would then serve these Requests for Admissions with Form Interrogatory #17.1 and a Request for Production of Documents for “all documents listed in your answers to Form Interrogatory 17.1(d).” The foundation of my discovery plan was now set and I was in a position to receive effective evidence or, in the alternative, cost of proof sanctions.
If you are like most lawyers, you are using the typical discovery devices to gather up all your information–form interrogatories, special interrogatories, requests for production of documents, and of course the deposition schedule from Hell. However, requests for admissions are rarely in a party’s discovery plan. I suggest you take a closer look at C.C.P. §2033.010 (pdf) et seq. Requests for admissions are wonderful, tricky little discovery devices that really help you set up your case. Let me explain why.
Over the years friends and colleagues have called me up asking for a quick answer on a discovery question that they have. The phone call usually went like this “I want to get plaintiff’s phone records, how do I do that?” or “I forgot to disclose experts, am I too late?” or “They want to send my client to a psychiatrist. Can I object?” I know the answers to these questions which are “Yes,” “No” and “Yes.” However, to get the statutory authority, I rely on the charts I have prepared and published over the last 18 years. The California Civil Discovery–Charts for the Everyday Litigator ” (pdf) was recently updated and now available to you for download.
Hope it helps!!
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”?
Motions to compel further responses to interrogatories, requests for productions of documents and requests for admissions require that the motion be filed within 45 days. CCP §§ 2030.300(c), 2031.310(c) and 2032.290(c) Delaying the filing of the motion waives a party’s right to compel further responses. The case of Vidal Sassoon, Inc. v. Superior Court (1983) 147 Cal. App. 3d 681 (pdf) at 685 (Pre-1986 Discovery Act) takes the position that the court lacks jurisdiction to order further responses after time has expired. The Second District Court of Appeal upheld this rationale in Sexton v. Superior Court (1987) 58 Cal. App. 4th 1403 (pdf), 1410.
Not only are most objections garbage, we tend to recycle our garbage objections from one case to the next. Sometimes, we pick up other attorneys’ garbage objections and contribute to more litter. This is done over and over again without even thinking what it is doing to the environment of the litigation.
Garbage objections fuel the ire of opposing counsel. The “meet and confer” letter that is soon to follow is usually full of hostility and threats. Any amicable relationship you had hoped for with opposing counsel is on the cusp of being destroyed. More important, you are now costing your client more money in attorneys’ fees and possibly in settlement. So before you throw out the trash, look at these common objections and why they will be overruled: