UPDATED 10/23/2020

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. 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; Wimberly v. Derby Cycle Corp. (1997) 56 Cal. App. 4th 618, 635-638. The court is required to impose the sanction. Again, the word shall is in the statute.

An award of costs of proof for denial of a request for admission is not an “instrument of discovery” but it is part of a procedural mechanism intended to expedite trial by reducing the number of triable issues that must be adjudicated.  City of Glendale v. Marcus Cable Associates, LLC, (2015) 235 Cal. App. 4th 344, 352-353.

You don’t have to win the lawsuit to be awarded cost of proof sanctions! Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2020), ¶8:1405 citing Smith v. Circle P Ranch Co., Inc. (1978) 87 CA3d, 267, 276.

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; (2) the requesting did not have a “direct relationship to one of the central issues in the caseLaabs v. City of Victorville (2008) 163 CA4th 1242, 1276; (3) the case settled before had to prove the matters at trial Wagy v Brown (1994) 24 CA 4th 1; and (4) responding party either admitted before trial or during trial. Stull v. Sparrow (2001) 92 CA 4th 860

Don’t forget: If the responding party objects to your requests for admissions, you must file a motion to compel further responses.  See CEB, California Civil Discovery Practice (4th ed. 2020) §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. 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. 2020) §9:90 and C.C.P. §2033.420. However, CEB, California Civil Discovery Practice (4th ed. 2020) does provide a form for the motion in Sections 9:123-9.124.