DISCOVERY CASE OUTLINE
©Richard E. Best 1980,1998-2006 All rights reserved

DISCOVERY
DISCOVERY
REFEREE

CONTACT
E-discovery

Deposition
Interrogatory
Document
Admission
Experts
Med.Exam Sanctions Meet & Confer Disc.Cutoff Referee
Basic Disc
E-discovery
Atty.- Client
Work Product
Privacy
Phys-Patient
Med.Qual.Rev
Reporter Priv
Official Info
Tax Return

REQUESTS FOR ADMISSIONS
Contents
Cases
Case Outline
JUDICIAL COUNCIL FORM REQUEST







CONTENTS


SCOPE, PURPOSE & FUNCTION OF ADMISSIONS
INVESTIGATION REQUIRED IN RESPONDING
VERIFICATION

Form of verification
Attorney cannot verify; C.C.P. §446 inapplicable to discovery
Lack of verification = no response

ADMISSIONS & DENIALS complete & straightforward

Unequivocal denials

advice of counsel
"As framed, denied"
on information and belief.
lack of information and belief

Partial denial
Good faith
Discovery re basis for denial

OBJECTIONS

WAIVER OF OBJECTIONS
IMPROPER OBJECTIONS

Entire set
Lack of personal knowledge
Complexity or controversy
Ambiguity
Legal conclusion
Facts known to propounder

PROTECTIVE ORDER ALTERNATIVE

WITHDRAWALS
AMENDMENTS
DEEMED ADMITTED MOTION

Mandatory monetary sanctions
Mandatory grant if no proper response prior to hearing
Mandatory denial if proper response
Time cannot be shortened for hearing

RELIEF FROM ADMISSIONS FOR FAILURE TO RESPOND
NO EVASION OF ADMISSIONS BY VOLUNTARY DISMISSAL
NO EXTENSION OF TIME TO COMPLY ON DEEMED ADMITTED MOTION
PROTECTIVE ORDER TO AVOID DEEMED ADMITTED ORDER
EXTRINSIC FRAUD BASIS FOR RELIEF
SANCTIONS [Expenses for proving facts at trial [2033.420]
USE AT TRIAL

CALIFORNIA DISCOVERY

San Francisco Discovery

CASES

Allen v. Pitchess (1973), 36 Cal.App.3d 321
Allen-Pacific, Ltd. v. Superior Court (1997), 57 Cal.App.4th 1546
Appleton v. Superior Court(1988), 206 Cal.App.3d 632
American Federation of State, County & Municipal Employees v. Metropolitan Water Dist. (2005)126 Cal.App.4th 247, 266
Barnett v. Penske Truck Leasing (2001), 90 Cal.App.4th 494
Brooks v.American Broadcasting Co. (1986), 179 Cal.App.3d 500
Brigante v. Huang (1993), 20 Cal.App.4th 1569
Burch v. Gombos (2000), 82 Cal.App.4th 352
Burke v. Superior Court (1969), 71 Cal.2d 276, 282.
Cembrook v. Superior Court (1961), 56 Cal.2d 423, 429
Chodos v. Superior Court (1963), 215 Cal.App.2d 318
Cohen v. Superior Court (1976), 63 Cal.App.3d 184, 187
Courtesy Claims Service Inc. v. Superior Court(1990), 219 Cal.App.3rd 55
Demyer v. Costa Mesa Mobile Homes Estates (1995), 36 Cal. App.4th 393
In re Estate of Dorothy Manuel (Cal. App. Second Dist., Div. 3; August10. 2010) 187 Cal.App.4th 400
Fredericks v. Kontos Industries (1987), 189 Cal.App.3d 272
Garcia v. Hyster Co. (1994), 28 Cal.App.4th 724
Guzman v. General Motors
(1984), 154 Cal.App.3d 438,444 fn.5
Haseltine v. Haseltine (1962), 203 Cal.App.2d 48
Hillman v. Stuitz (1968), 263 Cal.App.2d 848
Holguin v. Superior Court (1972), 22 Cal.App. 3d 812, 821.
International Harvester Co. v. Superior Court (1969), 73 Cal.App.2d 652, 655.
Jahn v. Brickley(1985), 168 Cal.App.3d 399
Kaiser Steel Corp v.Westinghouse Electric Corp. (1976), 55 Cal.App.3d 737
Lieb v. Superior Court (1962), 199 Cal.App.2d 364, 368.
Lindgren v. Superior Court (1965) 237 Cal.App.2d 743, 746.
Martin v. Tony & Susan Alamo Foundation (1985), 169 Cal.App.3d 755 [depublished]
Miller v. Marina Mercy Hospital (1984), 157 Cal.App.3d 765
Milton v. Montgomery Ward & Co.(1973),33 Cal.App.3d 133
New Albertsons, Inc. v. Superior Court (Shanahan) (2008),  168 Cal.App.4th 1403
Rosales v. Thermex-Thermatron(1998), 66 Cal. App. 4th 408
St. Mary v. Superior Court (2014), 223 Cal.App.4th 762
Schultz v. Mutch(1985), 165 Cal.Ap.3d 66, 79
St.Paul Fire & Marine Ins. Co.v. Superior Court (1992), 2 Cal.App.4th 843
Shepard & Morgan v. Lee & Daniel (1982), 130 Cal.App.3d 256
Smith v. Circle P Ranch(1978), 87 Cal.App.3d 267
Steel v. Totah (1986), 180 Cal.App.3d 545
Stull v. Sparrow (2001), 92 Cal.App.4th 860
Thomas v. Makita (1986), 181 Cal.App.3d 989
Tobin v. Oris (1992), 3 Cal.App.4th 814
Valerio v. Andrew Youngquist Construction (2002)103 Cal.App.4th 1264 , 127 Cal.Rptr.2d 436
Wagy v. Brown (1994), 24 Cal.App.4th 1
Wilcox v. Birtwhistle
(1999), 21 Cal.4th 973 [affirms 66 Cal.App.4th 1065 ]
Wimberly v. Derby Cycle Corp. (1997), 56 Cal.App.4th 618
Zorro Inv. Co. v. Great Pacific Securities Corp.(1977), 69 Cal.App.3d 907

top---- cases---- contents
CASE OUTLINE

SCOPE, PURPOSE & FUNCTION OF ADMISSIONS

Establish uncontroverted facts learned from other discovery; save time and expense of proof at trial

St. Mary v. Superior Court (2014), 223 Cal.App.4th 762

Fredericks v. Kontos Industries (1987), 189 Cal.App.3d 272, 276

Requests for admission are not a discovery device.

International Harvester v. Superior Court (1969), 273 Cal.App.2d 652, 655.

Lieb v. Superior Court (1962), 199 Cal.App.2d 364, 367.

Hillman v. Stultz (1968), 263 Cal.App.2d 848, 885.

Burch v. Gombos (2000), 82 Cal.App.4th 352, 359

Set to rest triable issues so as to expedite the trial rather than trial preparation

C.C.P. §2033.010 may relate to matter in controversy

St. Mary v. Superior Court (2014), 223 Cal.App.4th 762

Cembrook v. Superior Court (1961), 56 Cal.2d 423, 429

Brigante v. Huang (1993), 20 Cal.App.4th 1569, at p.1576

Shepard & Morgan v. Lee & Daniel (1982), 130 Cal.App.3d 256 ["...to uncover undisputed factual issues, not to compel an election of defenses or remedies."]

Hillman v. Stuitz (1968), 263 Cal.App.2d 848, 885.("They were enacted to eliminate the necessity of putting on formal proof of essentially uncontroverted facts, not as a substitute for trial of genuinely disputed facts.")

Chodos v. Superior Court (1963), 215 Cal.App.2d 318, 323-324.("If '(defendants) do not intend to contest any of these facts, the statute requires them to say so now, by an admission . . . if they want to put plaintiffs to their proof, they may deny. . .")

Zorro Investment Co. v. Great Pacific Securities (1977), 69 Cal.App.3d 907, 913.

Smith v. Circle P. Ranch (1978), 87 Cal.App.3d 267, 273.

International Harvester Co. v. Superior Court (1969), 73 Cal.App.2d 652, 655.

Stull v. Sparrow (2001), 92 Cal.App.4th 860 [discovery cost saving rejected as purpose; saving of trial time more important and sanctions rejected when admission made on eve of trial after prior denial]

Requests for admission of law may not be proper.

Lieb v. Superior Court (1962), 199 Cal.App.2d 364, 368.

Burke v. Superior Court (1969) 71 Cal.2d 276, 282.

Requests should be admitted if a party does not in good faith intend to contest the matter at trial.

St. Mary v. Superior Court (2014), 223 Cal.App.4th 762

Wimberly v. Derby Cycle Corp. (1997), 56 Cal.App.4th 618

Smith v. Circle P. Ranch
(1978), 87 Cal.App.3d 267, 273.

Burke v. Superior Court (1969), 71 Cal.2d 276, 282.

Haseltine v. Haseltine (1962), 203 Cal.App.2d 48 [admit when fact cannot be reasonably disputed; tr ct found good faith in denying 23 of 27 requests]

Interrogatories regarding the factual basis for a denial are proper.

See Calif. Judicial Council form interrogatory 17.1

Holguin v. Superior Court (1972), 22 Cal.App. 3d 812, 821.

Same relevancy to the subject matter standards as with other discovery devices.

Cembrook v. Superior Court (1961), 56 Cal.2d 423, 429.

Contra, Lieb v. Superior Court (1962), 199 Cal.App.2d 364, 367.(Relevant to issues to be tried.)

Smith v. Circle P. Ranch (1978), 87 Cal.App.3d 267, 273.

TOP--- CASES--- CASE OUTLINE ---CONTENTS

INVESTIGATION REQUIRED IN RESPONDING [See Interrogatories Case Outline]

Can require a reasonable investigation if the sources of information are available to determine if the matter is disputed.

Wimberly v. Derby Cycle Corp. (1997), 56 Cal.App.4th 618, 634

Chodos v. Superior Court
(1963), 215 Cal.App.2d 318, 323

Lindgren v. Superior Court (1965), 237 Cal.App.2d 743, 746.

Kelly v. Montgomery Lynch (N.D. Ohio 2007),  2007 U.S. Dist. LEXIS 93651
"Defendant now argues in greater detail that its electronic filing system is only searchable by consumer name and, therefore, an attempt to obtain information regarding the number of people who were sent a specific letter during the specified time period would be an arduous task. [Doc. 35.] The Defendant, however, has produced no evidence or description of its attempt to engage in a "reasonable inquiry" to discover and produce the requested information, other than the general observation that finding the information would be difficult."
“The Defendant, however, has produced no evidence or description of its attempt to engage in a 'reasonable inquiry' to discover and produce the requested information, other than the general observation that finding the information would be difficult. This Court concludes that the requested discovery is not unduly burdensome and that the Defendant has failed to carry its burden of showing that it made a reasonable inquiry to obtain answers to the Plaintiff's requests."

A party is not required to respond in accord with facts learned from others or hearsay.

Holguin v. Superior Court (1972), 22 Cal.App.3d 812, 819.

Cembrook v. Superior Court (1961), 56 Cal.2d 423, 428.

A party may have to consult with an expert.

Chodos v. Superior Court (1963), 215 Cal.App.2d 318, 322 .

Sigerseth v. Superior Court (1972) 23 Cal.App.3d 427.[Sanctions imposed for party's refusal to obtain information from its own expert to answer interrogatories.]

Tehachapi-Cummings County Water Dist. v. Superior Court (1968) 267 Cal.App.2d 42, 46.[interrogatories]

A party need not hire private investigators to travel to Spain to verify facts.

Lindgren v. Superior Court (1965) 237 Cal.App.2d 743, 748.

Absence of a reasonable investigation indicates there was no good reason for the denial and justifies the imposition of monetary sanctions.

Wimberly v. Derby Cycle Corp. (1997), 56 Cal.App.4th 618, 634-5 [If lack personal knowledge, have sources available and fail to make a reasonable investigation it shows lack of reasonable ground to believe would prevail, lack of good reason for the failure to admit and supports sanction award]

Smith v. Circle P. Ranch
(1978), 87 Cal.App.3d 267, 275. [Prior law. Denial for lack of information and belief when party has access to information.]

Allen v. Pitchess (1973), 36 Cal.App.3d 321, 330.
(Prior law. Statement re "lack of information and belief" was false.)

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INABILITY TO ADMIT OR DENY  

Kelly v. Montgomery Lynch (N.D. Ohio 2007),  2007 U.S. Dist. LEXIS 93651
“Rule 36(a) establishes, however, that a party "may not give lack of information or knowledge as a reason for failure to admit or deny unless the party states that the party has made reasonable inquiry and that the information known or readily ascertainable by the party is insufficient to enable the party to admit or deny." Id. The requesting party may move the district court to determine the adequacy of the answers provided. Pursuant to Rule 36(a), "If the court determines that an answer does not comply with the requirements of this rule, it may order either that the matter is admitted or that an amended answer may be served."
“The Defendant, however, has produced no evidence or description of its attempt to engage in a 'reasonable inquiry' to discover and produce the requested information, other than the general observation that finding the information would be difficult. This Court concludes that the requested discovery is not unduly burdensome and that the Defendant has failed to carry its burden of showing that it made a reasonable inquiry to obtain answers to the Plaintiff's requests."

VERIFICATION

Form of verification

Chodos v. Superior Court (1963) 215 Cal.App.2d 318, 322-323 [ Same oath as that required for pleadings and may be on information and belief.]

Tobin v. Orvis (1992) [joint response in single document ok if both verify]

Attorney cannot verify; C.C.P,§ 446 party absent from county doesn't apply to discovery

Allen v. Pitchess (1973), 36 Cal.App.3d 321

Brigante v. Huang (1993), 20 Cal.App.4th 1569, at p. 1575

Steele v. Totah (1986), 180 Cal.App.3d 545 [attorney cannot verify; prior law]

Lack of verification = no response

St. Mary v. Superior Court (2014), 223 Cal.App.4th 762 [opinion summarizes law]

Allen v. Pitchess (1973), 36 Cal.App.3d 321 [lack of verification = no response; grant deemed admitted motion; attorney verification improper, dictum p.1551]

Appleton v. Superior Court(1988), 206 Cal.App.3d 632

Zorro Inv. Co. v. Great Pacific Securities Corp.(1977), 69 Cal.App.3d 907

Kaiser Steel Corp v.Westinghouse Electric Corp. (1976), 55 Cal.App.3d 737

Thomas v. Makita (1986), 181 Cal.App.3d 989 [lost verification = failure to respond]

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ADMISSIONS & DENIALS must be complete and straightforward

C.C.P. §2033.220

Unequivocal denials

Admissions and Denial followed by explanation

St. Mary v. Superior Court (2014), 223 Cal.App.4th 762 ["Deny. There seemed to be rational explanations for tardiness." "Deny. That letter dated April 10, 2008, was by no means a statement of 'problems....” "Admit. Thomas Schellenberg was also present."  "Admit, first position only."]

Denial "on advice of counsel" is an unequivocal denial.

Holguin v. Superior Court (1972), 22 Cal.App.3d 812, 820 (fn.9).

"As framed, denied" is an unequivocal denial.

Smith v. Circle P. Ranch (1978), 87 Cal.App.3d 267, 275.

St. Mary v. Superior Court (2014), 223 Cal.App.4th 762

Can deny on information and belief.

Holguin v. Superior Court (1972), 22 Cal.App.3d 812, 819.

Chodos v. Superior Court (1963), 215 Cal.App.2d 318, 323.

Cohen v. Superior Court (1976), 63 Cal.App.3d 184, 187.

Can deny for lack of information and belief.

Holguin v. Superior Court (1972), 22 Cal.App.3d 812, 820.

Cohen v. Superior Court (1976), 63 Cal.App.3d 184, 187.

Allen v. Pitchess (1973), 36 Cal.App.3d 321 ($4,OOO sanctions)

Smith v. Circle P. Ranch (1978), 87 Cal.App.3d 267, 275. [If information available, there is no good reason for denial and sanctions are justified]

Partial denial

Can deny part of request or qualify answer.

Chodos v. Superior Court (1963), 215 Cal.App.2d 318, 322.

Good faith

Can't compel further response when request is denied even where facts are unquestionably true.

Holguin v. Superior Court (1972), 22 Cal.App.3d 812, 820.

Wimberly v. Derby Cycle Corp. (1997), 56 Cal.App.4th 618 [Cannot force admission]

Smith v. Circle P. Ranch Co. (1978), 87 Cal.App.3d 267

Can't compel further response to interrogatories when responses are inconsistent with denials of requests for admissions.

Holguin v. Superior Court (1972) 22 Cal.App.3d 812, 821.

A serious and real contest of the subject matter is a good reason for a denial.

Brooks v.American Broadcasting Co. (1986), 179 Cal.App.3d 500, at p. 511 [at time denial made; Cannot just "hotly contest" an issue; Must be reasonable basis for contesting issue; Must reasonably entertain a good faith belief that will prevail on the issue]

Chodos v. Superior Court (1963), 215 Cal.App. 2d 318, 324.

Haseltine v. Haseltine (1962), 203 Cal. App.2d 48, 61.

Discovery re basis for denial is recourse to suspect denials

See Calif. Judicial Council Form Interrogatory 17.1

Interrogatories regarding factual basis for denial are proper.

Holguin v. Superior Court (1972), 22 Cal.App.3d 812, 821

Zorro Inv. Co. v. Great Pacific Securities Corp. (1977), 69 Cal.App.3d 907.

TOP--- CASES--- CASE OUTLINE ---CONTENTS

OBJECTIONS

WAIVER OF OBJECTIONS

Brigante v. Huang (1993), 20 Cal.App.4th 1569, at p. 1585

Appleton v. Superior Court [dictum in poorly reasoned case re unverified objection]

IMPROPER OBJECTIONS

Objections to entire set reveal a lack of good faith.

Cembrook v. Superior Court (1961), 56 Cal.App.2d 423, 430.

Lack of personal knowledge insufficient if access to knowledge is reasonably available.

Lindgreen v. Superior Court (1965), 237 Cal.App.2d 743, 746.

Chodos v. Superior Court (1963), 215 Cal.App.2d 318, 323.

Complexity or controversy is insufficient objection.

Hillman v. Stultz (1968), 263 Cal.App.2d 848, 887.

Chodos v. Superior Court (1963), 215 Cal.App.2d 318, 323.

Cembrook v. Superior Court (1961), 56 Cal.2d 423, 429.

Ambiguity unless too ambiguous to allow an intelligent reply.

Cembrook v. Superior Court (1961) 56 Cal.2d 423, 429-430.

Lieb v. Superior Court (1962) 199 Cal.App.2d 364, 368.[Opinion request is proper.]

Hillman v. Stultz (1968) 263 Cal.App.2d 848, 887.

Chodos v. Superior Court (1963) 215 Cal.App.2d 318, 322. [may have to consult experts. See above re duty of investiation]

Legal conclusion when mixed question of law and fact.

Burke v. Superior Court (1969), 71 Cal.2d 276, 282. [Request for admission concerning legal question raised in pleading.]

Lieb v. Superior Court (1962), 199 Cal.App.2d 364,368. [may be required to set forth in detail why cannot truthfully admit or deny if strictly legal issue.]

Facts known to propounder of request.

Hillman v. Stultz (1968), 263 Cal.App.2d 848, 885.

TOP--- CASES--- CASE OUTLINE ---CONTENTS

PROTECTIVE ORDER[C.C.P. §2033.080]

Brigante v. Huang (1993), 20 Cal.App.4th 1569, at p. 1580, p.1588 [separate motion unnecessary]

WITHDRAWAL OF ADMISSIONS

Minimal showing required
New Albertsons, Inc. v. Superior Court (Shanahan) (2008),  168 Cal.App.4th 1403 [ “We conclude that any doubts in ruling on a motion to withdraw or amend an admission (Code Civ. Proc., § 2033.300) must be resolved in favor of the moving party. The record here does not clearly establish that Albertsons’s mistake in admitting the matter was inexcusable or show that the withdrawal of the admission would substantially prejudice the Shanahans, so the policy in favor of trial on the merits compels the conclusion that the motion to withdraw the admission should have been granted.]

AMENDMENT OF ADMISSIONS

Greater showing than for normal discovery devices

Jahn v. Brickley(1985), 168 Cal.App.3d 399 [Adm. > discovery; Std = amendment of pleading; $ compensation for expenses incurred due to amendment ]

Schultz v. Mutch(1985), 165 Cal.App.3d 66, 79

Guzman v. General Motors (1984), 154 Cal.App.3d 438,444 fn.5

Cohen v. Superior Court (1976), 63 Cal.App.3d 184, 187

No ongoing duty to amend or update

Wimberly v. Derby Cycle Corp. (1997), 56 Cal.App.4th 618, 635 [court may consider subsequent knowledge and efforts to modify to correct erroneous denial in determining whether there was good reason for the initial denial]

Burch v. Gombos
(2000), 82 Cal.App.4th 352, 355,359 [Motion in limini based on early admission that defendant had no evidence denied. At p.352 "We hold that respondents had no duty to update their response to the request for admission when they subsequently discovered such evidence."
To amend or withdraw admission, must show mistake, inadvertence or excusable neglect; i.e. not change of facts]


DEEMED ADMITTED MOTION IF NO TIMELY RESPONSE

Mandatory monetary sanctions regardless of ruling [C.C.P. §2033.280(c)]

St. Mary v. Superior Court (2014), 223 Cal.App.4th 762  [monetary sanctions set aside; basis of decision was abuse of discretion due to conversion of deemed admitted motion into motion for further responses]
Tobin v. Oris (1992), 3 Cal.App.4th 814

Courtesy Claims Service v. Superior Court(1990), 219 Cal.App.3d 52

Appleton v. Superior Court(1988), 206 Cal.App.3d 632

Mandatory granting of motion [C.C.P. §2033.280(c)]
UNLESS

proposed response
served before hearing
in substantial compliance with C.C.P. 2033.220
St. Mary v. Superior Court (2014), 223 Cal.App.4th 762


"substantial" relates to the content of the response in relation to requirement of statute

St. Mary v. Superior Court (2014), 223 Cal.App.4th 762.  Substantial compliance is based on the meaning, objectives and purpose of the statute. The response must provide essential information but is not required to satisfy every detail and technicality.  “... actual compliance is not required where the proposed response is facially a good-faith effort to respond to RFAs in a manner that is substantially Code-compliant.” The Court concluded the responses were substantially compliant when they were verified, filed prior to hearing, majority were code compliant, and  “most of the balance” contained “meaningful, substantive responses.”

Tobin v. Orvis(1992), 3 Cal.App.4th 814, 827-828, [the court discussed the substantial compliance concept as relating to content though it suggested any problem with inadequate responses should be the subject of a motion to compel further responses. [See fn.25 at p.828]

Courtesy Claims Service v. Superior Court(1990), 219 Cal.App.3d 52

Response. C.C.P. 2033.220: 3 options for response: admit, deny, or lack information;

St. Mary v. Superior Court (2014), 223 Cal.App.4th 762


Objections covered in C.C.P. §2033.230

Writing under oath: C.C.P. 2033.210(a)
Separate as to each request: C.C.P. 2033.210(a)

Allen-Pacific, Ltd. v. Superior Court(1997) [lack of verification = no response; grant deemed admitted motion]
Courtesy Claims Service v. Superior Court(1990), 219 Cal.App.3d 52
Brigante v. Huang at p.1569
Tobin v. Oris (1992), 3 Cal.App.4th 814 at p.827

Response limited to answers per statute

Substantially complies with C.C.P. 2033.220
i.e. No objections per .230

Mandatory denial of deemed admitted motion if responses prior to hearing in substantial compliance with statute

Tobin v. Oris (1992), 3 Cal.App.4th 814

Time cannot be shortened for hearing on motion that matters be deemed admitted

Demyer v. Costa Mesa Mobile Home Estate(1995), 36 Cal.App.4th 393, 395 [Formal notice and statutory time period to file responses are substantive provisions of law that irrevocably affect rights in that there is no relief per current case law. "Even the most compelling reason to shorten time for an admissions motion...does not justify eliminating the ameliorative function of subdivision (k)."]

TOP--- CASES--- CASE OUTLINE ---CONTENTS


RELIEF FROM ADMISSIONS FOR FAILURE TO RESPOND

Wilcox v. Birtwhistle (1999), 21 Cal.4th 973 [Matters deemed admitted due to lack of verification of responses. Prompt motion for relief after windfall summary judgment. Held: "...a party may withdraw or amend admissions deemed admitted for failure to respond upon a showing of 'mistake, inadvertence or excusable neglect' and no substantial prejudice pursuant to (m)" C.C.P,§ 2033(m) applies to all admissions including those deemed admitted for failure to respond pursuant to (k). The case raises issues as to the validity of prior appellate decisions to the contrary that restricted relief: e.g. Courtesy Claims; St.Paul; Allen-Pacific, Demyers, Brigante, Tobin]

See the following

Allen-Pacific Ltd v. Superior Court (1997), 57 Cal.App.4th 1546,  p.1551[dictum] 1555
Courtesy Claims Services v. Superior Court(1990), 219 Cal.App.3d 52
Tobin v. Orvis(1992), at p.827
St. Paul Fire & Marine v. Superior Court(1992),2 Cal.App.4th 851 [w/d or amend provisions don't apply to allow relief from waiver]
Workman v. Superior Court (19 ), 176 Cal.App.3d 493 [prior law; no inherent equitable power to grant relief beyond time permitted in statute]
Cf. Brigante v. Huang(1993), at p.1584 [No C.C.P,§ 473 relief but 2033(e) protective order available]
Demyer v. Costa Mesa Mobile Home Estates

Cf C.C.P,§ 473 does not apply to relief from admissions
Allen -Pacific Ltd. v. Superior Court(1997),  57 Cal.App.4th 1546 p.1551, 1555
Brigante v. Huang at p.1584
Tobin v. Oris at p.827
St. Paul Fire & Marine v. Superior Court 2 Cal.App.4th
Demyer v. Costa Mesa Mobile Home Estates
Cf. Santa Patricia Investments Inc. v. Superior Court (1991), 231 Cal.App.3d 113. [REVIEW GRANTED 1991. tr ct denial of relief on grounds it had no power to do so rev'd; consider per 2033.300]

TOP--- CASES--- CASE OUTLINE ---CONTENTS


NO EVASION OF ADMISSIONS BY VOLUNTARY DISMISSAL

Miller v. Marina Mercy Hospital(1984), 157 Cal.App.3d 765 [admissions of all issues terminates right to dismiss per §583.1; admissions of all issues = trial]



NO EXTENSION OF TIME TO COMPLY WITH 2033(k) [2033.280]ON DEEMED ADMITTED MOTION

Allen-Pacific Ltd. v. Superior Court(1997),  57 Cal.App.4th 1546 [ tr ct re'vd for granting relief after continuing hearing to comply w/ 2033(k) by obtaining verification; party argued that the time could not be extended which was the effect of the continuance of the hearing.; ct app did not address the issue but implicitly concluded an extension was improper; ct app did approve of protective orders per 2033(e) per Brigante which section provides for such extensions]

Courtesy Claims Services v. Superior Court

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PROTECTIVE ORDER TO AVOID DEEMED ADMITTED ORDER

Motion for protective order [C.C.P.§2033.080]

Brigante v. Huang (1993), 20 Cal.App.4th 1569 at p.1580 [tr ct discretion to issue pro order to grant relief from RFA; may have to be made within the 30 day limit for responses]

Allen-Pacific Ltd v. Superior Court(1997) 57 Cal.App.4th 1546 [approving but limiting and not applying Brigante]

Opposition to deemed admitted motion treated as mot for pro order

Allen-Pacific Ltd v. Superior Court(1997) 57 Cal.App.4th 1546, p.1556{...a trial court can treat opposition to a motion to deem admitted matters specified in an RFA as a request for a protective order under subdivision (e)(Brigante) ..." but not in this case due to the facts]

Brigante v. Huang(1993), 20 Cal.App.4th 1569


EXTRINSIC FRAUD BASIS FOR RELIEF

Martin v. Tony & Susan Alamo Foundation(1985) [depublished]

TOP--- CASES--- CASE OUTLINE ---CONTENTS

SANCTIONS [Expenses for proving facts at trial [C.C.P.§2033.420]

In re Estate of Dorothy Manuel (Cal. App. Second Dist., Div. 3; August10. 2010) 187 Cal.App.4th 400; [113Cal.Rptr.3d 448, 2010 DJDAR 12445]. Sanctions for unreasonable denial of a request for admission pursuant to C.C.P. §2033.420 cannot be assessed against counsel, only the party, based, in part, upon the clear wording of C.C.P.§2033.420(a). ["...an order requiring the party to whom the request was directed to pay...."

Brooks v. American Broadcasting Co.(1986), 179 Cal.App.3d 500

Smith v. Circle P Ranch(1978), 87 Cal.App.3d 267

Statutory Elements

Failure to admit

Stull v. Sparrow (2001), 92 Cal.App.4th 860 [admission on eve of trial after prior denial is sufficient to avoid sanction under C.C.P,§ 2033 but sanctions may still be appropriate under C.C.P. § 2023]

Proof of truth or genuineness

Barnett v. Penske Truck Leasing (2001), 90 Cal.App.4th 494 [Trial not required; Def. prevailed on summary judgment; admission re defendant did not cause accident or injury and there was no defect in a lift gate; pointing out the inadequacy of plaintiff's evidence = proof]

Wagy v. Brown
(1994), 24 Cal.App.4th 1[preparation for trial or arbitration alone is not the equivalent of proof at trial when the matter is admitted prior to the trial]

Stull v. Sparrow
(2001), 92 Cal.App.4th 860 [followed Wagy and allowed stipulation on eve of trial to defeat claim for sanctions since no evidence or proof was required]

Reasonable expenses & atty.fees in making proof

Barnett v. Penske Truck Leasing (2001), 90 Cal.App.4th 494 [$1362 in expert fees and $6874 attorney's fees incurred ; $5362 awarded

Wimberly v. Derby Cycle Corp.
(1997), 56 Cal.App.4th 618, 638 [cannot award fees incurred prior to denial]

Garcia v. Hyster Co.
(1994), 28 Cal.App.4th 724 [time period of work for which compensation is appropriate runs from denial; only cost of proving matters covered by the admission]

Brooks v. American Broadcasting
(1986), 179 Cal.App.3d 500, at p.512: [expenses incurred prior to improper denial may not be recoverable]

Award unless (i.e. B of P may be on opponent)

a. Objection sustained or further response waived by failure to move w/in 45 days

Wimberly v. Derby Cycle Corp. (1997), 56 Cal.App.4th 618, 636 [not entitled to costs on matter to which objection made if no motion to compel further response made]

American Federation of State, County & Municipal Employees v. Metropolitan Water Dist. (2005)126 Cal.App.4th 247, 266,  24 Cal.Rptr.3d 285. If, in addition to objections and a "boilerplate statement '[w]ithout waiving these objections'," all requested admissions are denied or admitted, a party is not required to move to compel further responses and obtain a ruling on the objections in order to recover monetary compensation for an improper denial. The court distinguished the Wimberly case.

"The defendant's response to the request for admission in Wimberly was a total objection coupled with a partial denial, leaving the remainder of the request for admission unanswered. Therefore, the objection could have been ruled on by the trial court in response to a motion to compel. By contrast, here after objecting to the entire request for admission, the Local's admissions and/or denials provided complete responses to the requests, thus leaving nothing to address in a motion to compel."

b. Admission of no substantial importance

Wimberly v. Derby Cycle Corp. (1997), 56 Cal.App.4th 618, 637 [ direct relationship to one of the central issues i.e. one that would alter result; defect or causation issue in products liability case]

Brooks v. American Broadcasting 
(1986), 179 Cal.App.3d 500 at p.509. [Whether party was over centerline in highway; Direct relationship to central issue; Need not determine ultimate issue]

Rosales v. Thermex-Thermatron(1998), 66 Cal. App. 4th 408 [relevant to issue that could alter result]

c. Reasonable ground to believe would prevail on the matter

Wimberly v. Derby Cycle Corp. (1997), 56 Cal.App.4th 618 [failure to designate own expert or call co.=defendant's experts shows lack of reasonable ground; no investigation when lack personal knowledge and have sources available]

Brooks v. American Broadcasting (1986) at p. 511 [at time denial made; Cannot just "hotly contest" an issue; Must be reasonable basis for contesting issue; Must reasonably entertain a good faith belief that will prevail on the issue]

d. Other good reason for failure to admit

Brooks v. American Broadcasting (1986), 179 Cal.App.3d 500 at p.512-13. [Having an eye witness to testify contrary to the requested admission is good reason to deny it. 3 factors supported tr.ct determination that there were no good reasons for another denial: Highway Patrol report supporting fact, lack of investigation, and failure to contest at trial.
Brooks v. American Broadcasting (1986) at p.509. dictum suggests
Despite a reasonable investigation at the time of denial, the party might reasonably view the matter as relatively trivial or not appreciate the issue involved a central issue. Cf.Smith at p. 273 and Burke at p.282 cases suggesting matters should be admitted unless there is a good faith intent to contest the matters at trial.

Failure to contest at trial implies no good reason for the failure to admit

Brooks v. American Broadcasting (1986), 179 Cal.App.3d 500 at p.510-11 fn.6

Wimberly v. Derby Cycle Corp. (1997), 56 Cal.App.4th 618


USE AT TRIAL

Judicial admission: not evidentiary admission that can be controverted [ C.C.P.  § 2033.410(a) ]

Brigante v. Huang  (1993), 20 Cal.App.4th 1569 at p.1578

Valerio v. Andrew Youngquist Construction (2002)103 Cal.App.4th 1264 , 127 Cal.Rptr.2d 436

Milton v. Montgomery Ward & Co. (1973), 33 Cal.App.3d 133.

Jahn v. Brickley (1985), 168 Cal.App.3d 399, [repudiated admission can be used for impeachment]

Burch v. Gombos (2000), 82 Cal.App.4th 352, 359 [conclusively established]

Fredericks v. Kontos Industries (1987), 189 Cal.App.3d 272, 276

Court interprets and determines the scope and effect of the admission

Burch v. Gombos (2000), 82 Cal.App.4th 352, 359-60 [Admission by defendant at beginning of case that it had no evidence on an issue did not prevent the defendant from producing evidence at trial that it discovered after admission. Motion in limini based on admission denied.]

Valerio v. Andrew Youngquist Construction (2002)103 Cal.App.4th 1264 , 127 Cal.Rptr.2d 436 [Clear admission not subject to interpretation. Tr ct rev'd for making finding of no contract contrary to admission in pleading and to requests for admissions which assumed the fact of a written contract in their phrasing. "... no reason for the court to interpret the admission in order to resolve an ambiguity or reflect Valerio's reasonable understanding of the facts. Simply put, Valerio filed a mistaken response that he never later moved to amend or withdraw." However, on remand, a motion to amend could be made to avoid the admission on the retrial.]

Fredericks v. Kontos Industries
(1987), 189 Cal.App.3d 272 [promise to pay admitted; but evidence and finding of precondition of performance not precluded by admission of duty to pay. Can't contradict admission but can explain it.(p.278)]

Milton v. Montgomery Ward & Co. (1973) 33 Cal.App.3d 133, 138


Limited to pending action [C.C.P. §2033.410(b)]

Shepard & Morgan v. Lee & Daniel (1982) [not binding re cross complaint]

Motion in limini
Shepard & Morgan v. Lee & Daniel (1982) [procedure used in trial court]

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