Enough with the "gotcha" Requests for Admissions and the procedural tyrants that use them


Requests for Admissions - in the hands of reasonable practitioners a tool for taking undisputed facts off the table.  But, like the other discovery tools available in California, they, too, have been transformed into tools to abuse opponents.  In St. Mary v. Superior Court (January 31, 2014), the Court of Appeal (Sixth Appellate District), granting a petition for a writ of mandamus directed at a discovery ruling (a true rarity), explained the full procedural framework related to Requests for Admissions.  The discussion by the Court is truly illuminating and is a must read for civil litigators (particularly ones concerned with civility).

A recap of the history is in order.  Defendants propounded 119 requests for admissions (RFAs) directed to St. Mary.  After making two written requests for a two-week extension to respond, and after Schellenberg denied the extension request one day after the due date for the responses, counsel served responses to the RFAs.  They were served four days late.  Four days later, defendants, without any attempt to meet and confer, filed a motion with the trial court requesting that the 119 RFAs in their entirety be deemed admitted, pursuant to Code of Civil Procedure section 2033.280, subdivision (b).  The court granted the Motion as to Defendant Schellenberg's RFAs, deemed 41 of the 105 RFAs admitted, and awarded sanctions in favor of Defendants.  The court’s order omitted any reference to the Motion to deem admitted the 14 RFAs propounded by Defendant Mills.

Plaintiff sought a writ of mandate directing the superior court to vacate its order deeming the 41 Schellenberg RFAs admitted.  Plaintiff contended that Defendants' Motion was defective in that it did not constitute a motion to compel further responses to RFAs under section 2033.290.  Instead, according to Plaintiff, Defendants included new matter for the first time in their reply papers—namely, argument directed to specific Schellenberg RFAs that Defendants claimed were deficient—and that the court granted the Motion based upon the presentation of such new arguments.  Plaintiff argued that the impact of the court’s order was extremely significant because, among other things, six of the RFAs deemed admitted are specifically directed to a potential statute of limitations defense asserted by real parties.

The Court summarized the scenarios that can occur when RFAs are not timely answered:

Under the RFA procedure postdating the Civil Discovery Act, a propounding party must take affirmative steps—by bringing a formal “deemed admitted” motion—to have RFAs to which timely responses are not received deemed admitted.  In the event responses to RFAs are not timely served, responding party waives any objections thereto (§ 2033.280, subd. (a)), and “[t]he requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction” (id., subd. (b)).  Unless the court determines that the responding party “has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220,” it must order the RFAs deemed admitted.  (Id., subd. (c).)  “[A] deemed admitted order establishes, by judicial fiat, that a nonresponding party has responded to the requests by admitting the truth of all matters contained therein.”  (Wilcox, supra, 21 Cal.4th at p. 979.)  The court must also impose monetary sanctions upon the party and/or the attorney for the failure to serve a timely response to the RFAs.  (§ 2033.280, subd. (c).)  But a responding party’s service, prior to the hearing on the “deemed admitted” motion, of substantially compliant responses, will defeat a propounding party’s attempt under section 2033.280 to have the RFAs deemed admitted.  (Tobin v. Oris (1992) 3 Cal.App.4th 814, 827 (Tobin).)  As one court put it:  “If the party manages to serve its responses before the hearing, the court has no discretion but to deny the motion.  But woe betide the party who fails to serve responses before the hearing.  In that instance the court has no discretion but to grant the admission motion, usually with fatal consequences for the defaulting party.  One might call it ‘two strikes and you’re out’ as applied to civil procedure.”  (Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 395-396, fns. omitted (Demyer).)

Slip op., at 13-14.  Next, to emphasize where the trial court erred, the reviewed again the types of motions applicable to RFAs:

We first address the nature of the Motion brought by real parties, because resolution of this issue is directly germane to the propriety of the challenged order.  As discussed ante, there are three types of motions that a party propounding RFAs may initiate:  (1) motions to deem RFAs admitted based upon the responding party’s failure to serve any responses at all in a timely fashion (§ 2033.280, subd. (b)); (2) motions to compel further responses to RFAs where the responses are claimed to be inadequate or the objections improper (§  2033.290, subd. (a)); and (3) motions to deem responses admitted and/or for sanctions based upon the responding party’s disobedience of an order compelling further responses (id., subd. (e)).  It is clear for a number of reasons that the Motion was of the first-described type pursuant to section 2033.280, subdivision (b).

Slip op., at 15-16.  After noting that nowhere in the original Motion did the Defendants indicated that they sought anything other than to deem the RFAs admitted (e.g., there was no declaration showing that a meet and confer occurred as would be required under a motion to compel further responses), the Court then examined whether the tardy responses of Plaintiff were in "substantial compliance" with 2033.220.  The Court began by examining authority for what constitutes "substantial compliance" in the discovery context.  Then the Court scrutinized the trial court's approach, finding it lacking:

We turn to examine whether St. Mary’s proposed response to the Schellenberg RFAs substantially complied with section 2033.220.  Initially, we take issue with respondent court’s approach.  The court examined the individual RFA responses, determined that some 41 of them were not Code-compliant, and found—explicitly in its announced reasoning at the hearing, and implicitly in the subsequent order—that the remaining 64 RFA responses did, in fact, comply with section 2033.220.  It therefore deemed admitted the RFAs corresponding with the 41 responses it determined to have been noncompliant, implicitly denying the deemed admitted Motion as to the responses to the remaining 64 RFAs. 

We find no authority for this piecemeal approach to adjudicating a tardy, proposed RFA response filed by a responding party prior to the hearing on a deemed admitted motion.  Subdivision (c) of section 2033.280 requires the court to evaluate whether the “proposed response to the requests for admission” substantially complies with section 2033.220.  (Italics added.)  This suggests that the court evaluate qualitatively the proposed response to RFAs in toto to determine whether it substantially complies with the Code.  It does not permit the court to segregate each individual RFA response for the purpose of finding that portions of the document are Code-compliant (and will therefore be accepted), while concluding that other portions are noncompliant (and will thus be rejected).  Furthermore, the fact that there is an effective statutory vehicle by which a propounding party may seek a court order compelling a responding party to cure individual RFA responses deemed not to be in compliance with section 2033.220—namely, a motion to compel further responses under section 2033.290—offers additional support for our view that the court’s seriatim approach to St. Mary’s proposed response to the RFAs was improper.  We therefore conclude that the court’s misapplication of section 2033.280 in granting the deemed admitted Motion in part and denying it in part constituted an abuse of discretion.  (See City of Sacramento v. Drew, supra, 207 Cal.App.3d at p. 1297 [“[a]ction that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an ‘abuse’ of discretion.”].){C}{C}{C}

Slip op., at 18-19.  The Court next rejected the trial court's conclusion that language in addition to "admit" or "deny" is improper in a response to RFAs.  The Court explained that reasonable qualifications are proper.

In several of the RFAs reviewed by the Court, the Court noted that Plaintiff included fairly reasonable, but occasionally very long, explanations for denying various propositions.  As to this practice, the Court had some friendly advice:

As we read St. Mary’s response to this RFA, we understand that she does not deny receiving the referenced letter, but otherwise denies that the letter contained the substance as described in the RFA.  If our understanding is correct, a more adroit response to the RFA would have been, in substance, “Admit receipt of the letter on or about April 9, 2008, but otherwise deny.”  (Since Schellenberg concurrently served upon St. Mary a set of interrogatories asking her to explain any of her responses to RFAs that were not unqualified admissions, she could have explained the reason for her partial denial of RFA number 91 in her interrogatory response.)  If Schellenberg believes that St. Mary’s response to this RFA, as phrased, is legally insufficient, the appropriate method of challenging it would be for him to seek an order compelling a further response under section 2033.290, which motion would be preceded by his attempting to resolve the dispute informally under subdivision (b). 

Slip op., at 21-22, fn. 21.  The Court then explained how the trial court's approach incorrectly looked at the sufficiency of each response, rather than question of whether the responses "in toto" were substantially compliant:

The court deemed admitted 41 specific RFA responses that it concluded were not Code-compliant, rather than considering whether the proposed response to the Schellenberg RFAs as a whole substantially complied with section 2033.220—thereby effectively converting real parties’ deemed admitted Motion under section 2033.280 into a motion to compel further responses under section 2033.290.  The court is authorized by statute to deem particular requests admitted if the responding party fails to comply with an order compelling further responses to RFAs.  (§ 2033.290, subd. (e).)  Here, the court, at real parties’ urging, bypassed four steps of the statutorily required process by deeming admitted the responses to 41 RFAs in St. Mary’s proposed response:  There was no prior (1) motion to compel further responses (§ 2033.290. subd (a)); (2) order compelling further responses; (3) noncompliance with an order compelling further responses; or (4) motion to deem specific RFAs admitted based upon noncompliance with a prior order compelling further RFA responses (id., subd (d)). 

Slip op., at 24.  If there was any doubt about the view of the Court, it removed all doubt by explaining the policies guiding its decision:

We do not read the statutes governing RFAs in a vacuum.  The purpose of the RFA procedure is to expedite trials and to eliminate the need for proof when matters are not legitimately contested.  (Cembrook, supra, 56 Cal.2d at p. 429; Studll, supra, 92 Cal.App.4th at p. 864.)  The RFA device is not intended to provide a windfall to litigants.  Nor is the RFA procedure a “gotcha” device in which an overly aggressive propounding party—who rejects facially reasonable requests for a short discovery extension and thereafter files the wrong discovery motion after service of a slightly tardy proposed RFA response that is substantially Code-compliant—may obtain a substantive victory in the case by having material issues deemed admitted.

Slip op., at 24-25.

We could probably use good reminders of the actual purpose of discovery tools on a more frequent basis these days.