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self-study / Evidence

Jan. 26, 2023

Utilizing the power of requests for admission

Robert A. Roth

Partner, Complex Appellate Litigation Group

Certified Appellate Specialist


Robert has decades of experience primarily handling family law appeals.

At the Complex Litigation Appellate Group, our work spans a wide variety of substantive topics and every imaginable procedural scenario. In the course of this work, we sometimes come upon litigation strategies that appear to be underutilized by trial counsel. This article reveals ways to use California's request for admissions scheme to gain a litigation advantage.

Requests for admissions are "designed not so much to 'discover' the facts and to expedite trial preparation as to render it unnecessary to try an otherwise triable issue of fact or law." St. Mary v. Superior Court, 223 Cal. App. 4th 762, 774 (2014). Requests for admission are not restricted to facts or documents, but "apply to conclusions, opinions, and even legal questions." City of Glendale v. Marcus Cable Associates, LLC, 235 Cal. App. 4th 344, 353 (2015).

Requests for admission are proper even if they seek "the admission of a controversial matter, or one involving complex facts, or calls for an opinion." Bloxham v. Saldinger, 228 Cal. App. 4th 729, 752 (2014). Answers are not limited to matters within the personal knowledge of the responding party, but must also cover what would be revealed through a reasonable investigation. Wimberly v. Derby Cycle Corp., 56 Cal. App. 4th 618, 634 (1997). An admission is generally considered conclusive, and no contradictory evidence may be introduced. Murillo v. Superior Court, 143 Cal. App. 4th 730, 736 (2006).

A request for admission can be combined with Form Interrogatory 17.1 (Judicial Council Form DISC-001) for powerful results. Form Interrogatory 17.1 provides that if a response to a request for admission "is not an unqualified admission," the responding party must disclose all facts, witnesses, and documents supporting the response.

For example, if you anticipate that a party is going to contend that your client breached her fiduciary duties in relation to a particular transaction, you can request an admission that the client did not breach her fiduciary duties by entering into the transaction. This forces the responding party to either admit that there was no breach, or to fully reveal the evidentiary basis for the claim.

Note that while there is case law to the effect that there is no "ongoing duty to update responses" to a request for admission, Burch v. Gombos, 82 Cal. App. 4th 352, 359 (2000), that loophole can be largely closed by propounding "a supplemental interrogatory to elicit any later acquired information bearing on all answers previously made by any party" in response to Form Interrogatory 17.1. Cal. Code Civ. Proc. § 2030.070(a). Failure to timely amend the form interrogatory response can potentially be fatal to a claim. Union Bank v. Superior Court, 31 Cal.App.4th 573, 580 (1995). But see People ex rel. Government Employees Ins. Co. v. Cruz, 244 Cal. App. 4th 1184, 1194 (2016) [discussing defenses to request that interrogatory responses be deemed binding].

This sets the stage for a motion in limine to exclude evidence or argument not disclosed, pursuant to Form Interrogatory 17.1, in connection with a denied request for admission. Motions in limine are used to preclude the presentation of evidence that is inadmissible, and usually excludes the challenged evidence and directs counsel, parties, and witnesses not to refer to the excluded matters during trial. People v. Morris, 53 Cal.3d 152, 188 (1991). Such motions permit more careful consideration of evidentiary issues than would take place in the heat of battle during trial, and enhance the efficiency of trials and promote settlements by resolving potentially critical issues at the outset. Id. A motion in limine does not address allegations of pleadings or specific issues, but is instead directed toward specific evidence. It allows a party to obtain an order excluding evidence in advance of trial on any ground which would be sufficient for an objection. Dong v. Board of Trustees, 191 Cal. App. 3d 1572, 1584 (1987).

The power of Form Interrogatory 17.1 is illustrated by the case law. For example, in Union Bank v. Superior Court, plaintiffs brought claims for fraud, misrepresentation, conspiracy and breach of fiduciary duty in connection with a loan used for the lease of medical equipment. 31 Cal. App. 4th 573, 577-579 (2001). The appellate writ proceedings centered on two requests for admission: "Admit that [defendant] committed no fraud or deceit upon you," and "Admit that [defendant] did not participate in any conspiracy to defraud you." Plaintiff's responses to both requests were: "Plaintiffs believe that [defendant] knowingly and fraudulently took the assignment of all the assets of NMR Investors Fund I to secure the loan it made with United Medical Leasing Company, Inc. [¶] Plaintiffs reserve the right to further respond to this interrogatory." The appellate court held that plaintiff's factually devoid interrogatory responses mandated entry of summary judgment against them, reversing a trial court's denial of summary judgment.

In Gevel v. Chacham, a party's factually void responses to Form Interrogatory 17.1, after denying requests for admission, was held to be a sufficient basis for summary judgment. Cal. Ct. App., July 3, 2002, No. B143130, 2002 WL 1445264. Similarly, in Richardson v. Ferentz, a summary adjudication was affirmed based solely on deemed admissions, due to the fact that the plaintiff's denial of requests for admission were not accompanied by responses to Form Interrogatory 17.1 providing the factual and evidentiary basis for the denials. Cal. Ct. App., Oct. 31, 2007, No. G036620, 2007 WL 3194123.

In Arax v. Watershed Investments, Inc., an unpublished Fifth District case, the court held that "in relation to all responses other than unqualified admissions, form interrogatory No. 17.1 required plaintiffs to 'state all facts' upon which their denials or other nonadmissions were based; the identities and contact information of all persons with knowledge of those facts; and all documents supporting the responses, plus the identities and contact information of any persons in possession of the documents. Plaintiffs' original responses concerning their nonadmission of lack of title or ownership were, 'Plaintiffs hold title to the property' and 'Plaintiffs own the property.'" These responses were deemed "objectively deficient," and justified imposition of terminating sanctions by the trial court. Cal. Ct. App., Sept. 2, 2020, No. F077056, 2020 WL 5229164, at *10. Likewise, in Soofi v. Contreras Law Firm, a legal malpractice case, the appellate court affirmed a trial court's imposition of terminating sanctions against the plaintiff for, inter alia, deficient responses to form interrogatory 17.1. Cal. Ct. App., Mar. 25, 2021, No. D076884, 2021 WL 1134832.

In Williford v. King, monetary sanctions were affirmed against a litigant who denied a request for admission but failed to provide any supporting information in response to interrogatory No. 17.1. Cal. Ct. App., Feb. 22, 2018, No. F073650, 2018 WL 1008056. Again, in Mallard v. Progressive Choice Ins. Co., it was held that sanctions were justified when requests for admission were denied but no facts, witnesses or documents were identified in a Form Interrogatory 17.1 response to support the denials. Cal. Ct. App., Oct. 26, 2010, No. G042778, 2010 WL 4210113. Carefully crafted, requests for admission together with Form Interrogatory 17.1 can be weaponized to narrow the issues for trial, undercut an opponent's theories, and strengthen the client's position during appellate review. Sophisticated counsel can utilize this strategy to create an edge in litigation.

Robert A. Roth is of counsel with the Complex Appellate Litigation Group LLP, an appellate boutique with offices in San Francisco, Los Angeles, and San Diego. With over 30 years' experience as an appellate practitioner, he is widely regarded as one of the leading family law appellate specialists in California. Find out more about Robert and the Complex Appellate Litigation Group LLP at Appellate Zealots is a monthly column on recent appellate decisions and appellate issues written by the attorneys of the Complex Appellate Litigation Group LLP.


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