One of the most effective methods of winning a case in civil litigation, short of prevailing at a trial, is by using the combination of a common discovery tool followed by a case-dispositive motion. A request for admission (RFA) can result in conclusively establishing elements of an action--or disproving their existence--and when followed by a motion for summary judgment (MSJ), a party can prevail in a sure and efficient manner. This article and self-study quiz will inform bench officers and practitioners about how the RFA-MSJ one-two punch works. The article also examines ways attorneys can counter this litigation tactic.
RFA
Both a plaintiff and a defendant may propound an RFA on an opponent. Under California Code of Civil Procedure section 2033.010 (all further statutory references are to this code), a party can request the other litigant "admit the genuineness of specified documents, or the truth of specified matters of fact, opinion relating to fact, or application of law to fact. A request for admission may relate to a matter that is in controversy between the parties."
Such a request will often ask a party to admit mundane matters necessary for a plaintiff to prove an action (or for a defendant to prove an affirmative defense), but which are not subject to dispute. For example, a party's ownership of the property at issue in an unlawful detainer eviction action is required for the plaintiff to have standing, and the defendant must prove the property's location to establish a component of a rent control defense, yet usually there will be no question regarding such issues. Establishing such facts by way of a response to an RFA will result in eliminating the need to bring witnesses and records to court at trial. However, an RFA will often request the admission of matters both essential to prevailing and that are highly disputed, leading to the possibility of subsequently filing an MSJ based on the responses or lack thereof.
A party served with an RFA must either promptly move for a protective order (§ 2033.080), or within 30 days of service of the RFAs (§ 2033.250), respond in writing under oath and separately to each RFA (§ 2033.210, subd. (a)). The party must additionally "answer the substance of the requested admission, or set forth an objection to the particular request." (§ 2033.210, subd. (b).)
Responses to an RFA must be "complete and straightforward." (§ 2033.220, subd. (a).) A responding party is required to admit as much of the request as is true, "either as expressed in the request itself or as reasonably and clearly qualified by the responding party" (§ 2033.220, subd. (b)(1)); "[d]eny so much of the matter involved in the request as is untrue" (§ 2033.220, subd. (b)(2)); or "[s]pecify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge" (§ 2033.220, subd. (b)(3)). Under section 2033.220, subdivision (c), "If a responding party gives lack of information or knowledge as a reason for a failure to admit all or part of a request for admission, that party shall state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information known or readily obtainable is insufficient to enable that party to admit the matter."
The Court of Appeal in St. Mary v. Superior Court, 223 Cal.App.4th 762, 774-775 (2014) (St. Mary), did a good job explaining the function and background of an RFA.
RFAs are different from other civil discovery tools such as depositions, interrogatories and requests for documents. "Most of the other discovery procedures are aimed primarily at assisting counsel to prepare for trial. Requests for admissions, on the other hand, are primarily aimed at setting at rest a triable issue so that it will not have to be tried. Thus, such requests, in a most definite manner, are aimed at expediting the trial." (Cembrook v. Superior Court (1961) 56 Cal.2d 423, 429, 15 Cal.Rptr. 127, 364 P.2d 303 [. . .]; see also Stull v. Sparrow (2001) 92 Cal.App.4th 860, 864, 112 Cal.Rptr.2d 239 [...] [instead of "seeking to uncover information, [RFAs] seek to eliminate the need for proof"].) As has been explained in one treatise: "The admission request differs fundamentally from the other five discovery tools (depositions, interrogatories, inspection demands, medical examinations, and expert witness exchanges). These devices principally seek to obtain proof for use at trial. In marked contrast, admission requests seek to eliminate the need for proof: '[T]he purpose of the admissions procedure . . . . is to limit the triable issues and spare the parties the burden and expense of litigating undisputed issues.' [...]." (Hogan & Weber, 1 Cal. Civil Discovery (2d ed. 2005) § 9.1, p. 9-2, fns. omitted, quoting Shepard & Morgan v. Lee & Daniel, Inc. (1982) 31 Cal.3d 256, 261, 182 Cal.Rptr. 351, 643 P.2d 968.)
Request to have RFA deemed admitted
"Matters that are admitted or deemed admitted through RFA discovery devices are conclusively established in the litigation and are not subject to being contested through contradictory evidence. (Murillo v. Superior Court (2006) 143 Cal.App.4th 730, 736, 49 Cal.Rptr.3d 511.)" (St. Mary, supra, 223 Cal.App.4th at p. 775.)
A party responding to an RFA must thus be very careful as to what is admitted, and the same goes for providing an incomplete answer or failing to verify the responses under penalty of perjury. When litigating the sufficiency of responses, a court must be satisfied responses are in substantial compliance with the statute. (See St. Mary, supra, 223 Cal.App.4th at p. 782.) Unverified responses to RFAs are not in substantial compliance with the law. (Allen-Pacific, Ltd. v. Superior Court, 57 Cal.App.4th 1546, 1551 (1997); Appleton v. Superior Court, 206 Cal.App.3d 632, 636 (1988) [unverified responses to RFAs are "tantamount to no response[] at all"].)
When a party provides noncompliant answers to an RFA, or fails to respond within the statutory time to do so, "[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 [...]." (§ 2033.280, subd. (b).) This is known as a motion to deem an RFA admitted. Section 2033.280, subdivision (c) provides, "The court shall make this order, unless it finds that the party to whom the requests for admission have been directed 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."
By stating that a party may move for an order to deem RFAs to be admitted, and "The court shall make this order, unless it finds [that the opposing party has served substantially compliant proposed responses prior to the start of the hearing]" (§ 2033.280, subd. (c), emphasis added), it is likely the Legislature intended that the responding party has the burden of establishing, to the court's satisfaction, the responses complied with the law. (See Tilkey v. All State Ins. Co., 56 Cal.App.5th 521, 534 (2020) ["'The plain meaning [of a statute] controls if there is no ambiguity in the statutory language.' [Citation.]"].)
To ward off an order deeming an RFA as having been admitted, a party can file responses to the RFA that are in substantial compliance with section 2033.220 prior to the start of a hearing on a motion to deem RFAs to have been admitted. When such responses are filed prior to the start of the hearing, the court is barred from entering an order deeming the RFA admitted. (Tobin v. Oris, 3 Cal.App.4th 814, 828 (1992); accord, St. Mary, supra, 223 Cal.App.4th at p. 776.)
Request for relief from an order deeming RFA admitted
Once an order deeming the RFA as having been admitted is entered, it becomes much harder to avoid its deleterious consequences. In contrast to the automatic bar to preventing an order from being entered--when a party files responses prior to the start of the hearing on the motion to deem the RFA as having been admitted--there is no way to secure relief as a matter of right. Instead, the court is given discretion.
Section 2033.300 provides, "(a) A party may withdraw or amend an admission made in response to a request for admission only on leave of court granted after notice to all parties. [⁋] (b) The court may permit withdrawal or amendment of an admission only if it determines that the admission was the result of mistake, inadvertence, or excusable neglect, and that the party who obtained the admission will not be substantially prejudiced in maintaining that party's action or defense on the merits."
The test of whether neglect is excusable, in failing to timely respond to an RFA or in providing an incomplete response, is "whether 'a reasonably prudent person under the same or similar circumstances' might have made the same error." (Bettencourt v. Los Rios Community College Dist., 42 Cal.3d 270, 276 (1986) (Bettencourt).) In ruling on a request for relief, a court must "consider the attorney's overall diligence or lack thereof." (Id. at p. 278.)
An attorney's negligent or otherwise inexcusable mistake regarding compliance with section 2033.220 is not grounds for relief, because "a reasonably prudent person under the same or similar circumstances" would not have made the error. (See Bettencourt, supra, 42 Cal.3d at p. 276.) "[A]s a general rule an attorney's inexcusable neglect is chargeable to the client. [Citation.]" (Carroll v. Abbott Laboratories, Inc., 32 Cal.3d 892, 895 (1982); see also St. Paul Fire & Marine Ins. Co. v. Superior Court (1992) 2 Cal.App.4th 843, 852 [relief under the mandatory attorney fault provisions in § 473, subd. (b), is inapplicable to deemed admissions].) "Counsel's mistake of law on a relatively simple and undebatable matter was not a valid ground for relief. (City of Ontario v. Superior Court (1970) 2 Cal.3d 335, 347 [85 Cal. Rptr. 149, 466 P.2d 693].) Further, the press of an attorney's practice would not warrant relief. (Lyons v. Swope (1957) 154 Cal. App.2d 598, 600 [317 P.2d 121].)" (City of Fresno v. Superior Court, 205 Cal.App.3d 1459, 1467 (1988).)
Parties moving for relief should remind the court that, "Because the law strongly favors trial and disposition on the merits, any doubts in applying section 2033.300 must be resolved in favor of the party seeking relief." (New Albertsons, Inc. v. Superior Court, 168 Cal.App.4th 1403, 1420 (2008).) Another useful quotation was provided by St. Mary, supra, 223 Cal.App.4th at p. 783: "The RFA device is not intended to provide a windfall to litigants. Nor is the RFA procedure a 'gotcha' device."
MSJ
The second punch is delivered by way of an MSJ. The RFA procedure specifically contemplates trials can be avoided by use of an MSJ once a party has the opponent's admissions in hand. (St. Mary, supra, 223 Cal.App.4th at p. 775.) Disposing of a case by granting an MSJ does not deprive a party of the right to jury trial. (Kurokawa v. Blum, 199 Cal.App.3d 976, 991 (1988).) The MSJ process is fairly straightforward.
To prevail on an MSJ, "all the papers submitted" must show that there is no triable issue of material fact, and that a moving party is entitled to a judgment as a matter of law. (§ 437c, subd. (c).) "[T]he summary judgment standard 'is not satisfied by laconic . . . declarations which provide only an ultimate opinion, unsupported by reasoned explanation." (Doe v. Good Samaritan Hospital, 23 Cal.App.5th 653, 663 (2018); see also Bozzi v. Nordstrom, Inc., 186 Cal.App.4th 755, 761 (2010) [declarations must state facts, not just conclusions].)
The moving party bears the initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if that party carries its burden of production, the burden shifts, and the opposing party is then subjected to a burden of production to make a prima facie showing of the existence of a triable issue of material fact. (Nativi v. Deutsche Bank National Trust Company, 223 Cal.App.4th 261, 288 (2014).)
"The party opposing the summary judgment cannot rely on its pleadings, but must make an independent showing by a proper declaration or by reference to a deposition or another discovery product that there is sufficient proof of the matters alleged to raise a triable question of fact if the moving party's evidence, standing alone, is sufficient to entitle the party to judgment." (Buehler v. Alpha Beta Co., 224 Cal.App.3d 729, 733 (1990).) An "opposition to summary judgment will be deemed insufficient when it is essentially conclusionary, argumentative or based on conjecture and speculation." (Ibid.; see also LaChapelle v. Toyota Motor Credit Corp., 102 Cal.App.4th 977, 981 (2002) [a party "cannot avoid summary judgment by asserting facts based on mere speculation and conjecture, but instead must produce admissible evidence raising a triable issue of fact"].)
Given an admission obtained through an RFA conclusively establishes facts and is "not subject to being contested through contradictory evidence" (St. Mary, supra, 223 Cal.App.4th at p. 775), attaching the admission to an MSJ will result in a party establishing there is no triable issue of material fact as to what was admitted. Assuming proof of the fact results in establishing that a party has the right to judgment as a matter of law, the case will end when the court grants the MSJ.