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self-study / Discovery

Jun. 25, 2018

The discovery that is different

4th Appellate District, Division 2

Michael J. Raphael

Associate Justice, 4th District Court of Appeal

Yale Law School

In my civil court, there is a document that I routinely order removed when it appears in trial exhibit books.

It is a document that California litigators use regularly, and it is actually an important part of litigation.

The document that should not be a trial exhibit is a set of requests for admission (RFAs) and their responses. To understand why I order it removed, a lawyer could read the Court of Appeal's recent opinion in Victaulic Co. v. American Home Assurance Co., 20 Cal. App. 5th 948 (2018).

Victaulic shows that the admission of an RFA response is error, and possibly reversible error at that. In contrast, other discovery responses -- such as interrogatories and depositions -- are routinely and properly used at trial.

To see why RFAs are different, consider how RFAs may be properly used.

RFAs are one of the tools authorized in the state Civil Discovery Act. Code Civ. Proc. Section 2033.010. Litigators typically serve them along with interrogatories and document requests in their cases.

In an RFA, a plaintiff in a personal injury case might, for example, ask a defendant to admit she was the driver of a particular car at the time of an accident, or to admit that a particular medical bill is genuine. The defendant might ask the plaintiff to admit that he drank a beer an hour before the accident, or that the plaintiff had a particular injury even before the crash.

The responding party may either "admit" or "deny" each of those things. This seems a lot like interrogatories, at least at first blush.

But the Court of Appeal has made clear that RFAs are different. In fact, that court has even stated that RFAs are not "discovery" at all: "Although the requests for admission mechanism is included in the Civil Discovery Act ... it has long been recognized that requests for admission are not really a discovery procedure." City of Glendale v. Marcus Cable Associates, 235 Cal.App.4th 344, 352 (2015) (quotation omitted).

What can it mean that something lawyers and judges frequently refer to as discovery is "not really" discovery?

The basic answer is this: other discovery devices are meant to obtain evidence for trial, but an RFA is meant to eliminate the need for such proof. Once a fact is admitted through an RFA response, there is no need for testimony on the matter. Once a document is admitted to be genuine, a custodian of records is unnecessary.

As the Court of Appeal has put it, "[t]he primary purpose of requests for admissions is to set at rest triable issues so that they will not have to be tried; they are aimed at expediting trial." American Federation of State, County, & Municipal Employees v. Metropolitan Water Dist., 126 Cal. App. 4th 247, 266-67 (2005).

Further, a single RFA can do a lot of work. Our Supreme Court has held that an RFA may concern a legal conclusion, rather than a fact. Burke v. Superior Court of Sacramento County, 71 Cal. 2d 276, 282 (1969); see City of Glendale, 235 Cal. App. 4th at 353 ("Requests for admission are not restricted to facts or documents, but apply to conclusions, opinions, and even legal questions.")

Thus, unlike most other discovery, RFAs can be used to shorten a trial by (for example) making it about damages rather than liability, or by eliminating a particular theory of liability or a particular defense. This is not an evidence-gathering purpose but an expense-eliminating purpose, as an admission obviates the need to gather and present certain evidence at all.

Reinforcing this different purpose, special sanctions -- not applicable to other discovery -- are available for improper RFA denials. Lawyers may seek so-called "cost-of-proof" sanctions under Code of Civil Procedure Section 2033.420 after proving a matter that an opponent has denied in an RFA response.

Upon a cost-of-proof sanctions motion, a court "shall" direct the opponent "to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees," unless certain exceptions are met. The important exceptions are (1) for matters that are "of no substantial importance" and (2) for RFA denials that were made in good faith, that is, where "[t]he party failing to make the admission had reasonable ground to believe that that party would prevail on the matter." Section 2033.420(b).

Cost-of-proof sanctions motions are relatively rare, as perhaps they should be. But it is important to know that costs-of-proof may be pursued following a summary judgment motion as well as following a trial. Barnett v. Penske Truck Leasing, 90 Cal. App. 4th 494, 496 (2001). As well, "the propounding party may be awarded such sanctions even if ... it ends up not prevailing at trial." Sasser v. Allstate Ins. Co., 2013 WL 3449808, at *13 (2013) (citing Smith v. Circle P Ranch Co., Inc., 87 Cal. App. 3d 267 (1978), which partially approved of a $30,500 award to the losing party.)

RFAs, then, differ from other discovery because they provide a potentially potent way for a California litigator to attempt to deter the opposing party from forcing undue expense on issues that cannot in good faith be contested. That is, their purpose, bolstered by the cost-of-proof sanctions enforcement mechanism, differs from that of other Discovery Act tools.

Once the purpose of RFAs is understood, it is easier to understand why the Court of Appeal reversed a judgment in Victaulic. It did so because responses to requests for admission "are inadmissible at trial." 20 Cal. App. 5th at 972.

In Victaulic, a company that manufactures plumbing products sued its insurers for coverage related to several product liability lawsuits against the company. One of the witnesses for the defense was a claims examiner who handled some of the claims. She also happened to be the person who, during discovery, verified the RFA responses on behalf of the company.

At trial before the jury, the trial court allowed the plaintiff company's counsel "to interrogate [the witness] with the insurers' responses to the RFAs, which was improper enough." Id. at 960. In addition to merely admitting the response into evidence, the company's "closing argument focused on [the examiner] and her 'lies' in the RFAs" under oath. Id.

The Court of Appeal thus reversed the judgment in favor of the plaintiff due, in part, to the error in admitting RFA responses as evidence. The court found the closing argument's emphasis on lying on those responses demonstrated that the error was not harmless.

Victaulic was not the first case to hold that RFA responses are inadmissible. It relied on a 2015 case that definitively held as much, Gonsalves v. Li, 232 Cal. App. 4th 1406.

Despite this authority, it is easy to understand why it is not uncommon for RFA responses to appear in exhibit books, or why trial lawyers prepare to cross-examine witnesses with them. They seem like interrogatories, which litigators are used to employing at trial.

But taking a cue from the Court of Appeal's statement that RFAs are "not really a discovery procedure," trial lawyers might be well-advised to view them in a different way than they look at other discovery.

That is, RFAs could be looked at as part of the settlement or dispute-resolution process, unlike the rest of discovery. RFAs essentially seek another party's official position on a matter, rather than seek evidence from a witness. While interrogatories are properly used to obtain information, RFAs are properly used to put issues to rest.

As to summary judgment motions, this means that RFA admissions can be effectively used to narrow the potential triable issues by taking the admitted ones out of play.

Likewise, for a trial, the proper use of RFA admissions is to shape the proceeding through a judicial instruction, in limine order, or objection that effectively precludes evidence that contradicts the admission, as a matter that has been settled. Looked at this way, it becomes more clear why a lawyer should not seek to admit an RFA admission or denial into evidence, impeach a witness with it, or argue to a jury (as in Victaulic) that the verifying individual lied.

The proper remedy for a bad-faith denial of an RFA is a motion for cost-of-proof sanctions. This, rather than a trial argument that the denial was a lie, is the proper consequence of a party's failure to settle an issue that should not have been contested.

Understanding that the purpose of RFAs differs from that of other discovery could lead a litigator toward more efficient discovery -- and then to avoid error at trial.


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