REQUESTS FOR ADMISSIONS AND COSTS OF PROOF SANCTIONS JAMES GRAFTON RANDALL, ESQ.
REQUEST FOR ADMISSIONS COSTS OF PROOF SANCTIONS AND NEED FOR EXPERTS Several people have recently pointed out to me that plaintiff s attorney s appear to be using requests for admissions more often and filing post-trial motions for costs and attorneys fees upon conclusion of trial. In fact, recently we have seen Courts grant such post-trial motions, granting plaintiffs and their attorneys awards that in some cases have exceeded the amount the jury awarded the plaintiff for damages! Current budgetary conditions have left the courts with the impetus for creative challenges to reduce case loads and encourage the settlement of cases. Imposition of such costs and fees is clearly one way to get the message out loud and clear the purpose of using requests for admissions is to eliminate matters to be tried, and the failure to comply with reasonable requests may prove to be costly. This is a matter that requires careful consideration and attention and requires that sometimes even in soft tissue and chiropractic treatment cases that we may need to employ an expert to provide support for our denial of the requests for admissions. 1 For example, these requests for admission include such requests as: ADMIT that Plaintiff suffered injuries as a result of the accident, or ADMIT that the injuries Plaintiff complains of were caused by the subject accident, or ADMIT that the medical bills plaintiff has provided to the defense are reasonable ; or, ADMIT that the medical bills disclosed to the defense in discovery were necessary due to the accident which is the subject of this lawsuit ; or, ADMIT that plaintiff s treating doctors support plaintiff s claim that his/her injuries were caused solely by the subject accident ; or, ADMIT Plaintiff sustained injuries because the stairs were dangerous. After receiving such requests for admissions, defense responds with a Deny. 1 Argument of an attorney whether it be statements made at a hearing or statements contained in points and authorities is not proof legal or evidentiary. City of Fresno v. Superior Court (1980) 104 Cal.App.3d 25, 31. Merely arguing to the jury that the medical treatment or expenses was not reasonable or necessary is not evidence and a smart plaintiff attorney will or should file a motion in limine to preclude such argument if the defense does not provide testimony of a qualified medical expert to dispute the necessity and reasonableness of medical bills, treatment or extent of injuries. See Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618 costs properly recoverable where defendant did not produce expert at trial to testify. Merely relying on expert s opinions in denial of request for admissions is not sufficient.
Plaintiff goes to trial, receives a favorable verdict and then seeks to recover Requests for Admissions costs. Plaintiff argues to the Court that the defendant denied the request for admission as to medical bills and yet defendant never even retained an expert to testify. In other words, defendant offered no evidence to support the denial of the request for admission. Therefore the denial was in bad faith, unsupported by the evidence and costs should be imposed. The Court will more than likely grant this motion. THE PRIMARY PURPOSE OF REQUESTS FOR ADMISSIONS IS TO SET AT REST TRIABLE ISSUES SO THEY WILL NOT HAVE TO BE TRIED THEY ARE AIMED AT EXPEDITING TRIAL. THE TRIAL COURT HAS THE DISCRETION TO AWARD COSTS AND FEES AGAINST A PARTY FOR UNWARRANTED DENIALS OF SUCH REQUESTS. 1. Statutory Authority: Any party may obtain discovery by a written request that the other party admit the truth of specified matters of fact, opinion relating to fact, or application of law to fact. A request for admissions may relate to a matter that is in controversy between the parties. (Code Civ. Proc., 2033.010.) Code of Civil Procedure section 2033.420, subdivision (a) provides, in pertinent part, If a party fails to admit the... truth of any matter when requested to do so under this chapter, and if the party requesting that admission thereafter proves the... truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees. The trial court must make the order unless, among other things, [t]he party failing to make the admission had reasonable ground to believe that that party would prevail on the matter. (Code Civ. Proc., 2033.420, subd. (b)(3).) 2. Purpose of Requests for Admissions: The 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. ( Brooks v. American Broadcasting Co. (1986) 179 Cal.App.3d 500, 509 [cost-of-proof sanctions are designed to reimburse reasonable expenses incurred by a party in proving the truth of a requested admission where the admission sought was of substantial importance [citations] such that trial would have been expedited or shortened if the request had been admitted ].) 3. Requests For Admissions Do Not Seek To Uncover Information: Requests for admissions differ fundamentally from other forms of discovery. Rather than seeking to uncover information, they seek to eliminate the need for proof. ( Stull v. Sparrow (2001) 92 Cal.App.4th 860, 864.) Their purpose is to expedite trial. ( Id. at p. 865.)
4. Duty To Make Reasonable Investigation: A party responding to requests for admissions has a duty to make a reasonable investigation to ascertain the facts even though the party has no personal knowledge of the matter when the party has available sources of information as to the matters involved in such requests for admissions. ( Brooks v. American Broadcasting Co. (1986) 179 Cal.App.3d 500, 510; accord, Rosales v. Thermex-Thermatron, Inc. (1998) 67 Cal.App. 4th 187, 198.) 5. Whether To Award Such Costs And How Much Is The Court s Discretion: Whether a party is entitled to costs of proof under section 2033.420, and, if so, the amount to be awarded, is within the trial court's discretion. ( Brooks v. American Broadcasting Co. (1986) 179 Cal.App.3d 500, 508; accord, Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618, 637, fn. 10; Stull v. Sparrow (2001) 92 Cal.App.4th 860, 864.) The trial court's ruling will be disturbed on appeal only in a clear case of abuse resulting in a miscarriage of justice... ( Blank v. Kirwan (1985) 39 Cal.3d 311, 331, quoting Denham v. Superior Court (1970) 2 Cal.3d 557, 566; see also Wimberly v. Derby Cycle Corp., supra, at p. 637, fn. 10.) The determination of whether there were no good reasons for the denial, whether the requested admission was of substantial importance, and the amount of expenses to be awarded, if any, or all within the sound discretion of the trial court. (Brooks, supra, 179 Cal.App.3d at p. 508.) 6. Only Costs Incurred To Prove Denial Under section 2033.420, a party that denies a request for admission may be ordered to pay the costs and fees incurred by the requesting party in proving that matter. ( Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1276.) The statute authorizes only those expenses incurred in making that proof, i.e., proving the matters denied by the opposing party. Garcia v. Hyster Co. (1994) 28 Cal.App.4th 724, 736-737 [accounting required setting forth the hourly fees and time spent to prove the matters denied conclusionary statements insufficient]). Unlike other discovery sanctions, an award of expenses pursuant to section [2033.420] is not a penalty. Instead, it is designed to reimburse reasonable expenses incurred by a party in proving the truth of a requested admission... such that trial would have been expedited or shortened if the request had been admitted. ( Brooks v. American Broadcasting Co., supra, 179 Cal.App.3d at p. 509 [discussing predecessor provision]; accord, Stull v. Sparrow, supra, 92 Cal.App.4th at p. 865.) Expenses are recoverable only where the party requesting the admission proves... the truth of that matter, not where that party merely prepares to do so. [Wagy v. Brown (1994) 24 CA4th 1, 6].
7. No Costs Where Matter Admitted Prior To Trial: Sanctions for cost-of-proof cannot be awarded when the parties have stipulated prior to commencement of trial as to facts previously denied [or where defendant concedes the issue]. Stull v. Sparrow (2001) 92 Cal.App.4th 860, 867 868. 8. No Costs If Denial Based on Reasonably Entertained Belief The responding party must show that at the time of denial, it held a reasonably entertained (i.e., based on admissible evidence) good faith belief that it would prevail on the issue at trial. [See Laabs v. City of Victorville (2008) 163 CA4th 1242, 1276]. 9. May Be Awarded To Defendant After Successful Summary Judgment: Such cost of denial fees are not limited to matters that go to trial. They may also be awarded upon the successful grant of a motion for summary judgment. Summary judgment also promotes the efficient use of the courts, by ascertaining the presence or absence of triable issues of fact. (See Kurokawa v. Blum (1988) 199 Cal.App.3d 976, 988, 245 Cal.Rptr. 463 [The aim of summary judgment is to discover whether the parties possess evidence requiring the weighing procedures of a trial.].) A party that has successfully moved for summary judgment should not be penalized for avoiding trial by a denial of costs of proof. We conclude that sanctions under section 2033, subdivision (o) are available following summary judgment. Barnett v. Penske Truck Leasing (2001) 90 Cal.App.4th 494, 499. 10. Factors To Be Considered: In determining whether a party reasonably denied the truth of a requested admission, there are a variety of factors which a court should consider. ( Brooks, supra, 179 Cal.App.3d at p. 509.) These include whether a responding party later learned facts that would have called for an admission and advised the requesting party that the denial was in error or should be modified, and whether at the time the denial was made the party making the denial held a reasonably entertained good faith belief that the party would prevail on the issue at trial. ( Id. at pp. 510-511.) [I]t is [not] enough for the party making the denial to hotly contest the issue. [Instead], there must be some reasonable basis for contesting the issue in question before sanctions can be avoided. ( Id. p. 511.) C.C.P. 2033.420 provides that: (a) If a party fails to admit the genuineness of any document or the truth of any matter when requested to do so under this chapter, and if the party requesting that admission thereafter proves the genuineness of that document or the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees. (b) The court shall make this order unless it finds any of the following: (1) An objection to the request was sustained or a response to it was waived under Section 2033.290. (2) The admission sought was of no substantial importance.
(3) The party failing to make the admission had reasonable ground to believe that that party would prevail in the matter. (4) There was other good reason for the failure to admit. 11. Was the Matter of Substantial Importance : The second exception to the mandatory award of sanctions is whether the admission sought was of no substantial importance. [C.C.P. 2033.420(b)(2).] A request for admission is found to be of substantial importance when the matter requested for admission is central to disposition of the case. [ Brooks v. American Broadcasting Co. (1986) 179 Cal.App.3d 500, 509]. 12. One Need Not Be Prevailing Party To Be Entitled To RFA Costs: One need not be a prevailing party to be entitled to sanctions under this statute. (Smith v. Circle P Ranch Co. (1978) 87 Cal.App.3d 267, 275.) Conversely, costs of proof are not recoverable simply because the party promulgating the request prevails at trial. ( Brooks v. American Broadcasting Co., supra, 179 Cal.App.3d at p. 513.) 13. No Costs If Objection To Request Was Sustained Or Response Was Waived: The trial court need not award costs of proof if the responding party's objection to the request was sustained or a response to it was waived by the propounding party. 2033.420, subd. (b)(1).) Under this provision, to avoid waiving entitlement to costs of proof, the propounding party generally must move to compel a further response after an objection is interposed. ( Wimberly v. Derby Cycle Corp., supra, 56 Cal.App.4th at p. 636.) But no such motion is required when the objection is coupled with an unequivocal denial. ( American Federation of State, County and Municipal Employees v. Metropolitan Water Dist. of Southern California (2005) 126 Cal.App.4th 247, 268-269 [finding responses constituted unequivocal denials, supporting cost-of-proof sanctions]). 14. May Only Be Awarded Against Client, Not Attorney: The cost-of-proof sanction is awardable against the client, not against the attorney. [Estate of Manuel (2010) 187 CA4th 400, 404 405]. 15. Standard of Review On Appeal: The trial court's ruling on a motion under section 2033.420 is reviewed for an abuse of discretion. ( Miller v. American Greetings Corp. (2008) 161 Cal.App.4th 1055, 1065 1066.)
CONCLUSION: An unwarranted denial of a request for admission may prove to be costly and the failure to present the appropriate experts [doctors, etc.] at time of trial to attempt to support the previous denial of the request for admission may prove to be disastrous if the Plaintiff had propounded requests for admissions prior to the trial. It has proven to be quite costly to date in several in cases where a defendant has denied a request that the plaintiff s medical treatment was reasonable or necessary or the bills were reasonable and necessary and yet the defendant fails to produce a doctor at trial to testify. In one appellate decision the court upheld an award of $250,000.00 costs of proof fees! The costs of the plaintiff s experts hourly rate for testifying as well as the hourly rate of the attorney s hours in preparing this portion of the trial may be imposed by the defendant against whom the jury has rendered a verdict.