18th May 2015

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Types of motions available to propounding party

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. [CCP § 2033.280(b)];

2.    Motions to compel further responses to RFAs where the responses are claimed to be inadequate or the objections improper.  [CCP § 2033.290(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.  [CCP § 2033.290(e)], [St. Mary v. Superior Court (2014) 223 Cal App. 4th 762,777]

◆  OBSERVATION:  If the alleged default of the responding party is partially based upon the above (1) failure to serve any responses at all, and (2) responses that are claimed to be inadequate or the objections are improper, the propounding party must make two motions.  The first, if a  propounding party wants to have the court deem “admitted” certain request for admissions.  The second is a motion to compel further responses.   The propounding party may not effectively in the same motion convert alleged defective responses based upon responses that are legally insufficient into an all or nothing motion.  By this is meant, a propounding party cannot bypass four steps of the statutorily required process by making a motion to compel further responses as to those thought to be illegally insufficient responses.  [St. Mary v. Superior Court (2014) 223 Cal App. 4th 762, 783]  See § R55,01:8, infra.

Motion to compel further responses; meet and confer requirement; attorney fees; separate statement requirement

If the propounding party believes that the responses to RFAs are deficient in some respect or that any objections thereto are not well taken, he or she may make a motion to compel further responses under CCP § 2033.290.  [St. Mary v. Superior Court (2014) 223 Cal App. 4th 762, 776]

Time to make motion – 45 day rule

A motion to compel further responses must be made within 45 days of service of written responses.  [CCP § 2033.290(c)]

Attorney’s fees

The court is required to impose sanctions upon the unsuccessful party or attorney for the party in connection with a motion to compel further responses, unless it finds that the “one subject to sanction acted with substantial justification or that the circumstances make the imposition of the sanction unjust”.  [CCP § 2033.290(b)]

Disobedience of order

If the responding party disobeys an order compelling further responses made under § 2033.290, the court is empowered to order that the matters involved in the request are deemed admitted and/or impose monetary sanctions.  [CCP § 2033.290(a); St. Mary v. Superior Court (2014) 223 Cal App. 4th 762, 776]

Meet and confer requirement

A motion to compel further responses must contain a declaration indicating any meet and confer attempts made by real parties in an effort to avoid bringing the motion.  [CCP § 2033.290(b); St. Mary v. Superior Court (2014) 223 Cal App. 4th 762, 778]

Separate statement requirement

The motion must contain a SEPARATE STATEMENT under which the moving party, as to each allegedly inadequate RFA response, must state individually the RFA, the RFA response, and the factual legal reasons why the response is inadequate.  [Cal. Rules of Court § 3.1345;  St. Mary v. Superior Court (2014) 223 Cal App. 4th 762, 778]  Failure to include a separate statement as part of the motion required by the Rules of Court provides justification for denial of the discovery motion.  [Mills v. US Bank (2008) 166 Cal. App. 4th 871, 893]

“Nature of deemed admitted” motion

A motion to “deem RFAs admitted” is based upon the responding party’s failure to serve ANY responses at all in a timely fashion.  [CCP § 2033.280(b)]

A party not serving a timely response waives any objections to any RFAs.  [CCP § 2033.280(a)]

The requesting or propounding party may move for an order that (a) the genuineness of any documents and (b) the truth of any matters specified in the request be deemed admitted.  Monetary sanctions may be requested.  [CCP § 2033.280(a)]

Trial court determination

Unless the trial court determines that the responding party “has served, BEFORE THE HEARING ON THE MOTION”, a proposed response to the request for admission that is in substantial compliance with CCP § 2033.220, a court must order the RFAs deemed admitted.  [CCP § 2033.220(c)]

Sanctions

The court must also impose monetary sanctions upon a party and/or the attorney for failure to serve a timely response to the RFAs.  [CCP § 2033.280(c)]

Effect of serving responses prior to the HEARING

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 § 2033.280 to have the RFAs deemed admitted.  [Tobin v. Oris (1992) 3 Cal. App. 4th 814, 827; St. Mary v. Superior Court (2014) 223 Cal App. 4th 762, 776]

Motion to compel further responses distinguished

In a “deemed admitted” hearing, the Court reviews responses that set forth “admitted” or “deny”.   The Court also reviews any “reasonable qualifications” to the “admitted” or “deny” responses to see if they constitute a legally sufficient denial.  [St. Mary v. Superior Court (2014) 223 Cal App. 4th 762, 780-781]  At this hearing the trial court does not review whether the RFAs are sufficient in some respect or that any objection thereto are not well taken.  If this is the moving party’s position he or she may make a motion to compel further responses under CCP § 2033.290.  See discussion § R55.01:8 Motion to compel further responses; meet and confer requirements; attorney’s fees; separate statement required.  [St. Mary v. Superior Court (2014) 223 Cal App. 4th 762, 776]

Review of RFA motion on appeal

Request for admissions are more closely akin to summary adjudication procedures than to orthodox discovery.  [St. Mary v. Superior Court (2014) 223 Cal App. 4th 762, 774]  See discussion § R55.01:1 above.  Because RFAs are designed not so much to “discover” the facts and to expedite trial preparation but rather RFAs eliminate any further need of proof to establish the admitted fact, the appellate court does not apply the rule that a reviewing court should rarely interfere with pre-trial discovery orders.  [St. Mary v. Superior Court (2014) 223 Cal App. 4th 762,774]  Compare § A77 APPEAL [§ A77:15.5 De Novo review of appellate court].  The rule appears to be whether the alleged defaulting party “substantially complied” with CCP § 2033.  See St. Mary v. Superior Court (2014) 223 Cal App. 4th 762, 779-781]  See § M13 MANDAMUS: PROCEEDINGS IN APPELLATE COURT [§ M13:5.4 Discovery orders].

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