In a case of first impression, the First District Court of Appeal in Gonsalvez v. Li (Case No A140284), 2015 Daily Journal D.A.R. 472, has held that denials or qualified denials of requests for admissions (RFAs) are not admissible evidence “in an ordinary case, i.e., a case where a party’s litigation conduct is not directly at issue”.
In this auto accident case brought by an injured passenger against the driver, plaintiff propounded RFAs requesting defendant to admit, among other things, that he was driving too fast for the conditions at the time of the accident and that his pressure on the gas pedal was a substantial factor in the accident. Defendant responded with standard denials for lack of information and belief. At trial, plaintiff’s counsel asked defendant on the stand to confirm his RFA responses and that they were made under oath. He then proceeded to question defendant, over objections, about his qualified denials of the RFAs. At the conclusion of the testimony, the court, again over objection, admitted the RFAs and responses.
In closing, plaintiff’s counsel urged the jury to look at the RFAs and the responses, and then cleverly argued they showed that defendant, through “a bunch of double talk” (i.e., the lawyer-drafted qualified denials for lack of information and belief), was failing to take responsibility for his actions. The closing argument passage quoted in the opinion is very clever and was likely quite compelling to the jury.
“I encourage you to look at … the Requests for Admissions that we sent to Ran Li asking him to admit some very basic facts about this crash. His responses are there as well. Let’s just look at a few of them…. [¶] … [¶] This is a simple question, ladies and gentlemen. ‘How much did you push on the accelerator.’ [His response] is a bunch of double speak[,] … a bunch of ‘I’m sorry I’m not taking responsibility and not only am I doing it, I’m doing it in a way that makes no sense.’ [¶] … [¶] … [I]t’s been more than four and a half years since this crash, and he will not in any way take any responsibility for it…. And that’s why we need to impanel a jury like you.”
Very good stuff! The jury apparently thought so, too. The jury found that defendant Li was negligent, that plaintiff Gonsalves was not comparatively negligent, and awarded plaintiff more than $1.2 million in damages for significant back injuries.
Defendant appealed, arguing the trial court erred in permitting plaintiff’s counsel to examine defendant on his negative responses to RFAs and admitting those responses into evidence. The First District Court of Appeal agreed, vacated the judgment and remanded the case to the trial court for new trial.
In the opinion, the court first undertook some statutory interpretation, noting defendant’s arguments that the applicable discovery statutes expressly allow any part of a deposition or interrogatory to be introduced at trial, whereas they only provide that admissions in response to RFAs are binding on the party at trial (Code Civ. Proc., §§ 2025.620 re depositions, 2030.410 re interrogatories and 2033.410 re RFAs). The court further noted the statutory scheme provides for monetary sanctions (i.e., reasonable expenses including attorney fees) when a party unreasonably fails to admit a matter in response to RFAs, but does not expressly permit a denial, objection or failure to respond to RFAs to be used against the party at trial. (Code Civ. Proc., § 2033.420, subd. (a)).
The court then drew a parallel to Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255, a well-known opinion which condemned the use of “legal contention questions” at deposition (i.e. asking a deponent to state all facts or identify all documents which support an affirmative defense). Rifkind held that “legal contention questions” unfairly require the deponent to make a “law-to-fact application that is beyond the competence of most lay persons” and “to sort out the factual material in the case according to specific legal contentions and to do this by memory and on the spot.” Likewise, in Gonsalves, the court noted that defendant “Li was asked to explain “by memory and on the spot” and without the ability to consult with his attorney why he took the legal position that he could not admit or deny certain RFA’s without further inquiry. And he was asked to do this not in a deposition, as in Rifkind, but in front of the jury.”
The court then noted, citing cases from Massachusetts, Florida, Missouri and Texas, that the weight of authority from other jurisdictions supports the position that denials or qualified denials of requests for admissions are not admissible evidence.
Finally, the court rejected the argument the RFA denials were admissible to impeach defendant’s credibility by showing his attitude toward the action in which he testifies under Evidence Code § 780(j). The court found no support for plaintiff’s attempt to make a party’s litigation conduct a legitimate subject for inquiry under Evidence Code section 780(j).
The court held that “denials of RFA’s are not admissible evidence in an ordinary case, i.e., a case where a party’s litigation conduct is not directly in issue” and, thus, “the trial court permitted examination of Li that was unfair and prejudicial to him, and erred in admitting those responses in evidence”.
There are takeaways from this case for both sides:
1. For the Propounding Party – Propound your RFAs early in discovery so there will be sufficient time to bring motions to compel admissions and to, through orders and sanctions, narrow issues for trial. If only RFA admissions have evidentiary value at trial, leave time in your discovery plan to get the admissions you need to narrow trial issues and streamline your trial. Unchallenged RFA denials have no worth at trial. Also, draft your RFAs as clearly as possible so you can get the compelling orders you want or need.
2. For the Responding Party – Under Gonsalves, the trial risk of serving denials or qualified denials is gone. Denials and qualified denials to RFAs cannot be used to impeach a witness, or to question witness veracity, or as fodder for closing argument as so cleverly done by plaintiff’s counsel in the case. And this is appropriate. Given the likely significance of an admission, counsel should be free, without risk of adverse consequences or unfair arguments at trial, to carefully and meticulously scrutinize the wording of RFAs to insure that what will be admitted is crystal-clear and not subject to misconstruction, misinterpretation or misunderstanding by the parties, the court or the jury.
But, while the trial risk of RFA denials and qualified denials is gone under Gonsalvez, the monetary risk is not. Under Code Civ. Proc., §2033.420, if a party fails to admit the genuineness of any document or the truth of any matter when requested to do so, and if the party requesting that admission thereafter proves the genuineness of that document or the truth of that matter, the court, upon motion and subject to certain conditions, may require the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney’s fees. Thus, you will not lose a jury and a trial as a result of your RFA denials. But, you or your client may end up writing a big check after it is all done if your denials were unreasonable under §2033.420(b)(1)-(4).