By: Josiah M. Prendergast
Litigation tends to be expensive, increasingly so due to the burdens of discovery. (You can thank the advent of emails, text messages, and other forms of communication now documenting conversations that used to take place by phone or in-person.) Litigants often find themselves tempted to use discovery as a bludgeon against their opponent, a means of extorting a righteous plaintiff or defendant into settling the case because the cost of proving the truth is simply too onerous.
In some instances, the temptation is to inundate an opponent with discovery demands. In other cases, the discovery abuse involves avoidance and obstruction. Samsky v. State Farm Mutual Auto. Ins. Co. falls into the latter category. And, just last week, the Second District Court of Appeal confirmed, in Samsky, that obstruction comes at a price.
These days, when you think of discovery, document demands usually come to mind first. (“Produce all emails between you and Johnny Appleseed regarding the Washington Orchard.”) But Samsky dealt with a discovery tool often overlooked: the request for admission.
Unlike other forms of discovery, which typically are used to uncover factual data that may be used to prove things at trial, the request for admission is a device intended to eliminate the need for proof in certain areas of a case. A request for admission can be used to establish the genuineness of a document (i.e., a written contract) or the truth of a fact, an opinion relating to fact, or the application of law to fact. (Code Civ. Proc., § 2033.010.) In effect, it relieves a party from the burden of gathering documents or testimony necessary to prove an issue. Therein lies the temptation—why reduce my opponent’s cost and expense by admitting something rather than forcing them to marshal all the evidence necessary to prove each detail?
The answer lies in Code of Civil Procedure section 2033.420, and Samsky confirms that section 2033.420 has teeth. Section 2033.420 requires the trial court to award a party its reasonable expenses incurred in proving an issue that the opposing party, without a reasonable basis, refused to admit. Although section 2033.420 contains a few exceptions, the Samsky court held that the burden falls on the denying party to prove that an exception applies.
In Samsky, the plaintiff’s vehicle was struck from behind by potentially underinsured drivers roughly two months apart. His insurance company, State Farm, picked up the cost of the second collision, but not the first. In discovery, the plaintiff asked State Farm to admit, among other things, that the plaintiff was not negligent in the first collision and that he suffered specific injuries as a result of the first collision. State Farm denied the requests.
In an arbitration over which the courts retained jurisdiction, the arbitrator concluded that the plaintiff had proved the truth of each of the matters that State Farm refused to admit. The trial court agreed, but erroneously placed the burden on the plaintiff to prove that the exceptions in section 2033.420 did not apply. On appeal, the Second District held that: (1) the plaintiff was entitled to recover his costs and attorneys’ fees incurred in proving the elements of his case that State Farm wrongfully refused to admit in discovery, and (2) State Farm had not carried its burden of showing that an exception applied.
The decision is particularly notable for the Court’s discussion of State Farm’s burden. State Farm argued that it had a reasonable basis to deny a request to admit that the plaintiff was not comparatively negligent because the driver in front of the plaintiff, Ms. Jensen, made a statement that suggested the plaintiff rear-ended her car before he was struck by the vehicle behind him. State Farm argued that Ms. Jensen’s statement was evidence that the plaintiff might have been at fault for part of the damage his car suffered and some portion of his injuries. The Court rejected State Farm’s argument, however, because State Farm failed to locate and produce Ms. Jensen as a witness during arbitration:
“Jensen’s out-of-court statement was inadmissible under the hearsay rule. (Evid. Code, § 1200.) For that statement to constitute a good reason to deny the RFAs, State Farm would have needed confirmation of Jensen’s availability to testify as a witness at the arbitration. … At some point, State Farm’s inability to locate Jensen rendered unreasonable its reliance on her as a basis to deny the RFAs. State Farm failed to present any evidence on the state of their efforts to locate Jensen at the time it denied the RFAs on the issue of negligence.” (Emphasis added).
As a result, State Farm not only lost the arbitration, but now also faces monetary sanctions as a result of its failure to admit key issues.
The lesson here is two-fold. First, litigants need to take requests for admission seriously and answer honestly. Obstructive behavior, such as intentionally and pedantically reading a request too narrowly in order to avoid admitting all or a portion of the request, can result in substantial monetary sanctions at trial. Second, parties need to be cognizant of the showing they must make at trial to establish their reasonable basis for denying a request. State Farm, at least in part, fell into that trap by not ensuring that the front driver, Ms. Jensen, would appear at trial. Ultimately, repeating State Farm’s mistake is no different than simply engaging in obstruction.