Compliance with Code of Civil Procedure § 2033.220

Code of Civil Procedure § 2033.280(c) provides that the court shall deem the matters admitted unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Code of Civil Procedure § 2033.220.

Failure to Respond

If a party fails to serve a timely response, the requesting party may move for an order that the requests be deemed admitted. (Code Civ. Proc. § 2033.280(b).) The court “shall” make this order unless, before the hearing, a proposed response in substantial compliance with CCP section 2033.220 has been served. (St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 776 (service of substantially compliant responses prior to the hearing on the “deemed admitted” motion will defeat a propounding party’s attempt to have the requests deemed admitted).)

Genuineness and Truth

Where a party fails to timely respond to a request for admission, the propounding party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted. (Code Civ. Proc. § 2033.280(b).) The party who failed to respond waives any objections to the demand, unless the court grants them relief from the waiver, upon a showing that the party (1) has subsequently served a substantially compliant response, and (2) that the party’s failure to respond was the result of mistake, inadvertence, or excusable neglect. (Code Civ. Proc. § 2033.280(a)(1)-(2).) The court shall grant a motion to deem admitted requests for admissions, “unless if finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.” (Code Civ. Proc. § 2033.280(c).)

Request for Admission (“RFA”)

In Allen-Pacific, Ltd. v. Superior Court, the court of appeal found that the trial court exceeded its authority under Code of Civil Procedure § 2033(k) in denying the plaintiff’s motion to deem admitted the truth of the matters specified in the RFA’s and for monetary sanctions under CCP § 2023, which were mandatory. (Allen-Pacific, Ltd. v. Superior Court (1997) 57 Cal.App.4th 1546, 1551-1552 (disapproved of on other grounds by Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 983, fn. 12).) In Allen-Pacific, the defendants’ response to the RFAs provided prior to the initial hearing on plaintiff’s motion failed to conform to the statutory prescription of Code of Civil Procedure § 2033(g) because it was not signed by the individual defendant and was not under oath. Under Code of Civil Procedure § 2033(k), a court must grant a motion to have admission requests deemed admitted where legally sufficient responses have not been served prior to the hearing on the motion. This is so even when the defendants served a verified response before the continued hearing date. (Id. at 1551.)

Order Compelling Further Responses

The court is authorized by statute to deem particular requests admitted if the responding party fails to comply with an order compelling further responses to RFAs. (Code Civ. Proc. § 2033.290(e).) Furthermore, if a defendant has not opposed the motions and not responded to the subject discovery, the defendant will have waived any objections to the aforesaid discovery, which could result in the court allowing requested facts to be admitted. (Code Civ. Proc. §§ 2031.300(a), 2033.280(a-b).)

Corresponding Sanctions

A party that succeeds in bringing a motion to compel or motion to deem admitted is entitled to monetary sanctions absent substantial justification. (Code Civ. Proc. §§ 2030.290(c), 2031.300(c), 2033.280(b).)

Failure to Respond

The failure to respond is a misuse of the discovery process, and sanctions may be warranted. (Code Civ. Proc. § 203328003.) Where the court grants a motion to compel responses, sanctions shall be imposed against the party who unsuccessfully makes or opposes a motion to compel, unless the party acted with substantial justification or the sanction would otherwise be unjust. (Code Civ. Proc. § 2030.290(c).) Where a party fails to provide a timely response to requests for admission, “[i]t is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.” (Code Civ. Proc. § 2033.280(c).)

RFAs

For motions to deem RFAs admitted, even where the motion is defeated by the provision of responses, it is mandatory for the court to impose a monetary sanction on the party or attorney who failed to serve timely responses to the RFAs, thus necessitating the motion in the first place. (Code of Civ. Proc. § 2033.290(c).)

Unverified

Although counsel may verify a pleading when his client is absent from the county where counsel has his office (Code Civ. Proc. § 446(a)), attorney verification of requests for admissions under Code of Civil Procedure § 2033 is insufficient. (Steele v. Totah (1986) 180 Cal.App.3d 545, 550; see also CCP § 2033.) Thus, unsworn responses are tantamount to no response at all. (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.) Accordingly, such responses fail to substantially comply with Code of Civil Procedure § 2033.220.