WILCOX v. BIRTWHISTLE

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Court of Appeal, Fifth District, California.

Mark Lee WILCOX et al., Plaintiffs and Appellants, v. William BIRTWHISTLE, M.D., Defendant and Respondent.

No. F026993.

Decided: September 22, 1998

Allan Lerch & Associates, Allan Lerch and Richard J. Reilley, San Francisco, for Plaintiffs and Appellants. Dummit, Faber & Briegleb and Randall R. McKinnon, Sacramento, for Defendant and Respondent.

OPINION

INTRODUCTION

Code of Civil Procedure section 2033 governs the use of requests for admission in civil cases.   Subdivision (k) of that statute provides that when a party to whom requests for admission have been directed fails to serve a timely response, the requesting party “may move for an order that ․ the truth of any matters specified in the requests be deemed admitted․”  Subdivision (k) further provides that “[t]he court shall make this order, 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” another subdivision describing the requirements of a proper response.   Once such a “deemed admitted” order is made, may the non-responding party ever obtain relief from the “deemed admitted” order, regardless of the circumstances which may have led to the non-responding party's failure to timely respond to the request for admissions and subsequent failure to submit a proposed response prior to the hearing on the requesting party's motion for a “deemed admitted” order?   Subdivision (m) of the statute provides that “[t]he court may permit withdrawal or amendment of an admission only if it determines that the admission was the result of mistake, inadvertence, or excusable neglect, and that the party who obtained the admission will not be substantially prejudiced in maintaining that party's action or defense on the merits.”   Does the word “admission” in subdivision (m) encompass only a written admission served by a responding party in response to a request for admission?   Or does it also include an “ admission” made by way of a court's subdivision (k) order that the truth of a matter be “deemed admitted”?   In St. Paul Fire & Marine Ins. Co. v. Superior Court (1992) 2 Cal.App.4th 843, 3 Cal.Rptr.2d 412, the Sixth District held that subdivision (m) does not apply to “deemed admitted” orders.   We respectfully disagree with St. Paul Fire & Marine.   As we shall explain, we are of the view that the Legislature intended the word “admission” in subdivision (m) to include not only the usual garden variety admission, but also any matter “deemed admitted” pursuant to a subdivision (k) “deemed admitted” order.

FACTS

In this medical malpractice action, a defendant doctor (respondent William Birtwhistle, M.D.) served a plaintiff (appellant Mark L. Wilcox, a minor, by and through his guardian ad litem Maria J. Wilcox) with a request for admissions.   The request asked the plaintiff to admit that the doctor “was not negligent in the manner in which he provided medical care to (plaintiff)” and that “[t]he plaintiff has not suffered any personal injury as a result of the medical care which was provided by this defendant.”   The authors of a treatise on discovery have referred to the serving of a request for admissions of this type as “spin[ning] the ‘deemed admission’ wheel.”  (See Hogan, California Discovery (4th ed.1996), § 9.15, and Brigante v. Huang (1993) 20 Cal.App.4th 1569, 1579, 25 Cal.Rptr.2d 354.)   That is, these were requests which “did not include issues as to which the parties might conceivably agree” and “essentially asked plaintiffs to admit that they had no cause of action.”   (Hogan, supra;  see also Elston v. City of Turlock (1985) 38 Cal.3d 227, 235, 211 Cal.Rptr. 416, 695 P.2d 713.)   In the present case, Dr. Birtwhistle spun and won.1  First, the plaintiff did not timely respond to the request.   Then, for reasons which we will later mention but which are not strictly pertinent to our reading of Code of Civil Procedure section 2033, subdivision (m), the plaintiff did not provide proper responses before the hearing on the doctor's motion to have the truth of the matters specified in the request be deemed admitted.   The defendant doctor thus obtained his “deemed admitted” order.   Sixteen days later, the plaintiff moved for relief from the deemed admitted order.   At hearing on the motion, the judge stated:  “If I let the record stand as it is, the defense has a wonderful windfall because of excusable mistake by an attorney.   And we have a plaintiff with brain damage who's going to go and walk away from the courthouse with the aide [sic ] of his parents never to have an opportunity to have his case heard on the merits.”   The trial judge expressly noted, however, that “the St. Paul case ․ is controlling” and denied the motion for relief.

Armed with the “deemed admitted” order, Dr. Birtwhistle moved for and obtained summary judgment.2  Plaintiffs' opposition to the summary judgment motion included the declaration of a medical doctor, David Kendal Stevenson, M.D., who described himself as “a physician duly licensed to practice medicine by the State of California” and “a Professor of Pediatrics as well as the Chief of the Division of Neonatal and Developmental Medicine at Stanford University.”   Dr. Stevenson opined that Dr. Birtwhistle “deviated from the accepted standards of care (was negligent) in treating MARK LEE WILCOX” in that Dr. Birtwhistle “failed to prescribe an adequate course of follow-up care, failed to order follow-up tests and studies, all of which led to the necessity of the double volume transfusion resulting in plaintiff's cardiac arrest and brain damage.”   The court's order granting summary judgment stated in part:  “The issues of negligence & causation have been conclusively established against the plaintiffs by the Order for Deemed Admissions.   Pursuant to that Order it is conclusively established that defendant was not negligent and that the actions of the defendant were not the cause of any injury to the plaintiff.   Such facts being deemed admitted, the plaintiff is not permitted to contradict them and therefore the declaration of Dr. Stevenson cannot be considered.”   In short, Dr. Stevenson's declaration would have created a triable issue of fact (see Code Civ. Proc., § 437c, subd. (c)) if not for the existence of the “deemed admitted” order.

Plaintiffs now appeal from the judgment in favor of Dr. Birtwhistle.   They contend that the court erred in refusing to exercise Code of Civil Procedure section 2033, subdivision (m) discretion on their motion for relief from the court's “deemed admitted” order.   They contend that if the court had exercised such discretion, a “different result would have been probable” (Code Civ. Proc., § 475) i.e., the court may well have granted the minor plaintiff's motion for relief, and without the “deemed admitted” order Dr. Birtwhistle would not have obtained summary judgment.   As we shall explain, we agree with plaintiffs.

DISCUSSION

 “We begin with the fundamental rule that our primary task in construing a statute is to determine the Legislature's intent.”  (Brown v. Kelly Broadcasting Co. (1989)48 Cal.3d 711, 724, 257 Cal.Rptr. 708, 771 P.2d 406;  People v. Fuhrman (1997) 16 Cal.4th 930, 937, 67 Cal.Rptr.2d 1, 941 P.2d 1189.)  “The court turns first to the words themselves for the answer.”  (People v. Knowles (1950) 35 Cal.2d 175, 182, 217 P.2d 1.)  “When statutory language is ․ clear and unambiguous there is no need for construction, and courts should not indulge in it.”  (Solberg v. Superior Court (1977) 19 Cal.3d 182, 198, 137 Cal.Rptr. 460, 561 P.2d 1148;  in accord, see also Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, at pp. 233-234, 45 Cal.Rptr.2d 207, 902 P.2d 225.)  “Where the words of the statute are clear, we may not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history.”  (Trope v. Katz (1995) 11 Cal.4th 274, 280, 45 Cal.Rptr.2d 241, 902 P.2d 259.)   A statute “must be given a reasonable and common sense interpretation consistent with the apparent purpose and intention of the lawmakers, practical rather than technical in nature, which upon application will result in wise policy rather than mischief or absurdity.”   (City of Poway v. City of San Diego (1991) 229 Cal.App.3d 847, 858, 280 Cal.Rptr. 368.)   But “[i]t is not our province to rewrite statutory enactments to reach what might be considered a more rational result.”  (Huening v. Eu (1991) 231 Cal.App.3d 766, 779, 282 Cal.Rptr. 664.)   Also, “[t]he meaning of a statute may not be determined from a single word or sentence;  the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible.”  (Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 659, 25 Cal.Rptr.2d 109, 863 P.2d 179.)

 Our disagreement with St. Paul Fire & Marine, supra, is fundamentally this.   That case looks at the language of the first clause of subdivision (m) saying that a party “may withdraw or amend an admission made in response to a request for admission.” 3  It reasons that when a party served with a request for admissions does not respond to that request, there can be no “admission made in response to a request for admission” because there is no “response.”   This reading of subdivision (m) appears to us, however, to render subdivision (m) out of harmony with subdivisions (k) and (n) of the statute.4  Subdivision (k) requires the court, under certain circumstances, to issue “an order that ․ the truth of any matters specified in the requests be deemed admitted․”  What does this mean?   We think the only plausible reading of this subdivision (k) language is that the court's “deemed admitted” order requires the court to treat or “deem” the non-responding party as if the non-responding party had in fact served a response expressly admitting each matter specified in the request.   This appears to us to be why subdivision (n) of the statute then explains the legal effect of “[a]ny matter admitted in response to a request for admission” but contains no separate explanation of the legal effect of a subdivision (k) “deemed admitted” order.   The subdivision (k) “deemed admitted” order in essence has transformed the non-responding party's lack of a response into a “matter admitted in response to a request for admission.”  (Code Civ. Proc., § 2033, subd. (n).)  There is thus no need for any separate explanation, in subdivision (n) or elsewhere, of the legal effect of a subdivision (k) “deemed admitted” order.

St. Paul Fire & Marine goes on to say that “subdivision (k) is intended to control default relief for total failure to respond, and subdivision (m) is intended to control default relief for erroneous or mistaken responses which the responder wishes to correct.”  (St. Paul Fire & Marine, supra, 2 Cal.App.4th at pp. 851-852, 3 Cal.Rptr.2d 412.)   We do not agree with this either.   Subdivision (m) provides a procedure to obtain relief, under certain specified circumstances, for “admissions made.”   Subdivision (k) provides no such procedure whatsoever.   The second paragraph of subdivision (k) provides a procedure whereby the requesting party can in essence obtain what might be called a court-ordered admission (an “order that ․ the truth of any matters specified in the requests be deemed admitted”) from a party who has not responded to the request for admissions.   The first paragraph of subdivision (k) allows a responding party to obtain, under certain circumstances, relief from the responding party's waiver of his or her right to object to any of the requests.   Neither of these two paragraphs of subdivision (k) deals with obtaining relief from an admission already made, or already deemed to have been made.

The St. Paul Fire & Marine case cites Courtesy Claims Service, Inc. v. Superior Court (1990) 219 Cal.App.3d 52, 268 Cal.Rptr. 30, as authority for the view that there can be no subdivision (m) relief from a subdivision (k) “deemed admitted” order.   We do not read Courtesy Claims Service, a Second District case, as so holding.   In Courtesy Claims Service, the requesting party did not receive a response to its requests for admissions.   The requesting party then moved under subdivision (k) for a “deemed admitted” order.   The court “denied Courtesy 's motion ‘in the interest of justice’ ” and gave the non-responding parties 20 days to submit responses to the requests.  (Courtesy Claims Service, supra, 219 Cal.App.3d at p. 55, 268 Cal.Rptr. 30.)   The appellate court ordered the trial court to vacate its denial order and to grant the requesting party's motion for a subdivision (k) “deemed admitted” order.   Subdivision (k) “requires the court to grant this motion unless a proposed response is served before the hearing on the motion.”  (Courtesy Claims Service, supra, 219 Cal.App.3d at p. 56, 268 Cal.Rptr. 30.)  Courtesy Claims Service did not involve a subdivision (m) motion for relief from an express admission or from a “deemed admitted” order.   No such express admission or “deemed admitted” order ever existed in Courtesy Claims Service.   The trial court had simply denied the requesting party's motion for a “deemed admitted” order.   The St. Paul Fire & Marine court relied on the portion of the Courtesy Claims Service opinion which stated:

“Plaintiffs … contend that the court properly afforded them the benefit of section 2033, subdivision (m), which provides in pertinent part:  ‘The court may permit withdrawal or amendment of an admission only if it determines that the admission was the result of mistake, inadvertence, or excusable neglect .…’ The court did not make such a determination here, nor could it have appropriately done so;  subdivision (m) applies only to a party ‘who has made an admission in response to a request.’  [Citation.]  Plaintiffs' admissions resulted from their failure to respond to such requests.”   (Courtesy Claims Service, Inc. v. Superior Court, supra, 219 Cal.App.3d at pp. 56-57, 268 Cal.Rptr. 30.)

What the Courtesy Claims court meant by this language is not entirely clear.   One reading of it is that because there was no express admission and no “deemed admitted” order, there was no “admission” from which subdivision (m) relief was needed.   The court's statement that “[p]laintiffs' admissions resulted from their failure to respond to such requests” might have been a reference to the “admissions” the plaintiffs would be deemed to have made after the trial court followed the appellate court's instruction to grant Courtesy's motion for a subdivision (k) “deemed admitted” order.   A second reading of it would be that the trial court could not properly rely on subdivision (m) to grant relief from a “deemed admitted” order (even though the trial court in Courtesy Claims Service had never issued such an order) because subdivision (m) relief is available only when there is an express admission, and not when there is a subdivision (k) “deemed admitted” order.   If the latter is what the Courtesy Claims Service court meant, then this would appear to be dicta because no subdivision (k) “deemed admitted” order was ever made in that case, and no relief from such an order was ever sought.   In any event, we disagree with this second reading of Courtesy Claims Service, and with St. Paul Fire & Marine.

Courtesy Claims Service and St. Paul Fire & Marine both rely on the Reporter's Notes to the Proposed Civil Discovery Act of 1986.   (See Hogan, Cal. Discovery (4th 1988), Vol. 3, Appendix D, at p. 255;  and Hogan and Weber, California Civil Discovery, (1996), Vol. 2, at pp. 447-448.)   The Reporter's Notes regarding subdivision (m) state:

“Subdivision (m) - Withdrawal or Amendment or Admission.   The present CCP § 2033 is silent concerning the trial court's power to permit a party who has made an admission in response to a request to withdraw or amend that admission.   A similar deficiency in the original FRCivP 36 was remedied by a 1970 amendment that provides:  ‘[T]he court may permit withdrawal or amendment when the presentation of the merits will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.’   A recent California case has recognized that a trial court has discretion under the present statute to permit withdrawal or amendment of an admission.  (John v. Brickey (1985) 168 Cal.App.3d 399, 404 [214 Cal.Rptr. 119].)   The proposed subdivision articulates this power, and then sets guidelines for determining when and under what conditions it should be exercised.”  (Hogan, supra, Vol. 3 at p. 255;  Hogan and Weber, supra, Vol. 2 at pp. 447-448, italics added.)

The Courtesy Claims Service court mentioned the Reporter's language referring to “a party who has made an admission in response to a request.”   That court concluded that a non-responding party has not “made an admission in response to a request” because the non-responding party's “admissions resulted from their failure to respond to such requests.”  (Courtesy Claims Service, supra, 219 Cal.App.3d at pp. 56-57, 268 Cal.Rptr. 30.)   The actual language of subdivision (m) uses the phrase “an admission made in response to a request for admission.”   This is the same language which appeared in the Proposed Civil Discovery Act of 1986.  St. Paul Fire & Marine 's reading of Courtesy Claims Service finds significance in the Reporter's words “a party who has made an admission in response to a request.”   But this language appears to be nothing more than a paraphrasing of subdivision (m) itself.   In our view, the Reporter's Notes support our reading of the statute.   That is, the Reporter's Notes support the view that subdivision (m) relief is available for both express admissions and for admissions resulting from a “deemed admitted” order.   Although neither the statute nor the Reporter's Notes expressly say that “subdivision (m) may be utilized to seek relief from a ‘deemed admitted’ order,” we see at least three different hints in the Reporter's Notes that this was the intended reading of the statute, and that “deemed” admissions were not intended to be treated any differently than express admissions.

First, the Reporter's Notes cite to the case of Jahn v. Brickey (1985) 168 Cal.App.3d 399, 214 Cal.Rptr. 119.  Jahn held that “a party is entitled to amend responses to requests for admissions pursuant to Code of Civil Procedure section 473 ‘where justice so requires.’ ”  (Jahn v. Brickey, supra, 168 Cal.App.3d at p. 404, 214 Cal.Rptr. 119.)  Jahn cited three cases for this proposition.   One of them, Cohen v. Superior Court (1976) 63 Cal.App.3d 184, 133 Cal.Rptr. 575, was a case in which relief was granted from a court order expressly declaring certain matters to be deemed admitted due to a party's failure to properly deny requests for admissions.   We take no exception to respondent's observation that section 2033 itself now contains the procedures under which relief from admissions may be sought, and that Code of Civil Procedure section 473 relief is no longer available.   (See St. Paul Fire & Marine, supra, 2 Cal.App.4th at p. 852, 3 Cal.Rptr.2d 412;  Tobin v. Oris (1992) 3 Cal.App.4th 814, 828, fn. 24, 4 Cal.Rptr.2d 736;  and Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 394-395, 42 Cal.Rptr.2d 260.)   But we see nothing in the Reporter's Notes which would suggest that subdivision (m) relief codified from Jahn was intended to exclude relief from deemed admissions, a type of relief acknowledged in Jahn itself by Jahn 's citation to Cohen.

Second, the federal rule referred to in the Reporter's Notes allows relief from matters deemed admitted due to a party's failure to timely respond to a request for admissions.   In Hadley v. U.S. (9th Cir.1995) 45 F.3d 1345, for example, “[b]ecause the responses were not given within 30 days of the request, pursuant to Fed.R.Civ.P. 36 (‘Rule 36’), the admissions requested by the government were deemed admitted.”  (45 F.3d at p. 1347.)   The Ninth Circuit nevertheless concluded that the motion for relief “should have been granted” by the district court.  (45 F.3d at p. 1350.)

Third, the Reporter's Notes to subdivision (k) of the statute express the view that the former procedure was “draconian.”   Presumably the Reporter meant that the new procedure would be less so.   But if subdivision (k) “deemed admitted” orders were actually intended to be irreversible and irremediable in any and all instances, then the new procedure would appear to be more draconian than the old.   Prior to the enactment of the Civil Discovery Act of 1986, a party who did not respond to a request for admissions was automatically deemed to have admitted the matters listed in the request.   The non-responding party then had to seek relief from the deemed admissions and “would be at the mercy of some trial judge's notion of what constitutes ‘mistake, inadvertence, surprise or excusable neglect.’ ”  (Hogan and Weber, supra, § 9.15.)   The 1986 Act changed this procedure so that the failure to respond did not automatically result in deemed admissions.   Under the 1986 Act, the requesting party must make a subdivision (k) motion for a court order that the matters in the request be deemed admitted.   The purpose of this change was to reduce the number of “draconian” instances in which the non-responding party ended up being deemed to have admitted the requests.   The Reporter's Notes to subdivision (k) make this clear.

“Subdivision (k) - Failure to Serve Response.   This subdivision implements a major change that the Commission is recommending, namely, the abolition of the automatic ‘deemed’ admission that now is the consequence of a failure to serve a timely denial or objection to requests for admission.   See Reporter's Note to Paragraph (1) of Subdivision (f), supra.   It substitutes for the present practice a provision allowing the propounding party to make a motion that any unanswered requests be deemed admitted.   It requires the court to grant this motion unless a proposed response is served before the hearing on the motion.   Moreover, it makes the imposition of a monetary sanction against the delinquent party mandatory.   The Commission recognizes that its proposal is shifting to the party seeking discovery the task of applying to the court to enforce a response to which that party is already entitled.   However, it believes that the present practice is draconian, and that the prospect of a mandatory monetary sanction will in most instances provide sufficient incentive for the party to whom the request is directed to comply with the requirements of this discovery method.”  (Hogan, supra, Vol. 3 at p. 255.)

Although the Reporter's Notes to subdivision (k) point out that “in most instances” the recipient of the request will respond to the request, we see no hint whatsoever in either the Reporter's Notes or in subdivision (k) itself that in the remaining instances the result will be not just an involuntary admission of the matters in the request, but an involuntary admission that is irremediable and irreversible, regardless of the circumstances which led up to the “deemed admitted” order.   Indeed, such a result would in those remaining instances appear to be far more “draconian” than the “mandatory monetary sanction” mentioned by the Reporter.   Subdivision (k) provides that the court “shall make” the deemed admitted order unless the recipient of the request “has served, before he hearing on the motion, a proposed response ․ that is in substantial compliance with” the statutory provision governing the content of a response.   The court thus has no discretion to deny the motion for a deemed admitted order if the non-responding party has not served, before the hearing, a proposed response.  (Demyer, supra, 36 Cal.App.4th at p. 395, 42 Cal.Rptr.2d 260;  Allen-Pacific, Ltd. v. Superior Court (1997) 57 Cal.App.4th 1546, 67 Cal.Rptr.2d 804;  see also Weil & Brown, Civ. Proc. Before Trial, § 8:1375, p. 8G-26 (Rev. # 1 1998).) 5  If the Legislature had intended a “deemed admitted” order to be so draconian as to be irremediable under any and all circumstances, we think it would have explicitly said so in the statute, most likely in either subdivision (k) or in subdivision (m).   It did not.   Nor did the Reporter expressly say so in the Reporter's Notes.

We think too that the drafters of the statute were well aware that almost as surely as night follows day, an unanswered request for admissions will be followed by the requesting party's motion for a “deemed admitted” order.   Whatever circumstances may have been the cause of the failure to respond to the request will in some instances still exist and will also be the cause of a failure to oppose the requesting party's motion seeking the “deemed admitted” order.   And one can easily envision an attorney, his vacationing client's proposed response in hand, on his way to a court hearing on his opponent's motion for a deemed admitted order.   If that attorney should be involved in a minor traffic accident, miss the hearing, and be unable to inform the court of his unavailability until after his case has been called and after the requesting party's motion has been granted, do subdivisions (k) and (m) then essentially mandate that the requesting party wins the case, regardless of what the evidence would show if the case could have been tried, and regardless of how promptly after the issuance of the “deemed admitted” order the victimized party seeks relief?   We do not think the Legislature so intended, especially in view of the fact that subdivision (m) clearly allows a motion to withdraw an actual written and served admission even years after that admission has been made.6

In sum, we hold that the words “admission made in response to a request for admission” in subdivision (m) of section 2033 encompass not only a responding party's written admission actually served on the requesting party, but also an admission that is deemed to have been “made in response to a request for admission” by virtue of the court's earlier subdivision (k) “order that … the truth of any matters specified in the requests be deemed admitted.”

The judgment is reversed.   The matter is remanded to the trial court for further proceedings consistent with this opinion.   Costs to appellants.

I respectfully concur.

Analysis of the issue presented here brings to mind the Gestalt perception test we have all seen which consists of looking at a black-and-white picture which-depending on how you look at it-results in your seeing either two faces or a goblet.

We are asked to decide whether the trial court erred by not exercising its discretion under Code of Civil Procedure section 2033, subdivision (m) to grant relief from the court's “deemed admitted” order.   If one's perception is consistent with Courtesy Claims Service, Inc. v. Superior Court (1990) 219 Cal.App.3d 52, 268 Cal.Rptr. 30 and its progeny, the issue is easily resolved by a simple reading of subdivisions (k) and (m), followed by the application of straightforward statutory construction principles.   This argument is appealing since subdivision (m), on its face, only allows relief from mistake, inadvertence, or excusable neglect from admissions made “in response to a request for admission.”   Thus, in this case, since relief is sought from deemed admissions, subdivision (m) does not apply.

On the other hand, the majority's perception of this issue is broader than one of simple statutory construction.   Instead, the majority tackles the problem of attempting to harmonize subdivisions (k) and (m) with subdivision (n), which describes the legal effect of an admission.   Subdivision (n) makes no reference to the effect of deemed admissions.   Does this silence then mean that deemed admissions are not “conclusively established against the party?”   My colleagues resolve this dilemma by taking the position that subdivision (k) must be read to require the court to treat deemed admissions the same as if made in response to a request for admission.   Thus, if all admissions are to be treated the same, it follows that subdivision (m) allows relief from default in this case.

This approach troubles me for two reasons.   First, the term “response to a request for admission” is a legal term of art.   It refers to a document which responds to a well recognized form of discovery-requests for admission.   How can we read this very specific term to mean more than it says?   Second, historically the Legislature has chosen to treat sanctions for failure to respond to requests for admissions in a more heavy-handed manner than failure to respond to other forms of discovery.   For all the wringing of hands, in reality, what we have here is a party seeking relief from a deemed admissions order brought about, in effect, by a total failure to file responses-not once, but twice.

So, what is the right answer?   As with Gestalt principles of visual organization, there are dangers in engaging in “selective perception” without considering the whole picture.   In this case, that means consideration of the interrelationship between all subdivisions within section 2033, an analysis not attempted in Courtesy Claims Service, Inc. v. Superior Court, supra, 219 Cal.App.3d 52, 268 Cal.Rptr. 30.   Given the public policy favoring the exercise of judicial discretion involving mistake, surprise and excusable neglect in the interest of justice, and the strong policy favoring trial on the merits, the majority has the better argument.   Thus, I concur.   I write separately because contrary to the positions carved out by Courtesy Claims and the majority, in my view, the resolution of this issue is anything but clear.   Guidance from either the California Supreme Court or the Legislature would go a long way to resolve this murky discovery trap.

FOOTNOTES

1.   Our comments about “spinning the deemed admissions wheel” should not be construed as criticisms of Dr. Birtwhistle or his counsel.   There may be occasions when a request for admissions of the type described here would be appropriate.   One would be when a plaintiff appears to have abandoned his or her case, but for some reason is unwilling to voluntarily dismiss it.   We are not privy in this case to the motive or motives of Dr. Birtwhistle and his counsel in serving Dr. Birtwhistle's request for the above-described admissions.   Our use of the phrase “spinning the deemed admissions wheel” is simply an acknowledgment of the obvious fact that a plaintiff who earnestly intended to pursue his or her case would not voluntarily make admissions of the type requested by Dr. Birtwhistle in this case and described above.

2.   The plaintiffs and appellants in this case are (1) the minor Mark Lee Wilcox, appearing by and through his guardian ad litem Maria J. Wilcox, (2) Maria J. Wilcox (Mark's mother), and (3) Jerry Lee Wilcox (Mark's father).   The second amended complaint alleged medical malpractice upon Mark Lee Wilcox The two parents also alleged that they had been damaged in that they had incurred expenses for the medical needs of Mark. Although Dr. Birtwhistle's request for admissions was directed to Mark only, and although the “deemed admitted” order therefore appropriately stated that the requested admissions were deemed to have been admitted only by Mark, Dr. Birtwhistle's motion for summary judgment sought and obtained judgment against all three plaintiffs.   We do not see in the record the basis for the summary judgment against the two parents, who apparently did not fail to respond to any requests for admissions, and who were not deemed by the “deemed admitted” order to have admitted anything at all.  (See also Code Civ. Proc., § 2033, subd. (n).)  It thus appears to us that the judgment against the parents would have been improper even if the judgment against Mark had been correct.   We need not concern ourselves with this issue, however.   This is because all parties appear to agree that the entire judgment (i.e., the judgment against all three plaintiffs/appellants) must be reversed if the trial court was required to exercise subdivision (m) discretion on Mark's motion for relief from his deemed admissions.   And in this case we hold that the trial court did indeed have authority under subdivision (m) of section 2033 to exercise its discretion on Mark's motion for relief.

3.   Subdivision (m) of section 2033 states:  “A party may withdraw or amend an admission made in response to a request for admission only on leave of court granted after notice to all parties.   The court may permit withdrawal or amendment of an admission only if it determines that the admission was the result of mistake, inadvertence, or excusable neglect, and that the party who obtained the admission will not be substantially prejudiced in maintaining the party's action or defense on the merits.   The court may impose conditions on the granting of the motion that are just, including, but not limited to, an order that (1) the party who obtained the admission be permitted to pursue additional discovery related to the matter involved in the withdrawn or amended admission, and (2) the costs of any additional discovery be borne in whole or in part by the party withdrawing or amending the admission.”

4.   Subdivision (k) states:  “If a party to whom requests for admission have been directed fails to serve a timely response, that party thereby waives any objection to the requests, including one based on privilege or on the protection for work product under Section 2018.   However, the court, on motion, may relieve that party from this waiver on its determination that (1) the party has subsequently served a response that is in substantial compliance with subdivision (f), and (2) the party's failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.“The requesting 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, as well as for a monetary sanction under Section 2023.   The court shall make this order, 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 paragraph (1) of subdivision (f).   It is mandatory that the court impose a monetary sanction under Section 2023 on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.”Subdivision (n) states:  “Any matter admitted in response to a request for admission is conclusively established against the party making the admission in the pending action, unless the court has permitted withdrawal or amendment of that admission under subdivision (m).   However, any admission made by a party under this section is (1) binding only on that party, and (2) made for the purpose of the pending action only.   It is not an admission by that party for any other purpose, and it shall not be used in any manner against that party in any other proceeding.”

5.   We recognize that at least two cases have said that a non-responding party may seek a protective order extending the time to respond to a request for admissions.  (See Brigante v. Huang, supra, 20 Cal.App.4th 1569, 25 Cal.Rptr.2d 354, Allen-Pacific, Ltd. v.Superior Court, supra, and Code Civ. Proc., § 2033(e).)   We express no view on the correctness of these cases, but do note that in the present case no such protective order was sought.   In the present case we are concerned with whether subdivision (m) relief is available to a party against whom a subdivision (k) “deemed admitted” order already has been made.

6.   In the present case, appellants' motion for relief from the deemed admissions included a declaration of their former counsel.   In a nutshell, the former counsel asserted that his office had served a “response” to the request for admissions prior to the “deemed admitted” hearing, but that “because of inadvertence and oversight on our part” the verification was not attached to the response before it was served.   He thus assumed that he “had effectively removed the dispute re admission requests from immediate concern” and that the response to the request for admissions was “no longer in issue.”   He added:  “Had we been aware that the tardy/deficient responses to admission requests were indeed still in issue, we would have (1) served the verified responses thereto prior to the February 13 hearing and (2) ourselves appeared at the hearing with proof of service of said responses and the foregoing explanation of its tardiness.”   Case law has held that “[u]nsworn responses are tantamount to no responses at all.”  (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636, 253 Cal.Rptr. 762;  Allen-Pacific, Ltd. v. Superior Court, supra, 57 Cal.App.4th at p. 1551, 67 Cal.Rptr.2d 804.)

ARDAIZ, Associate Justice.

VARTABEDIAN, J., concurs.

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