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Court of Appeal, Second District, Division 7, California.

PACIFIC LINING, INC., Plaintiff and Respondent, v. RAGING WATERS, INC., et al., Defendants and Appellants.

No. B046484.

Decided: June 28, 1991

Gibson, Dunn & Crutcher, Richard Chernick and Mona H. Ehrenreich, Los Angeles, for defendants and appellants. Kalisch & Fisher and Lee W. Cotugno, Beverly Hills, for plaintiff and respondent.

Defendants appeal from a judgment entered against them after an earlier denial of their motion to amend their verification to their responses to requests for admissions (“RFAs”) upon which the judgment was premised.   Defendant's main contention is that the court abused its discretion when it denied their motion to amend their verification.   The issue before us is whether the failure on the part of the signor of a verification to state that he was also signing for various entities was due to mistake, inadvertence, surprise or excusable neglect such that defendant's motion to amend should have been granted.   Since appellants did not show excusable neglect, we affirm.


On November 13, 1985, respondent filed a verified complaint to recover damages for work it performed on the River Ride at the Raging Waters Park in San Dimas, California.   Among the named defendants were appellants Raging Waters, Inc. and Bryant L. Morris d/b/a Bryant L. Morris Development.   On February 12, 1986, appellant Raging Waters, a partnership, filed a cross-complaint against respondent for breach of contract, delay in performance and other claims.

On May 9, 1986, respondent served upon all defendants and cross-complainant a First Set of RFAs.   The RFAs specifically stated that:  “each and every one of you are hereby requested to separately admit or deny under oath the following requests for admissions within thirty days from the date of service.”   Included in the RFAs were the following two admissions which are the nexus of this appeal:

“Request for Admission No. 11:

“You are indebted to Plaintiff in the principal sum of $269,196.98 together with interest thereon at the rate of 1–1/414% per month as evidenced by Paragraph A1 of the Prayer to Plaintiff's Complaint contained on Pages 15, 16, and 17 of the Complaint.

“Request for Admission No. 12:

“You are indebted to Plaintiff for all reasonable attorneys' fees incurred by Plaintiff in prosecuting this action.”

On June 4, 1986, appellants requested and were given a 30 day extension of time up to and including July 9, 1986, to respond to the RFAs.   On July 9, 1986, respondent's counsel was served with the responses.   The responses were verified only by Bryant L. Morris, an individual and Scott Morris, an individual.   No verified responses were received from appellants.

On July 10, 1986, respondent's counsel notified appellants' counsel by certified mail that for each of the matters for which an admission had been requested, those matters were deemed admitted for those parties who had failed to serve verified responses to the RFAs.

On August 8, 1986, appellants filed a motion pursuant to Code of Civil Procedure sections 1 473 and 2033, subdivision (a) to amend the verification to the responses to the RFAs.   The accompanying declaration by appellants' counsel stated that:

“Bryant L. Morris is the sole proprietor of Bryant L. Morris Development.   Mr. Morris is also the president of Raging Waters, Inc., which is a fifty percent partner in Raging Waters, a partnership.”

A hearing was held on the section 473 motion on August 26, 1986, at which time, a new declaration, signed by Bryant L. Morris, was filed.   This declaration states that:

“I am the sole proprietor of Bryant L. Morris Development.   I am also the president of Raging Waters, Inc., which is a fifty percent (50%) partner in Raging Waters, a partnership.”

On August 26, 1986, the Honorable Peter S. Smith, Judge of the Superior Court, denied the section 473 motion.

On September 23, 1986, the Court of Appeal denied appellants' petition for a writ of mandate.

On March 3, 1989, respondent filed a motion for judgment on the pleadings based upon the matters deemed admitted, seeking judgment in its favor on both the complaint and the cross-complaint.

A hearing on that motion was held on April 5, 1989, before the Honorable Thomas F. Nuss, Judge of the Superior Court, who heard argument on the issues of the RFAs and judicial admissions.   The court took the matter under submission, and on May 23, 1989, the court granted the motion.

The court found that:  (1) RFAs nos. 11 and 12 were unambiguous;  (2) judicial admissions were made;  (3) the admissions were not made improvidently or unguardedly;  (4) the admissions barred the cross-complaint;  and (5) appellants were estopped from introducing any evidence contradicting the admissions.

Notice of the judgment was served on November 20, 1989, and appellants filed a timely notice of appeal.


1. It was an abuse of discretion for the court to deny appellants' section 473 motion in light of the inadvertent and admittedly non-prejudicial failure to explain on the face of the verification the status of the signature of Bryant L. Morris.

2. It was an abuse of discretion for the trial court to find that the language of RFA number 11 provided a basis to dismiss the cross-complaint.

3. The statements made in appellants' section 473 motion and in their opposition to respondent's summary judgment motion 2 did not constitute sufficient judicial admissions upon which to base the dismissal of the cross-complaint.


I. The Trial Court Did Not Abuse Its Discretion In Denying Relief From The Deemed Admissions

Appellants contend that they sought relief from default on the grounds that their trial counsel mistakenly and inadvertently attached an incomplete verification, i.e., one that failed to state that it was executed on their behalf, but otherwise timely served complete responses to the RFAs propounded by respondent.   Furthermore, appellants state that since the title of the response revealed that it was on their behalf, that mistake constitutes excusable neglect pursuant to section 473.   We note that:  “Untimely or unsworn statements are tantamount to no response at all under section 2033(a).”  (Zorro Inv. Co. v. Great Pacific Securities Corp. (1977) 69 Cal.App.3d 907, 914, 138 Cal.Rptr. 410.)

The seminal case in the area of relief from deemed admitted facts is Elston v. City of Turlock (1985) 38 Cal.3d 227, 211 Cal.Rptr. 416, 695 P.2d 713.   In Elston the court reasoned that:  “Section 473 permits the trial court to ‘relieve a party ․ from a judgment, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise or excusable neglect.’   A motion seeking such relief lies within the sound discretion of the trial court, and the trial court's decision will not be overturned absent an abuse of discretion.  [Citations.]   However, the trial court's discretion is not unlimited and must be ‘ “exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.” ’ ”  (Fn. omitted.)  (Id., at pp. 232–233, 211 Cal.Rptr. 416, 695 P.2d 713.)

“Section 473 is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted.  [Citations.]   In such situations ‘very slight evidence will be required to justify a court in setting aside the default.’ ”  (Fn. omitted.)  (Id., at p. 233, 211 Cal.Rptr. 416, 695 P.2d 713.)

“Moreover, because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default․   Therefore, a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits.”  (Ibid.)

“Where, as here, the trial court denies the motion for relief from default, the strong policy in favor of trial on the merits conflicts with the general rule of deference to the trial court's exercise of discretion.  [Citation.]   Unless inexcusable neglect is clear, the policy favoring trial on the merits prevails.  [Citation.]   Doubts are resolved in favor of the application for relief from default․   Reversal is particularly appropriate where relieving the default will not seriously prejudice the opposing party.”  (Id., at p. 235, 211 Cal.Rptr. 416, 695 P.2d 713.)

In Elston, the Court concluded that the trial court had abused its discretion by refusing to grant the section 473 motion to set aside deemed admissions on the ground of excusable neglect.   By affidavit, counsel stated that because two attorneys had recently left the firm, his office was understaffed at the time the request was received and that he was extensively involved in other business and litigation matters at the time.  (Id., at p. 234, 211 Cal.Rptr. 416, 695 P.2d 713.)   By supplemental affidavit, counsel also declared that because his office was shorthanded, the request had been misplaced, and he was not aware of it until he received the deemed admitted notice.  (Ibid.)

 Appellants argue that respondent failed to establish inexcusable neglect.   It was not respondent's burden to establish inexcusable neglect.   It was appellants' burden to establish excusable neglect.  “In general, a party who seeks relief under section 473 on the basis of mistake or inadvertence of counsel must demonstrate that such mistake, inadvertence, or general neglect was excusable ‘because the negligence of the attorney ․ is imputed to his client and may not be offered by the latter as a basis for relief.’  [Citation.]   The client's redress for inexcusable neglect by counsel is, of course, an action for malpractice.”  (Emphasis added.)  (Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 898, 187 Cal.Rptr. 592, 654 P.2d 775.)

At times, appellants state that when a party moves promptly for relief and there is no evidence of prejudice, then the policy of trial on the merits must prevail.   That statement is not an accurate reflection of the law.   It was settled as early as 1914, that when a party in default makes a timely application to be relieved from the default and the responding party makes “no showing that he has suffered any prejudice or that injustice will result from the trial of the case upon its merits, very slight evidence will be required to justify a court in setting aside the default.”  (Emphasis added.)  (Berri v. Rogero (1914) 168 Cal. 736, 740, 145 P. 95.)

In Carroll, the Court noted that:  “We have, however, found no case which permits the setting aside of a judgment in spite of inexcusable neglect, simply because the other side has not been prejudiced.”  (Carroll v. Abbott Laboratories, Inc., supra, 32 Cal.3d 892, 900, 187 Cal.Rptr. 592, 654 P.2d 775.)   Appellants do not cite us to any case decided after Carroll with such a holding.   Thus, the prerequisite to relief from deemed admissions, even in the absence of a showing of prejudice, is “very slight evidence.”

In Elston, the court's discussion of the fact that the propounding party had not alleged prejudice, followed the court's determination that the responding party had showed excusable neglect.  (Elston v. City of Turlock, supra, 38 Cal.3d at pp. 234–235, 211 Cal.Rptr. 416, 695 P.2d 713.)   Hence, the court looked to the lack of prejudice as a factor after it had determined that the party had showed excusable neglect.

We note that:  “In order to qualify for relief under section 473, the moving party must act diligently in seeking relief and must submit affidavits or testimony demonstrating a reasonable cause for the default.”  (Emphasis added.)  (Id., at p. 234, 211 Cal.Rptr. 416, 695 P.2d 713.)

As we recently observed:  “if a party shows that a judgment has been taken against him through his mistake, inadvertence, surprise or excusable neglect the court may grant relief.   Or it may not.   It has discretion.   But if a party fails to show that a judgment has been taken against him through his mistake, inadvertence, surprise or excusable neglect the court may not grant relief.   It has no discretion.”  (Iott v. Franklin (1988) 206 Cal.App.3d 521, 528, 253 Cal.Rptr. 635.)   The burden of establishing excusable neglect is upon the party seeking relief who must prove it by a preponderance of the evidence.  (Ibid.)  As we noted in Iott, excusable neglect is “[a] broader term than ‘mistake’ and one which for our purposes encompasses ‘mistake, inadvertence, and surprise.’ ”  (Id., at p. 528, fn. 8, 253 Cal.Rptr. 635.)

In summary, in the trial court, appellants had the burden of producing, by way of affidavits or testimony, very slight evidence that the judgment entered against them was the result of excusable neglect.   Do the affidavits filed in conjunction with appellants' section 473 motion contain any evidence, however slight, of excusable neglect?   We must answer that question in the negative.   The declarations do not support appellants' claim to relief based on an inadvertent error.

Focusing on the wording of the declaration, we initially note that the only factual statement contained in the declaration of appellants' counsel 3 is that:  “Bryant L. Morris is the sole proprietor of Bryant L. Morris Development.   Mr. Morris is also the president of Raging Waters, Inc., which is a fifty percent partner in Raging Waters, a partnership.”   A similar declaration from Bryant L. Morris was filed at the time of the hearing on the section 473 motion.

Secondly, the declarations fail to state that Morris is capable of verifying the responses for appellants.   Concentrating on the amended responses and the points and authorities filed with the section 473 motion, it becomes obvious, however, that Morris was so authorized.   But, even assuming that Morris could have verified the responses, the real problem is that the declarations contain no explanation, much less any facts supporting such an explanation, as to why the responses to the RFAs were not verified on behalf of appellants.

In all the cases cited by appellants, the attorney had filed affidavits attempting to explain why the party was entitled to relief.   Even taken into consideration appellants' reference in their brief to the error here as nonwillful and easily remedied, that is not an explanation as to how it happened.   Appellants' section 473 motion and their appellate brief refer to an inadvertent mistake.

We observe that the notice of motion for relief pursuant to section 473, which was signed by the same trial counsel who prepared one of the declarations in support of the motion, stated that:  “This motion is made on ground that the verification of the response to the request for admissions inadvertently did not specifically state that Bryant L. Morris' signature was on behalf of himself as individual as well as an officer of the moving entities.”   However, even considering both the notice and the accompanying memorandum of points and authorities, all that is stated is a legal conclusion that counsel's inadvertence led to the omission.   No facts from which such a conclusion could be derived are set forth.

 Inadvertence is defined as lack of heedfulness or attentiveness, inattention, fault from negligence, and excusable neglect pursuant to section 473 is defined as that neglect which might have been the act of a reasonably prudent person under the same circumstances.  (Kooper v. King (1961) 195 Cal.App.2d 621, 626, 15 Cal.Rptr. 848.)   In Kooper, the court reasoned that:  “ ‘it should, therefore, appear that something more than mere inadvertence or neglect without reasonable excuse or justification existed, and that the inadvertence or neglect in question was not the result of mere forgetfulness on the part of the person or official charged with the duty of responding to the legal process in due time, but that such inadvertence or neglect was based upon the circumstances which would suffice to render the same excusable․’ ”  (Ibid.)   In our opinion, any inadvertence in failing to properly verify the RFAs appears to have been the result of inattentiveness and not the act of a reasonably prudent person.

Appellants suggest that the error here is not the type of egregious conduct which constitutes inexcusable neglect as set out in Carroll.   We note that Carroll dealt with a failure to respond to a production request, not to RFAs.   As observed by the Court itself in Elston v. City of Turlock, supra, 38 Cal.3d 227, 236, 211 Cal.Rptr. 416, 695 P.2d 713,  “Carroll did not explain the distinction between excusable and inexcusable neglect.   The trial court in Carroll found the attorney guilty of ‘gross negligence.’   As a result, this court assumed the existence of inexcusable neglect, dismissing plaintiff's ‘half-hearted’ attempt to argue that the neglect should be excused.”   In Elston, the Court noted that Carroll discussed the general rule that an attorney's inexcusable neglect is imputed to his client and narrowly interpreted the “positive misconduct” exception to that rule, holding that the exception applied only where the attorney's misconduct effectively severed the attorney-client relationship.  (Ibid.)

Thus, neglect can be broken down into excusable and inexcusable neglect, with inexcusable neglect being further broken down into inexcusable neglect which is imputed to the client and inexcusable neglect which is so egregious that it will not be imputed to the client.   Appellants make no claim that the conduct here would fit into the “positive misconduct” exception, and we do not think that such an argument would have any merit.

Appellants place heavy emphasis on the conduct of respondent's counsel in sending a letter of deemed admissions on the day after the responses were received and knowing that Morris was capable of verifying the responses just as he had done on the responses to interrogatories, which were served on the same day as the responses to the RFAs.   We cannot help but note that the responses to the interrogatories can also be seen as an indication that appellants' counsel knew the proper method of verification.

Appellants cite Robinson v. Varela (1977) 67 Cal.App.3d 611, 136 Cal.Rptr. 783 and Smith v. Los Angeles Bookbinders Union (1955) 133 Cal.App.2d 486, 284 P.2d 194 disapproved on another point in MacLeod v. Tribune Publishing Co. (1959) 52 Cal.2d 536, 551, 343 P.2d 36, for the proposition that the court should have considered the conduct of respondent's counsel in rushing to take appellants' default and that such quiet speed by itself is a ground for reversal of the judgment as they did not have any warning of the default or an opportunity to cure it.   First, respondent did not take appellants' default, it sent a deemed admitted notice which later formed the basis for a judgment on the pleadings.   Second, both Robinson and Smith were cases in which the appellate court affirmed the trial court's granting relief from default.   Here, we are faced with the trial court's denial of relief.   Third, the letter constituted a warning, and appellants had an opportunity to cure the error by way of their section 473 motion.

The central question before us is whether the trial court abused its discretion in denying relief.   In terms of deference to the trial court, we reiterate that:  “ ‘The question to be determined by the appellate court is not what it would have done had it been sitting in the place of the trial judge, but whether from the record it can be said that the trial judge failed to act wisely, reasonably and fairly in view of what was presented to him in support of the application.   If such failure does not clearly and unmistakably appear, it cannot be said that the trial judge abused his discretion, and his decision should be affirmed.’ ”  (Iott v. Franklin, supra, 206 Cal.App.3d 521, 527, 253 Cal.Rptr. 635.)

In Smith v. Los Angeles Bookbinders Union, supra, 133 Cal.App.2d 486, 500, 284 P.2d 194, the court reasoned that:  “The quiet speed of plaintiffs' attorney in seeking a default judgment without the knowledge of defendants' counsel is not to be commended․   This fact, coupled with the other circumstances already mentioned, adequately justified the court's ruling in favor of a trial on the merits.”   In Robinson v. Varela, supra, 67 Cal.App.3d 611, 616, 136 Cal.Rptr. 783, one of the possible alternative grounds for granting relief was the quiet taking of default on the first day on which the answer was due without giving prior notice.   These cases are inapposite, as appellants in this instance had notice of the deemed admissions and an opportunity to seek relief before the judgment was entered.

 It is true that in ruling on a motion for relief from default, a trial court may consider the conduct of the parties after the default.   (Kaiser Steel Corp. v. Westinghouse Elec. Corp. (1976) 55 Cal.App.3d 737, 745, 127 Cal.Rptr. 838.)   In Kaiser, no notice of default had been sent to the responding party expressing the propounding party's intent to rely on the deemed admissions and both parties had proceeded through extensive discovery and a flurry of pretrial motions all directed at the existence of factual issues concerning the matters which had been deemed admitted.  (Ibid.)  In the instant case, not only did respondent send to appellants prompt notice of the deemed admissions, but there was an absence of activity which could have misled appellants into thinking they had cured the deficiencies.  (Zorro Inv. Co. v. Great Pacific Securities Corp., supra, 69 Cal.App.3d 907, 920, 138 Cal.Rptr. 410.)

Had respondent failed to promptly notify appellants of its intent to rely on the deemed admissions, or engaged in activity indicating a lack of intent to rely on the admission, then appellants might have an argument for relief under the reasoning of Kaiser and Zorro, but such was not the case in this instance.   Respondent's letter of July 10, 1986, constitutes prompt notice of the deficiency and of respondent's intention to rely on appellants' failure to properly respond to the requests for admission.   We conclude that under the facts of this case, any “quiet speed” on the part of respondent's attorney is not a basis by itself to reverse the trial court's denial of relief for an abuse of discretion.

Given appellants' failure to establish excusable neglect and the fact that this case is controlled by former section 2033, we therefore attach no significance to the subsequent repeal of the former section and enactment of a new section 2033, but instead rely on legislation which was in force at the time of the events in this case.   No one has contended in this matter that new section 2033 was intended or could be applied retroactively in this matter.

As quoted in Carroll v. Abbott Laboratories, Inc., supra, 32 Cal.3d 892, 900, 187 Cal.Rptr. 592, 654 P.2d 775 (and also cited by Chief Justice Lucas in his dissent in Elston ):  “ ‘The policy that the law favors trying all cases and controversies upon their merits should not be prostituted to permit the slovenly practice of law or to relieve courts of the duty of scrutinizing carefully the affidavits or declarations filed in support of motions for relief to ascertain whether they set forth, with adequate particularity, grounds for relief.  [Fn. omitted.]   When inexcusable neglect is condoned even tacitly by the courts, they themselves unwittingly become instruments undermining the orderly process of the law.’ ”

II. The Trial Court Did Not Abuse Its Discretion In Ruling That The Cross–Complaint Was Barred

Citing Carman v. Alvord (1982) 31 Cal.3d 318, 326, 182 Cal.Rptr. 506, 644 P.2d 192, appellants contend that the court abused its discretion in ruling that the term “indebted” as used in one of the RFAs required dismissal of the cross-complaint since the term has no fixed meaning and is to be construed in each case, and therefore the court should have used a definition allowing for trial on the merits.   The court found that the term “indebted” as used in RFA number 11 meant that appellant owed $269,196.98 to respondent and precluded the consideration of any affirmative defenses or set-offs, and thereafter, judgment was entered in respondent's favor on the cross-complaint.

 RFAs are not discovery devices, but rather are used to obtain admission of uncontroverted facts and to narrow the issues and save the time and expense of preparing for unnecessary proof.  (Fredericks v. Kontos Industries, Inc. (1987) 189 Cal.App.3d 272, 276, 234 Cal.Rptr. 395.)   Furthermore, although the court retains the discretion to determine the scope and effect of an RFA, the more narrow the language of the RFA, the less opportunity the court has to determine its scope and effect.  (Id., at p. 277, 234 Cal.Rptr. 395.)   In the present case, the court stated that the term was not vague and carefully considered its meaning.

 Since the judgment is supported by the deemed admissions, we need not address appellant's contention that they did not make judicial admissions that they had no defense, thus necessarily barring the cross-complaint.   However, their argument regarding the worst case scenario does lend support to the reasonableness of defining the term “indebted” to preclude affirmative defenses and set-offs.   Furthermore, although appellants may not like the fact that the court used such a definition, RFAs often contain ultimate conclusions.   For instance, the RFAs in Elston concerned the ultimate issue, in essence asking the plaintiff to admit that he had no case.  (Elston v. City of Turlock, supra, 38 Cal.3d 227, 231, 211 Cal.Rptr. 416, 695 P.2d 713.)   Accordingly, we conclude that the trial court did not abuse its discretion by defining the term to mean the amount owed by appellants to respondent inclusive of affirmative defenses and set-offs.


The judgment is affirmed.   Respondent to recover costs on appeal.

I respectfully dissent.

This case supplies a prime illustration of how some lawyers in the past abused the unilateral “deemed admitted” procedure.   As in this case, they attempted to turn their opponents' minor miscues in responding to requests for admissions into unearned victories.   Largely because of these abuses, the Legislature amended Code of Civil Procedure section 2033 1 effective July 1, 1987.   Indeed had the amended version of section 2033 2 been in effect in 1986, this appeal would not be before us.   For, under this current law respondent could not have unilaterally decided to declare its requests for admission “deemed admitted.”   Instead respondent would have been required to file a motion with the court asking the court to order those requests deemed admitted.   Appellants then would have had the opportunity to avoid that order by refiling their responses with a full verification as a matter of right any time before the hearing on respondent's motion.

This dissent, of course, is not based on disagreement with the former “deemed admitted” procedure.   Wise or unwise, fair or unfair, it was the law at the time this case was decided in the trial court.   Rather I am dissenting because, under the law as it existed at the time, the trial court abused its discretion in denying appellants' motion to amend its verification to cure a minuscule, inadvertent, non-prejudicial omission.

Contrary to the implication of the majority opinion, under section 473 the trial court is to look at all the circumstances—not just what the moving party may or may not have placed in an affidavit—in judging whether relief should be granted.   Indeed nothing in section 473 suggests courts are foreclosed from deciding there are grounds for relief solely on the basis of the application itself, other documents filed in the case, the history of the proceedings, and other circumstances.   The courts need not have “evidence” which would be admissible in a trial to decide whether to relieve a party for its “mistake, inadvertence, surprise or excusable neglect.”   This is particularly true when, as here, the only relief initially requested is to amend a verification rather than to vacate a judgment.

While appellants did file a declaration here, it was not necessary this declaration recite all the justification supporting the requested amendment of the verification.   Even if the “slim evidence” of “excusable neglect” the majority purports to seek is required—and I question it is, for reasons to be discussed below—it is clear this “evidence” is not limited to the four corners of appellants' declaration.   To fully appreciate why I conclude the total circumstances—not merely the contents of appellants' declaration—demonstrate appellants were entitled to amend the verification, it may be useful to briefly summarize the more salient facts.

1. A Brief Restatement of the Essential Facts.

Respondent served appellants with two types of discovery documents—requests for admissions and interrogatories.   Appellants sent respondent timely and complete responses to both of these discovery requests.   Indeed these responses were sent and presumably received on the very same day.   The verifications for both responses were signed by the same person.   The verification attached to the response to interrogatories recited this person had the capacity to verify for all appellants.   The verification attached to the companion document—the response to request for admissions—did not contain that brief paragraph.

Respondent's lawyers thus had in their possession two companion discovery documents, both timely filed and both complete responses to the substance of their discovery requests.   One of these discovery documents recited the person verifying the responses had the capacity to do so for all defendants, the other omitted that recitation.   Did respondent's lawyers notify appellants' lawyers of this readily apparent inadvertent omission, and ask for a revised, complete verification for the responses to requests for admissions?   Or, did they seek a clarification of the inconsistency between the two verifications? 3  No.  Instead the very next day after receiving the two responses they sent a “deemed admitted” notice as to the requests for admission, including those admissions which essentially conceded away appellants' entire case.

After receiving this “deemed admitted” notice, appellants timely moved to amend the verification to their response to requests for admission.   In the motion to amend, signed by counsel, their lawyers specifically attested this was an “inadvertent” omission.   They also attached a declaration—originally from counsel, but eventually from the verifying party—reciting the verifying party indeed had the “capacity” to sign responses to discovery documents for all appellants.   They also included “points and authorities” highlighting this inadvertent omission was far less egregious than those mistakes, inadvertences, surprises and excusable neglects where the courts have granted relief in earlier cases.

2. Some Preliminary Differences in the Characterization of Facts.

Those are the facts.   That is the full extent of appellants' error.   The majority opinion attempts to characterize this omission of a single brief paragraph as if it were in the same league with an outright neglect to file any response at all to a request for admissions.  “An unsworn response is no response at all.”

Is this really a fair characterization of what happened here?   A complete response was filed indicating it was filed on behalf of all defendants.   It was a sworn response.   All it lacked was a single short paragraph, inadvertently omitted, reciting the swearing party had the capacity to swear for all defendants.   Moreover, the receiving party knew the swearing party had that capacity because of an accompanying verification reciting that same swearing party indeed had the capacity to swear for all defendants and for the same reasons, that is, his sole proprietorship of one entity, his presidency of another, and his partnership in the third.

The majority likewise argues appellants' declaration accompanying its motion to amend the verification did not affirmatively state the swearing party had the capacity to verify the responses for appellants.   But as the majority's own quotation from the declaration shows, the declaration did recite all the facts which give one the capacity to verify for the defendant entities—his sole proprietorship of one entity and his presidency of another and his partnership in the third.   Are parties to presume the audience for these declarations—the trial courts—are incapable of drawing inescapable inferences and must be told the obvious?   I trust we have not descended to this still lower level of hypertechnicality.

3. Assuming Appellants Must Establish “Excusable Neglect,” Appellants' Motion for Relief Attesting Their Inadvertent Error Along With the Declaration of the Verifying Party's True Capacity and Surrounding Circumstances Are Sufficient to Satisfy Section 473.

The majority has denied relief to the appellants because it contends no evidence was submitted to explain why the verification was defective.   I submit, however, whether and what type and how much evidence is required to explain an error is relative to the degree and kind of error committed.   Indeed, “very slight evidence” is what the majority purportedly seeks.   Yet, considering the type of “inadvertent” error appellants committed, one might ask just what type of “slight evidence” is sufficient under section 473 to explain this minor accident?

In considering this question, reasonableness must guide this court.   (Brochtrup v. INTEP (1987) 190 Cal.App.3d 323, 329, 235 Cal.Rptr. 390.)   The reasonable answer for this case is that appellants' declarations and motion for relief, attesting to inadvertent error, demands no more in this context.   The majority's hypertechnical requirement that affidavits or exhibits must be submitted to explain exactly how this inadvertent error occurred is unreasonable—especially where the error is so minor and it is relief from dispositive deemed admissions that is sought.   After all, in context, this error was not much worse nor more consequential than misspelling a word or transposing a phrase.   When error is of this magnitude, as long as the party acknowledges the error and states it was inadvertent—not some sort of misguided attempt to flaunt the legal system—the court has enough information to justify allowing amendment to cure the error.

Such an interpretation is justified by the law's preference for construing section 473 liberally so cases can be tried on the merits and to provide substantial justice.  (Elston v. City of Turlock (1985) 38 Cal.3d at p. 233, 211 Cal.Rptr. 416, 695 P.2d 713.)

Appellants have expressly attested to their error in their motion for relief and have requested to correct it.   Nothing is served by requiring a recitation of precisely how the word processor malfunctioned or the secretary left out a paragraph in the verification, or whatever.   Indeed, it is difficult to imagine any explanation for an error of this minuscule magnitude which would or could be deemed “inexcusable.”   Accordingly, refusing the appellants' request for relief was an abuse of discretion by the trial court.

The majority quotes from opinions saying the courts have “the duty of scrutinizing carefully the affidavits and declarations filed in support of motions for relief to ascertain whether they set forth, with adequate particularity, grounds for relief.”  (Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 900, 187 Cal.Rptr. 592, 654 P.2d 775.)   They imply this language constitutes a holding that relief can never be granted in the absence of affidavits or declarations demonstrating a particular excuse for the error.   However, this language does not constitute a holding to that effect.   It only states that where the evidence provided by affidavits and declarations is necessary in order to determine whether grounds exist those affidavits and declarations must be scrutinized closely.

Language of this nature has no application here.   It is found in cases where the lawyers were guilty of serious neglect—typically the failure to file a pleading or other required document—or intentional refusal to comply with orders.   Evidence in the form of affidavits or declarations was necessary because the error was so serious it was prima facie inexcusable.   Affidavits and declarations also were necessary because the surrounding circumstances shed no light on the error at all or were consistent with many possible scenarios which would make the error in excusable:  The party's lawyer did not know the law, or carelessly threw the complaint in the wastebasket, or went on a two-month vacation without arranging for coverage, etc., etc., etc.

In contrast, the instant case involves a trivial error—not the outright failure to file a pleading or other document—but the omission of a sentence or two from what was filed.   Moreover, the surrounding circumstances demonstrate appellants' law firm was aware of the law and knew how to properly verify a response and was more than willing to do so.   All appellants asked was the opportunity to insert the missing sentence, something they could have done without court intervention, if respondent had not declared the requests “deemed admitted” the very next day.   The type of error was so minor and so easily made a court could not deem it “in excusable” no matter the particulars of how it happened.   This was error of a degree and kind which is prima facie excusable and requires no “close scrutiny” of affidavits and declarations to determine relief is appropriate.

The majority's reliance on Kooper v. King (1961) 195 Cal.App.2d 621, 15 Cal.Rptr. 848 to find the appellant was not acting as a reasonably prudent person likewise is inappropriate.  Kooper is distinguishable because it dealt with a circumstance far more egregious than the appellants' mistake, namely, the classic “neglect” of missing a filing deadline for an answer.   The appellants in the instant case did not miss a deadline, but timely filed their response.   The majority quotes language from Kooper stressing relief should be not be granted unless it appears that “ ‘something more than mere inadvertence ․ existed ․ and that the inadvertence ․ was not the result of mere forgetfulness․' ”   This is a fair statement of the law when the error is something as serious as the outright failure to file a required pleading or document.   But are we really ready to say “mere forgetfulness” or its equivalent disqualifies one from the ability to amend a document to correct a significant typewriting error or to insert an omitted word—such as a “not”—or, as here, a missing sentence.

Even applying Kooper's definition of excusable neglect as that “which might have been the act of a reasonably prudent person under the same circumstances,” (id. 195 Cal.App.2d at p. 626, 15 Cal.Rptr. 848) it can hardly be argued a reasonably prudent person is not prone to the accidental filing of a not quite complete verification.   The majority seems to expect the “reasonably prudent person” to be the “perfectly performing person.”   Reasonably prudent persons may not make big errors, but they quite regularly make minor ones.   And this was indeed a minor one.

Furthermore, there is nothing in the record to support the majority's determination the appellants' mistake was the result of general inattentiveness on the part of appellants and not the act of a reasonably prudent person.  (Maj. opn., p. 774.)   Instead the record shows appellants were prudent and attentive:  the substance of the response was complete in all respects and timely filed;  the motion to amend to correct the minor omission in the verification was likewise timely.

The majority strictly applies an evidence requirement that was meant to deter attorneys from willfully neglecting the justice system.  (See, e.g., Carroll v. Abbott Laboratories, Inc., supra, 32 Cal.3d 892, 187 Cal.Rptr. 592, 654 P.2d 775 [attorney disobeyed two orders to produce documents then sought section 473 relief].)  The record is not only devoid of willful neglect, but instead clearly demonstrates the appellants attempted compliance.   The appellants filed a timely and complete response to the respondent's request for admissions and upon learning of the defect in the verification, moved within the statutory period to amend.   If any type of punishment is to be levied against appellants for this minor inadvertent mistake it should be a lesser sanction than denying them their day in court.  (See Elston, 38 Cal.3d at p. 239, 211 Cal.Rptr. 416, 695 P.2d 713 (Kaus, J., concurring).)

The strict evidence requirement the majority applies is inconsistent with the language and rationale of section 473.   The majority's strict evidence requirement denies appellants the opportunity to correct the minor error in the verification solely because the affidavit they elected to file did not recite some detailed explanation of how this technical error came about.   Instead the relevant case law demands an assessment of the error in light of the law's preference for the use of reasonableness, trial on the merits, and substantial justice.  (Elston, 38 Cal.3d at p. 233, 211 Cal.Rptr. 416, 695 P.2d 713.)   I consider these additional factors in the succeeding sections.

4. Permitting Dispositive Requests for Admissions to Stand as “Deemed Admitted” Because of a Minor Omission in the Verification of the Response Is Unreasonable.

As stated above, reasonableness in view of all the circumstances is well established as the test of whether discretion has been abused.   (Brochtrup, supra, 190 Cal.App.3d at p. 329, 235 Cal.Rptr. 390.)   The very purpose of requests for admissions indicates denial of relief from a trivial error is unreasonable.   Requests for admissions are designed to eliminate issues of fact during discovery not as a substitute for summary judgment or request for default judgment.  (Zorro Inv. Co. v. Great Pacific Securities Corp. (1977) 69 Cal.App.3d 907, 920, 138 Cal.Rptr. 410.)   Here, RFA numbers 11 and 12 ask the appellants to admit they have no defense and clearly are not designed to narrow the case for discovery but to obtain an outright confession of liability.   As stated by the court in Elston v. City of Turlock, supra, 38 Cal.3d at page 235, 211 Cal.Rptr. 416, 695 P.2d 713 in reversing a trial court's denial of relief from similar deemed admissions, “the request at issue here did not include issues as to which the parties might conceivably agree.”

It is worth noting that neither the respondent nor the majority cite any case where such dispositive RFAs were permitted to be deemed admitted.   Rather, the “seminal” case on which the majority relies, Elston v. City of Turlock, reversed such “deemed admitted” RFAs. (Id. at p. 238, 211 Cal.Rptr. 416, 695 P.2d 713.)

5. Denying Relief for This Minor Error Does Not Comport with the Law's Strong Preference for Trial on the Merits.

Trial of a cause of action on the merits is the cornerstone of our justice system and it is no wonder the law looks with disfavor on dismissal for procedural default.  (Waite v. Southern Pacific Co. (1923) 192 Cal. 467, 471, 221 P. 204.)   Such dismissal is even harder to swallow when the default is a mere technicality and the record evinces no intent by the appellants to willfully disrespect the court.   Rather, as stated above, the record shows the appellants fully completed and timely filed their response to the RFAs and, upon learning of the defect, moved to correct it within the statutory time period.   In addition to the minor nature of appellants' error, their compliance with procedure mitigates in favor of excusing the defect.

The test is not, as the majority implies, whether appellants proved their inadvertence was excusable.   When, as here, dispositive “deemed admitted” RFAs are at stake, the Elston court stated the test in no uncertain terms:  “Unless inexcusable neglect is clear, the policy favoring trial on the merits prevails.  (Ibid.)  Doubts are resolved in favor of the application for relief from default and reversal of an order denying relief results.”   (Elston, supra, 38 Cal.3d at p. 235, 211 Cal.Rptr. 416, 695 P.2d 713, italics added.)

The majority opinion turns this test on its ear and denies relief because it finds it was not clear appellants' neglect—assuming such a minor technical oversight qualifies as neglect—was excusable.   Whatever might be said about the state of the evidence on this question, it is quite apparent there could be no finding “inexcusable neglect is clear” in appellants' omission of a part of the verification from an otherwise complete, timely filed response.   On this question, and for reasons recited above, the circumstances of this case speak for themselves.   Accordingly, under Elston, the “policy of trial on the merits prevails.”

6. Refusing Relief from This Minor Omission Denies Substantial Justice.

Denying appellants the opportunity to defend against allegations of wrongdoing for the simple reason a verification was attempted but defective is not only contrary to the law's preference for trial on the merits, it impedes the ends of substantial justice.  (See Elston, supra, 38 Cal.3d at p. 233, 211 Cal.Rptr. 416, 695 P.2d 713.)   In deciding an analogous issue, the Elston court stated, “The attorney's failure to respond in a timely manner [to the request for admissions] was inadvertent rather than dilatory, and defendants suffered no prejudice as a result of the delay․  [¶] Under these circumstances, the interests of substantial justice as well as the policy in favor of trial on the merits require that the default be excused.”  (Elston, supra, 38 Cal.3d at p. 238, 211 Cal.Rptr. 416, 695 P.2d 713, italics added.).

The remedial purpose of section 473 alone supports favoring substantial justice (Kooper v. King, supra, 195 Cal.App.2d at 625, 15 Cal.Rptr. 848) and the courts have consistently used the statute to grant relief when the equities outweigh the error.  (See, e.g., Elston v. City of Turlock, supra, 38 Cal.3d 227, 211 Cal.Rptr. 416, 695 P.2d 713;  Robinson v. Varela (1977) 67 Cal.App.3d 611, 136 Cal.Rptr. 783;  Brochtrup v. INTEP, supra, 190 Cal.App.3d 323, 235 Cal.Rptr. 390;  and Carli v. Superior Court (1984) 152 Cal.App.3d 1095, 199 Cal.Rptr. 583.)

The equities outweigh the error in the instant case by a far wider margin than in the cases cited above.   In those cases, relief was granted despite the fact the errors presented an opportunity for delay or abuse and were far more egregious than accidentally attaching an incomplete verification to an otherwise complete and timely filed response.   Nothing in the record suggests appellants omitted the capacity allegation from the verification for purposes of delay.   Indeed it is difficult to see how this omission could delay discovery in any way.   The caption on appellants' response to the RFAs clearly states that the answers were from all defendants.   Moreover, appellants' responses to interrogatories, which were served the same day, were accompanied by a verification which recited the very information missing from the RFA verification.   Consequently, respondent was not misled or confused in any way about who or what persons and entities were responding to the discovery requests, including the requests for admission.

Also significant on the issue of substantial justice is the fact the respondent would not be prejudiced in the slightest by granting the appellants relief from the deemed admissions.   The majority sweeps aside the lack of prejudice as virtually irrelevant by stating that “[T]he [Elston ] court looked to the lack of prejudice as a factor after it had determined that the party had showed excusable neglect.”  (Maj. opn., at p. 773.)   The majority considered the evidence issue dispositive and apparently neglected the prejudice issue.   But failing to consider prejudice does not comport with the clear language of Elston which stated, “Reversal is particularly appropriate where relieving the default will not seriously prejudice the opposing party. ”  (38 Cal.3d 227 at p. 235, 211 Cal.Rptr. 416, 695 P.2d 713, italics added.)   Thus, contrary to the majority opinion, under Elston the lack of prejudice to the respondent in granting relief to the appellants is one of the most significant factors to be taken into consideration in deciding whether the trial court's denial of relief should be reversed.

Accordingly, substantial justice requires the appellants be permitted to amend their verification in light of the lack of prejudice to the respondent, the purpose of the requests for admissions, and the appellants' good faith effort to comply with procedure.

7. Conclusion.

Considering the purpose of section 473, the jurisprudence demanding a liberal interpretation of that section, and the reasonableness of granting relief, the majority, and courts of California, are not bound to require evidence of exactly how a mistake was made in every case.   Instead they must make that determination based upon all the circumstances.

The circumstances of this case indicate further evidence, in the form of explanatory affidavits, is unnecessary and indeed a waste of time.   Appellants have already attested this minor technical omission was inadvertent.   No imaginable scenario could make this omission “clearly in excusable,” even assuming the worst—that a secretary or lawyer was “forgetful” or “careless” in typing the verification or assembling the documents to be included in the response.   As part of a pattern of forgetfulness or carelessness, conceivably this omission might have been deemed “in excusable.”   But here, once again, the circumstances reveal appellants' law firm was timely, thorough, and diligent in all other aspects of its preparation and service of this response and the accompanying response to interrogatories.   There was no danger this firm was engaged in the “slovenly practice of law” in this case.   Instead they made a single mistake, one of a type I venture the best of lawyers make, and judges as well, more than once in their careers.   It is inconceivable there could be a reason for this inadvertent omission which would be so “inexcusable” as to justify the punishment of denying appellants their day in court to defend against a nearly half million dollar judgment.   Furthermore, respondent was not prejudiced in any way by the omission.   Indeed it was fully aware of the information omitted from this verification because the same information was contained on another verification respondent received the same day.

Consequently, in accordance with the law's preference for reasonableness, trial on the merits and substantial justice, the trial court should have permitted appellants to amend their verification.   To deny appellants an opportunity to correct a minor technical error—and thereby to deprive them of their day in court—on a further technicality that they didn't introduce evidence to prove the obvious is to elevate form over substance.

In policy terms, I am worried about the majority opinion in this case for two reasons.   First, there is a very real danger the decision sacrifices justice on an altar of hypertechnical proceduralism.   To deny a party its day in court and thereby impose a half million dollar judgment on it without any hearing on the merits of the claim is to levy a punishment far out of line with the “crime”—the simple inadvertent omission of a single paragraph from one of two verifications prepared and submitted to the same opposing counsel in the same case on the same day.

Secondly, I am equally disturbed about the message this sort of decision sends to other parties who stand in the place of the respondent in this case, those whose opponents make some minor error in their responses to discovery requests, and the like.   The philosophy behind the Discovery Act of 1986 is to encourage the parties to work these things out among themselves instead of jumping on an opponent's every miscue in the hope of winning an unearned victory.   Meantime, speakers and columnists, many judges among them, constantly urge lawyers to restore professionalism and civility to the practice of law.

What could be a better illustration of that lack of professionalism and civility than what respondent's counsel did in this case.   The day after receiving the two responses, one with a verification certifying to the signer's capacity and the other copy obviously inadvertently omitting that fact, this law firm elected to try to capitalize on what they had to know was mere “inadvertence” by declaring the requests for admissions were “deemed admitted.”

The philosophy behind the Discovery Act as well as common courtesy and a sense of professionalism would have dictated the respondent's law firm instead call or write appellants' lawyers and ask them to cure the obvious and minor inadvertent omission in the second verification.   I fear we judges are only encouraging the loss of civility and the rise of “sharp practices” we decry when, as here, we allow those practices to pay off—in this case, to the tune of a half million dollars.

From this unhappy, unnecessary, and unfounded result I am compelled to dissent.


FN1. Unless otherwise noted, all statutory references are to the Code of Civil Procedure..  FN1. Unless otherwise noted, all statutory references are to the Code of Civil Procedure.

2.   Respondent notes that the second alleged judicial admission was contained in appellants' petition for a writ of mandate.

3.   We note that appellants' counsel for the purposes of this appeal were not their trial counsel.

1.   Section 2033(k), as amended, reads in pertinent part as follows:  “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, ․ [¶ ]  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 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․”  (Code Civ.Proc. § 2033(k), italics added.)

2.   All statutory references are to the Code of Civil Procedure.

3.   Was it likely—or even within the realm of possibility—this party had the capacity to verify responses to interrogatories but not to verify responses to requests for admissions?   If this was not a reasonable possibility, respondent was in no way misled by the omission in the one verification.   They knew the party signing the responses to requests for admission was authorized to speak for all appellants.   If interested in using these requests for admissions in their only legitimate role, as a means of narrowing issues and discovering evidence, respondent could have ignored the immaterial omission in the verification to the second discovery response or, alternatively, notified appellants and asked them to send a revised verification reciting the signing party's capacity.   Even if it were a reasonable possibility the signing party had the capacity to verify one discovery response but not the other, would not a party interested in using requests for admissions in their proper role have contacted appellants' lawyers and asked them to clarify the apparent inconsistency between the two verifications?

FRED WOODS, Associate Justice.

LILLIE, P.J., concurs.

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