ELSTON v. CITY OF TURLOCK

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Court of Appeal, Fifth District, California.

Robert C. ELSTON et al., Plaintiffs and Appellants, v. CITY OF TURLOCK et al., Defendants and Respondents.

Civ. 6831 (F000315), 6981 (F000382).

Decided: October 17, 1983

Canelo, Hansen & Wilson, Leonard Herr and James H. Wilson, Merced, for plaintiffs and appellants. Martin, Crabtree, Schmidt & Zeff, Nan Cohan Jacobs and Thomas D. Zeff, Cardozo, Nickerson, Martelli, Curtis & Arata, Paul L. Martelli, Modesto, for defendants and respondents, Stanislaus County and City of Turlock. Richard G. Rypinski, Gordon S. Baca, Ronald I. Harrison and Bruce M. Rosenthal, Sacramento, for defendant and respondent State of Cal. Diehl, Steinheimer, Riggio, Haydel, Mordaunt & Smith, M. Max Steinheimer and Joseph H. Fagundes, Stockton, for defendant and respondent Turlock Irrigation Dist.

OPINION

Plaintiffs in this personal injury action appeal from judgments of dismissal entered in favor of defendants City of Turlock, County of Stanislaus, Turlock Irrigation District and State of California.   The appeals have been consolidated for disposition by this court.   The dismissals were entered upon defendants' separate motions for summary judgment after the defendant County of Stanislaus' requests for admissions were deemed admitted by reason of plaintiffs' failure to answer them within the time permitted by Code of Civil Procedure section 2033, subdivision (a).   The principal issue on this appeal is whether the trial court abused its discretion under Code of Civil Procedure section 473 by refusing to set aside plaintiffs' default.

The plaintiffs are husband and wife.   The complaint alleges serious personal injuries to the husband as a result of an accident which occurred when his motorbike collided with another vehicle.   Plaintiffs allege the defendant public entities created a dangerous condition at the location of the accident in that there were visual restrictions and obstructions at the scene.

On June 1, 1981, pursuant to Code of Civil Procedure section 2033, subdivision (a),1 defendant County of Stanislaus properly served six requests for admissions upon the plaintiffs.   In compliance with section 2033, subdivision (a), the request contained in block letters, near the end thereof, the required notice regarding the consequence of failing to answer the requests for admissions within the time allowed.

The essence of these requests for admissions was that the defendant County of Stanislaus did not own, maintain or control the street where the accident occurred, and that the allegedly dangerous condition of the road was not created by the county nor did it have notice of the condition.   The county also requested admissions that the intersection was not in a dangerous condition, that plaintiff's injuries were not proximately caused by the alleged dangerous condition, and that the injuries did not occur in a way which was reasonably foreseeable.   The requests were not answered by plaintiffs within the 30 days allowed, nor was there a request for an extension of time in which to answer.   On August 13, 73 days after the service of the requests, pursuant to section 2033 defendant County of Stanislaus sent a certified letter to plaintiffs' counsel formally notifying plaintiffs that the requests for admissions had been admitted by reason of the failure to answer them.

On August 21 plaintiffs filed a motion pursuant to Code of Civil Procedure section 473 to set aside their default for failure to timely answer the requests, attached to which was their response to the requests for admissions.   The motion was supported by the declaration of plaintiffs' counsel, A.B. Canelo.   The declaration stated:

“I am the attorney of record for plaintiffs and am duly licensed to practice law in the State of California.

“Shortly after June 1, 1981, I received in my office from Thomas Zeff, attorney for defendant, COUNTY OF STANISLAUS, Request for Admission and Interrogatories.   Our office has been shorthanded in the number of attorneys here since two attorneys left earlier this summer.   I have been extensively engaged in litigation and business matters and because of my mistake and inadvertence did not prepare a response to these Request for Admissions prior to July 1, 1981.   On or about August 13, 1981 Mr. Zeff wrote to me and indicated these Request for Admissions had been deemed admitted.   I immediately called Mr. Zeff and informed him of my predicament, apologized for any inconvenience my inadvertence may have caused and offered to send him responses immediately.  [Defendant's counsel refused to set aside the default.]

“․ Discovery in this case is yet to begin and I am unaware of any prejudice that defendant may suffer as a result of the short delay in providing them with response to Request for Admissions.”

Attorney Canelo later executed a supplementary declaration which in relevant part stated:

“Because of the shorthandedness in our office the Request for Admissions became misplaced and I did not become aware of them until they were overdue.”

The motion to set aside the default was denied.   The defendants' ensuing motions for summary judgment were granted.

In 1977, the Legislature repealed former section 2033.  (Stats.1977, ch. 500, § 2, p. 1631.)   In 1978, the Legislature enacted the present section 2033.  (Stats.1978, ch. 12, § 3, pp. 70–71.)   Shortly thereafter, the section was amended.  (Stats.1978, ch. 265, § 1, pp. 549–550.)   The changes relevant here were:  (1) to require that the requests for admissions contain notice of the consequences of failure to respond within the time allowed;  (2) to extend the period for response from 20 days to 30 days;  and (3) to change the procedure for imposing sanctions for failure to respond within the time allowed.   Prior to the 1978 amendment, when a party failed to respond to a request for admissions within the period designated in the request or as extended by the trial court, the court was permitted (pursuant to Code of Civ.Proc., § 2034, subd. (a)) to issue an order either requiring that the party answer or deeming as admitted the matters for which admissions had been requested.  (See Stats.1974, ch. 732, § 4, p. 1624.)

Since the 1978 amendment, when a party served with a request for admissions fails to respond or object within the period designated in the request or as extended by the trial court, the requesting party may serve written notice on the served party by certified or registered mail, return receipt requested, that the requests for admissions have been deemed admitted.   Thus, the intervention of the court is no longer required.   When matters are deemed to have been admitted due to failure to respond, the admittee's only avenue of relief is by way of a Code of Civil Procedure section 473 motion for mistake, inadvertence, surprise or excusable neglect.   The motion must be made within 30 days after the party seeking the relief was served with the notice by certified or registered mail.   In contrast, under prior law, the same relief could be sought for periods in excess of six months.  (Kaiser Steel Corp. v. Westinghouse Elec. Corp. (1976) 55 Cal.App.3d 737, 744–745, 127 Cal.Rptr. 838.)

 The effect of the 1978 amendment is to insure that a party from whom an admission is sought is fully aware of the consequences of failing to respond, while at the same time to discourage dilatory conduct of an attorney by providing for the immediate sanction of having requested admissions deemed admitted and by limiting application for relief from this sanction to 30 days from the serving of the second notice on a party who failed to respond to the original request.

In Billings v. Edwards (1981) 120 Cal.App.3d 238, 244, 174 Cal.Rptr. 722, the court, in explaining the reason for the 1978 amendment, stated:

“[I]t is also clear that the emergency legislation was designed to forcefully expedite a conclusion to this specific form of pretrial discovery.   Early admissions of key facts or issues will inform all parties to the litigation of the merits of the case, and will hopefully lead to settlement or even dismissal of an action.   Such a result is a positive step in alleviating the heavy case loads facing our courts, which is a problem of concern to the Legislature.”

Adverting to the merits of the motion for relief, Code of Civil Procedure section 473 provides in pertinent part:

“The court may, upon such terms as may be just, relieve a party or his or her legal representative from a judgment, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise or excusable neglect.”

Recently, in Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 187 Cal.Rptr. 592, 654 P.2d 775, the Supreme Court made clear that for the purpose of passing upon a section 473 motion, an attorney's neglect, including gross neglect,2 is imputed to his client and may not be offered by the latter as a basis for relief.  (Id., at p. 898, 187 Cal.Rptr. 592, 654 P.2d 775.)   The court observed “[t]he client's redress for inexcusable neglect by counsel is, of course, an action for malpractice.  [Citations.]”  (Ibid., fn. omitted.)

The court further observed, quoting from Transit Ads, Inc. v. Tanner Motor Livery, Ltd. (1969) 270 Cal.App.2d 275, 282, 75 Cal.Rptr. 848:

“ ‘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.’ ”  (Carroll v. Abbott Laboratories, Inc., supra, 32 Cal.3d at p. 900, 187 Cal.Rptr. 592, 654 P.2d 775.)

Carroll further observed:

“It is well established that ‘ “a motion for relief under [Code of Civil Procedure] section 473 is addressed to the sound discretion of the trial court and in the absence of a clear showing of abuse thereof the exercise of that discretion will not be disturbed on appeal.” ’  [Citations.]”  (Id., at pp. 897–898, 187 Cal.Rptr. 592, 654 P.2d 775.)

The declaration of plaintiffs' attorney shows no more than that counsel was (1) shorthanded, (2) very busy, and (3) the request for admissions was misplaced.   It also states that defendant was not prejudiced by the delay.   We have concluded that these representations constitute neglect but not excusable neglect.   The declaration is conclusional in form.   There is a paucity of evidentiary facts supporting the conclusional statements.   For example, Attorney Canelo states he was shorthanded but does not reveal the number of attorneys in his firm.   He states he was busy but does not support that statement with facts specifically explaining what he was doing.   He represents that the request was misplaced because of the shorthandedness in his office.   We do not perceive the relationship between being shorthanded of attorneys and the misplacement of the request by Mr. Canelo.   Further, he does not state any facts regarding where it was misplaced or the circumstances under which it was misplaced or recovered.

 Misplacing the request for admissions did not constitute excusable neglect.  (Price v. Hibbs (1964) 225 Cal.App.2d 209, 217–218, 37 Cal.Rptr. 270.)   Shorthandedness or press of business does not excuse counsel's neglect.  (Dow v. Ross (1891) 90 Cal. 562, 563–564, 27 P. 409;  McManus v. Larson (1932) 122 Cal.App. 716, 720, 10 P.2d 523;  Willett v. Schmeister Mfg. Co. (1926) 80 Cal.App. 337, 340, 251 P. 932.)   Moreover, the defendant is not required to show prejudice.  (See Carroll v. Abbott Laboratories, Inc., supra, 32 Cal.3d 892, 187 Cal.Rptr. 592, 654 P.2d 775, where the Supreme Court noted that there is “no case which permits the setting aside of a judgment in spite of inexcusable neglect, simply because the other side has not been prejudiced.  [Citations.]”  (Id., at pp. 900–901, 187 Cal.Rptr. 592, 654 P.2d 775;  fn. omitted.))   There was no abuse of discretion.3

Plaintiffs' reliance on Zorro Inv. Co. v. Great Pacific Securities Corp. (1977) 69 Cal.App.3d 907, 138 Cal.Rptr. 410 is misplaced.   In Zorro, as here, the court considered the situation where a plaintiff sought relief from a default in failing to timely respond to requests for admissions.   The appellate court first noted that a trial court has discretion under Code of Civil Procedure sections 2033 and 2034, as well as section 473, to set aside a default in failing to respond to requests for admissions.  (Id., at p. 917, 138 Cal.Rptr. 410.)   The appellate court then went on to note several factors which the trial court should consider in exercising its discretion.   (Id., at pp. 919–920, 138 Cal.Rptr. 410.)

As respondent County of Stanislaus notes, Zorro is no longer viable authority.   As explained above, subsequent to the issuance of Zorro, section 2033 was repealed and then reenacted, changing the section in several significant respects.  (See Stats.1978, ch. 265, § 1, pp. 549–550;  Stats.1978, ch. 12, § 3, pp. 70–71;  Stats.1977, ch. 500, § 2, p. 1631;  also see Billings v. Edwards, supra, 120 Cal.App.3d 238, 174 Cal.Rptr. 722.)

At oral argument plaintiffs argued, without citation of authority, that the summary judgments as to the three defendant public entities other than the defendant County of Stanislaus were improper because the implied admissions were binding on the plaintiffs only as to the County of Stanislaus.

 Initially, we observe as to the defendant county that the language “deemed admitted” contained in section 2033, subdivision (a), has the effect of eliminating the facts admitted as issues in the case.  (Bank of America v. Baker (1965) 238 Cal.App.2d 778, 779, 48 Cal.Rptr. 165, cited with approval by the Supreme Court in Shepard & Morgan v. Lee & Daniel, Inc. (1982) 31 Cal.3d 256, 261, 182 Cal.Rptr. 351, 643 P.2d 968.)   Thus, the issues admitted cannot be contested by plaintiffs upon the defendant county's motion for summary judgment.

 The plaintiffs argue that as to the other defendants, however, the issues were not deemed admitted but would be only evidentiary facts which could be disputed by plaintiff on those defendants' motions for summary judgment.   Conceding, without deciding, that this contention may be true, the argument does not benefit plaintiffs.   Each of the defendants supported its motion for summary judgment with plaintiffs' implied admissions.   Plaintiffs submitted no declarations in opposition thereto.   Accordingly, there was no issue of fact before the trial court and it had no alternative but to grant the motions.  (See Joslin v. Marin Mun. Water Dist. (1967) 67 Cal.2d 132, 146–147, 60 Cal.Rptr. 377, 429 P.2d 889.)

The judgments of dismissal are affirmed.

I concur in the foregoing affirmance of the trial court's exercise of discretion.   Under the circumstances I would also have affirmed the trial court if it had reached a contrary conclusion to grant relief.   Having the ambivalence of a concurring justice, I add several thoughts.

The dissent presents a judicial solution to a legislative problem which has arisen because of the longtime inability of those who have been responsible for drafting and amending section 473 to spell out meaningful guidelines to be used by trial judges.   Although there is much to be said in support of the dissenting justice's views, if there is a need for a solution it is not in a judicial admonition to be more liberal here and less considerate there.   A “more or less” guideline will not help the civil law and motion calendar judge or reviewing courts.   Neither will it promote better office practices.   A legislative effort would be more appropriate and productive.

As section 473 is now interpreted, the failure to timely respond to requests for admissions is just as final as the failure to file the original action within the limitations period;  in neither case is the attorney entitled to a warning from the opposition.   Absent a fire, earthquake, disabling illness or other cause which clearly prevents an adequate office reminder system from working, attempts to explain away mere oversight are seldom persuasive.

It is not unusual for the bench to be called upon to enforce rules of practice without regard to the effect on the parties.   To this burden, in this situation we provide the judge only the nondescript guideline of “mistake, inadvertence, surprise or excusable neglect.”   Who has not asked why only the word “neglect” is prefaced with “excusable”?

Some clarification has been offered in this advice:  “The word ‘excusable’ means just that:  inexcusable neglect prevents relief.”  (Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 895, 187 Cal.Rptr. 592, 654 P.2d 775.)   However, we lack a common understanding of what is excusable.   To excuse is to make allowance for a shortcoming, to overlook or condone.   I fear the dissent suggestion of admonishing judges to apply disparate standards of excuse to their law and motion proceedings.   It may be a fact that such differences already exist;  adding another merely risks more disparate consideration among trial judges and less certainty in appellate review.

We affirm a trial judge's exercise of discretion in finding mere forgetfulness to be inexcusable.   Based upon our standard of review, I agree we must do so.   However, it seems likely that the calendar judge who hears similar excuses in the future will be tempted to excuse more, rather than fewer such oversights, the consequences often being so severe.  (See Robinson v. Varela (1977) 67 Cal.App.3d 611, 136 Cal.Rptr. 783 for possible judicial reactions to counsel's “quiet speed” in moving to take advantage of the opposition's neglect.)   Also, in the future the admirable candor of some attorneys to confess oversight may be less forthcoming in view of the effect on the case.   An appropriate legislative solution may be to require one written reminder that responses are overdue, and a limited additional time to file responses, prior to a strict application of section 473.   The only court appearance would be when, and if, the persistently neglectful party seeks to obtain section 473 relief, at which time proof of the remainder could be offered in opposition to the relief.

I respectfully dissent.

We have reviewed several documents setting forth the legislative history of Assembly Bill No. 1865, which became chapter 265 of the 1977–1978 Regular Session of the Legislature.1  The legislative history establishes that it was a California State Bar sponsored bill without opposition.   A purpose of the legislation was to avoid Milton v. Montgomery Ward & Co. (1973) 33 Cal.App.3d 133, 108 Cal.Rptr. 726, which was thought to have emasculated section 2033.

Another feature of the 1978 amendment was to place requests for admissions on the “fast track.”   If the request has the appropriate magic language and the party served fails to timely respond, once the requesting party serves notice in writing by certified or registered mail, return receipt requested, notifying the party so served that the truth of the facts are deemed admitted, the defaulting party must serve and file his Code of Civil Procedure 2 section 473 motion within 30 days.   The 30-day limitation on the time to move for relief from default for failure to respond to requests for admissions was enacted in apparent response to Kaiser Steel Corp. v. Westinghouse Elec. Corp. (1976) 55 Cal.App.3d 737, 744–745, 127 Cal.Rptr. 838, which stated “the six-month limitation for exercise of judicial discretion to relieve from default pursuant to Code of Civil Procedure section 473 is inapplicable to action relieving from the consequences of a defective denial to a request for admissions.”

Contrary to an implication in Billings v. Edwards (1981) 120 Cal.App.3d 238, 174 Cal.Rptr. 722 that the merits of this bill justified its enactment as an emergency measure, it was so enacted for reasons not germane here.3

It appears that neither the State Bar nor the Legislature focused on a fundamental problem—that section 473 is subject to a strict or liberal interpretation, depending upon the context in which it is raised.

Similarly, the majority cites section 473 cases indiscriminately, without recognizing that “excusable neglect” has been construed differently dependent upon the type of problem presented.   The trial court's order denying plaintiffs' motion to set aside the default was made without any indication of a recognition of the problem of disparate interpretations of section 473.   The case authorities cited to that court by the attorney for Stanislaus County related solely to neglectful failure to answer service of process.   The cases were Luz v. Lopes (1960) 55 Cal.2d 54, 62, 10 Cal.Rptr. 161, 358 P.2d 289;  Price v. Hibbs (1964) 225 Cal.App.2d 209, 217 and Transit Ads, Inc. v. Tanner Motor Livery, Ltd. (1969) 270 Cal.App.2d 275, 282, 75 Cal.Rptr. 848.   Price v. Hibbs, supra, is also relied upon by the majority.

There is a definitive line of cases construing section 473 in reference to petitions for an order relieving a plaintiff from the effect of the late filing of a claim under the California Tort Claims Act.  (Gov.Code, § 911.4.)   In such cases, section 473 is given a liberal interpretation.   See the cases cited in Kaslavage v. West Kern County Water Dist. (1978) 84 Cal.App.3d 529, 148 Cal.Rptr. 729.4  The cases cited there establish that a case should be disposed of on the merits, that orders denying relief are subject to closer appellate scrutiny than those granting relief, and that absence of prejudice to the public entity should be considered.

While the declarations of appellants' attorney—Canelo—are skimpy, they nevertheless are well within some of the cases summarized in Kaslavage v. West Kern County Water Dist., supra, 84 Cal.App.3d 529, 148 Cal.Rptr. 729.   See especially Nilsson v. City of Los Angeles (1967) 249 Cal.App.2d 976, 58 Cal.Rptr. 20 and Flores v. Board of Supervisors (1970) 13 Cal.App.3d 480, 91 Cal.Rptr. 717.

The declaration, as supplemented, establishes that the Canelo firm lost two attorneys “earlier this summer” (the declaration was executed August 19).   The record in this case contains a letterhead which indicates that the firm had seven attorneys.   The Canelo firm is located in Merced.   The trial of this action was proceeding in Modesto, approximately 38 miles away.   Merced and Stanislaus Counties are small and contiguous, and it can be expected that the court knew that the Canelo firm was not large.5  A loss of two attorneys from such a firm is an event of significance.   Although some matters can be continued, others cannot, and must be covered.   Files must be reviewed.   Nervous clients placated.   Confusion is inevitable;  chaos is likely.   It is understandable that the request for admissions became misplaced.

It is noteworthy that Kaslavage and the cases cited therein are untouched by Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 187 Cal.Rptr. 592, 654 P.2d 775, a case relied upon by the majority.   The cases so roundly criticized there involved a dismissal under the two-year rule of section 583 (Daley v. County of Butte (1964) 227 Cal.App.2d 380, 38 Cal.Rptr. 693), a complete failure to appear for trial after receiving two notices of trial, (Buckert v. Briggs (1971) 15 Cal.App.3d 296, 93 Cal.Rptr. 61), and failure to respond to service of summons (Orange Empire Nat. Bank v. Kirk (1968) 259 Cal.App.2d 347, 66 Cal.Rptr. 240).

Since it is an accepted principle that in adopting legislation the Legislature is presumed to have had knowledge of existing judicial decisions and to have amended statutes in the light of them (Estate of McDill (1975) 14 Cal.3d 831, 839, 122 Cal.Rptr. 754, 537 P.2d 874), the cases summarized in Kaslavage are relevant to the interpretation to be given “excusable neglect.”  (Also, since Carroll was handed down four years after the enactment of the amendment, the overruled cases of Daley v. County of Butte, supra, 227 Cal.App.2d 380, 38 Cal.Rptr. 693, Buckert v. Briggs, supra, 15 Cal.App.3d 296, 93 Cal.Rptr. 61, and Orange Empire Nat. Bank v. Kirk, supra, 259 Cal.App.2d 347, 66 Cal.Rptr. 240 (and cases like them) were still law.   To fail to interpret the words “excusable neglect” in reference to them may have an ex post facto effect.)

If I am correct in my premise that the words “excusable neglect,” as used in section 473 receive a strict or liberal interpretation depending upon the context, which interpretation should be applied to discovery cases?   And what is the effect of the trial court's failure to state which test it was applying?

I can point to no well established body of precedent in discovery matters.   None was cited by counsel, and independent research has failed to locate a case in point.   We are thus thrust into that morass of law known as statutory interpretation.   It would be an idle act to inquire what the Legislature would have done had it been confronted with the disparate interpretations given section 473.   As stated by Professor Walker Gibson in Literary Minds and Judicial Style (1961) 36 N.Y.U.L.Rev. 915, 920–921:

“The concept of ‘intention’ has proved to be awkward for both literary and legal minds, and for similar reasons.   What did the legislature really mean?   What did Shakespeare really mean?   One lacks the evidence for answering either of these questions very satisfactorily, and the mere asking seems to be an invitation to irrelevance.   In the case of the legislature's intention, the difficulty is that Time has gone barreling on, long after the legislature has spoken, and new situations have arisen about which the legislature clearly never had any intention at all.   The question then becomes rephrased, into something like, ‘What would the legislature have intended if the legislature had known what was going to happen?’   The difficulties with this line of conjecture, both theoretical and practical, are immense․  ‘It is also impossible,’ says Hand, ‘to fabricate how the “Framers” would have answered the problems that arise in a modern society had they been reared in the civilization that has produced those problems.   We should indeed have to be sorcerers to conjure up how they would have responded.’  (Hand, The Bill of Rights 34–35)”

Put another way and based upon an observation of a modern day Legislature, it would not be productive to speculate what the Legislature would have done if it had been confronted with the problem of conflicting judicial interpretations of the words “excusable neglect.”   In the event the issue had been raised, legislative mailbags may have contained constituent support for one result or another.   Lobbyists may have beseeched the decision makers.   Trade-offs between legislators might have been accomplished.

In connection with its duty to pass laws which afford access to our courts and thereby to justice, the Legislature has enacted discovery laws.   If, as I have proposed, by its reference to the concept of “excusable neglect” the Legislature has adopted an inexact test, it is our function to fashion a rule which accomplishes the goal of expediting discovery and at the same time respecting litigants' rights to rational and fair procedural law.   Only in this way do we facilitate factfinding and issue determination toward the goal of justice.   As part of our effort, we should review what the Legislature has done with the remainder of the law of discovery.   If we find rules which are not punitive but recognize the pressures of a busy law practice, such a recognition can lead us to a determination that comports with the realities of law practice and the need for prompt discovery.6

We turn, then, to an investigation of sanctions in discovery matters.   An examination of the statutory scheme of sanctions imposed for failure to comply to discovery requests argues cogently for a liberal interpretation of the term “excusable neglect” as set forth in section 473 and incorporated in section 2033, subdivision (a).

If one refuses to answer a question during a deposition, fails to answer an interrogatory or to respond to a subpena duces tecum, a motion must be made for an order compelling compliance.  (§ 2034, subd. (a).)  Only after a court order has been obtained and disobeyed may the court impose drastic remedies, such as dismissing an action.  (§ 2034, subd. (b)(2).)

If a party does more than fail to provide an appropriate answer, but fails to serve any answer, the more drastic remedy in section 2034, subdivision (d) is available.   It provides that the court may on notice strike all or any part of any pleading of the defaulting party, dismiss the action or enter a judgment by default, or lesser penalties as the court may deem just.   Before these drastic penalties may be imposed, however, the court must make a finding that the default is willful.   Practice under section 2034, subdivision (d) is summarized in 1 Hogan, Modern California Discovery (3d ed. 1981) section 5.16, page 308:

“The purpose of CCP § 2034(d) is to secure compliance with the discovery rules, not to avenge disregard of them.   Where the mere filing of a motion for its very harsh sanctions has had the in terrorem effect of producing answers, albeit tardy ones, to the outstanding set of interrogatories, it is very likely to be deemed an abuse of discretion for the trial court nonetheless to dismiss a complaint, or to strike an answer and enter a default.”  (Fn. omitted.)

The nonpunitive attitude accorded discovery matters is exemplified in Fred Howland Co. v. Superior Court (1966) 244 Cal.App.2d 605, 53 Cal.Rptr. 341.   The trial court had granted plaintiff's motion to strike defendant's answer and thereafter entered its default under section 2034, subdivision (d) because the defendant had failed to answer certain interrogatories.   Although tardy, defendant's attorney had some justification for the delay.   The appellate panel issued a writ of mandate directing the trial court to set aside the default of the petitioner and the order to strike the answer.   In doing so, the court stated at page 610, 53 Cal.Rptr. 341:

“In Caryl Richards, Inc. v. Superior Court, 188 Cal.App.2d 300 [10 Cal.Rptr. 377] ․, where the appellate court reinstated an answer stricken under section 2034, the court said (at pp. 303, 304 [10 Cal.Rptr. 377] ):  ‘One of the principal purposes of the Discovery Act (Code Civ.Proc., §§ 2016–2035) is to enable a party to obtain evidence in the control of his adversary in order to further the efficient, economical disposition of cases according to right and justice on the merits.  (41 Mich.L.Rev. 205;  50 Yale Law Journal 711;  Pettie v. Superior Court, 178 Cal.App.2d 680, 689 [3 Cal.Rptr. 267] ․)  Its purpose is not “to provide a weapon for punishment, forfeiture and the avoidance of a trial on the merits.”  (Crummer v. Beeler, 185 Cal.App.2d 851, 858 [8 Cal.Rptr. 698] ․;  Mitchell v. Johnson, 274 F.2d 394.)’ ”

If one disregards a request to inspect documents, objects or premises under his control, the only sanction is the mild one of paying the expenses incurred by the party submitting the request in obtaining a court order directing that inspection be permitted.  (§ 2034, subd. (a).)  Only after the requesting party has obtained such an order and the noncomplying party has for a second time refused the discovery request may the sanction of contempt be imposed.   (§ 2034, subd. (b).)

The majority opinion makes the handling of requests for admissions asymmetrical with all other discovery matters.   It alone exacts vengeance for first-time failure to comply with discovery rules.   The opinion is bound to send shock waves through the trial bar.   It is dependent upon a strict interpretation of “excusable neglect” in section 473 as applied to section 2033.   In view of the legislative scheme for imposing less stringent sanctions for failure to comply with other discovery demands, it goes too far.

The legislative purpose of abrogating the ruling in Milton v. Montgomery Ward & Co., supra, 33 Cal.App.3d 133, 108 Cal.Rptr. 726 and Kaiser Steel Corp. v. Westinghouse Elec. Corp., supra, 55 Cal.App.3d 737, 127 Cal.Rptr. 838 is accomplished by a liberal interpretation of the words “excusable neglect.”   Requests for admissions would remain on the “fast track” since the motion for relief under section 473 must be filed within 30 days of receipt of the notice that by failure to respond there has been an admission.   There would still be an early resolution of issues not really in dispute and lawyers would be working with a body of discovery law that was consistent in the application of sanctions.

The case at bench involves discovery practice.   So does Carroll v. Abbott Laboratories, Inc., supra, 32 Cal.3d 892, 187 Cal.Rptr. 592, 654 P.2d 775.   The rule I propose is not inconsistent with Carroll.   Footnote 5 of Carroll (at p. 897, 187 Cal.Rptr. 592, 654 P.2d 775) recognizes that it may be sound discovery law to consider whether a dismissal is inappropriately harsh.   That law was not applied in Carroll because the procedural posture was that the case was up before the Supreme Court to review a ruling made upon a motion under section 473, which was held to be no substitute for an appeal.   The difference between Carroll and the instant case is this:  the Legislature has incorporated section 473 into section 2033.   Motions under section 473 are a part of the procedure to be used in requests for admissions.   It is the “appeal”—the statutory procedure—that follows the service of the notice that matters have been deemed admitted.  Section 473, as used in section 2033, then, should be read as incorporating that portion of discovery law which considers the harshness of a penalty imposed for failure to give a timely response to a discovery request.

Also, in Carroll, two judicial warnings were given before the guillotine fell.   The nonfeasance of Canelo in the instant proceeding does not approach the derelictions of the plaintiff's attorney in Carroll.

Seven days after Canelo had been served with the notice that facts were deemed admitted, he filed this motion to set aside the default.   It was accomplished with a response to the request for admissions.   There is nothing before us to indicate that the public entities were prejudiced by the tardy response.   Indeed, discovery had not yet begun.   Absence of prejudice is a weighty consideration when determining the propriety of sanctions in discovery matters.  (Morgan v. Ransom (1979) 95 Cal.App.3d 664, 669, 157 Cal.Rptr. 212.)

The plaintiff, Robert Elston, emerged from the accident a paraplegic.   As a result of his attorney's failure to timely answer an interrogatory of one of four public entity defendants, all are off the hook.   The penalty simply does not fit the crime.

The question remains as to disposition.   A motion for section 473 relief is addressed to the sound discretion of the trial court.  (Carroll v. Abbott Laboratories, Inc., supra, 32 Cal.3d at p. 897, 187 Cal.Rptr. 592, 654 P.2d 775.)   The disparate interpretation to be given the words “excusable neglect” has not been articulated before in any case which I have been able to find.   Therefore, rather than a straight reversal, it would be more appropriate to remand the matter to the trial court for decision in accordance with a liberal interpretation of section 473.

FOOTNOTES

1.   Section 2033, subdivision (a), of the Code of Civil Procedure provides in relevant part that “Each of the matters of which an admission is requested shall be deemed admitted, ․ unless, within the period designated in the request, not less than 30 days after service thereof ․” the party upon whom they are served answers the request.The statute requires “that the original request [must contain] substantially the following words at the end thereof:  ‘If you fail to comply with the provisions of Section 2033 of the Code of Civil Procedure with respect to this request for admissions, each of the matters of which an admission is requested will be deemed admitted’, ․”The section further provides:“Upon failure of a party served with requests for admissions pursuant to this section either to answer or to file objections within the period as designated in the request or as extended by the court, the party making the request may serve upon the other party a notice in writing by certified or registered mail, return receipt requested, notifying the party so served that the genuineness of the documents or the truth of the facts has been deemed admitted.   Once the notice is served, the party upon whom the notice is served shall not have the right to apply for relief under the provisions of Section 473 unless a motion requesting relief is served and filed within 30 days after service of the notice.”

2.   Under Carroll, the only time an attorney's neglect will not be imputed to his client is where the attorney is so neglectful as to have “de facto substituted himself out of the case.”  (32 Cal.3d 892, 900, 187 Cal.Rptr. 592, 654 P.2d 775.)

3.   In his dissent Justice Andreen advocates disparate interpretations of Code of Civil Procedure section 473 to qualify for relief under that section, depending upon the context in which the section is invoked.   He advocates a more liberal interpretation of section 473 in discovery matters, while admitting he “․ can point to no well established body of precedent in discovery matters.”   Indeed, the most recent expression of the Supreme Court in Carroll v. Abbott Laboratories, Inc., supra, 32 Cal.3d 892, 187 Cal.Rptr. 592, 654 P.2d 775, is to the contrary.   That was a discovery case in which the Supreme Court reversed the trial court's order granting relief under section 473.   Moreover, the court relied upon section 473 cases in a wide variety of contexts, thus impliedly disagreeing with the dissent's disparate analysis.The dissent also relies upon a perceived liberality in the application of section 473 in claim law cases.   At least three cases, one being from this court, did not follow such a supposed liberal approach (see City of Fresno v. Superior Court (1980) 104 Cal.App.3d 25, 163 Cal.Rptr. 807;  El Dorado Irrigation Dist. v. Superior Court (1979) 98 Cal.App.3d 57, 159 Cal.Rptr. 267;  Shank v. County of Los Angeles (1983) 139 Cal.App.3d 152, 156–157, 188 Cal.Rptr. 644).

1.   After complying with Evidence Code section 455, subdivision (b), we have taken judicial notice of the Legislative Counsel's letter to the Governor dated June 19, 1978, in reference to Assembly Bill No. 1865;  a letter of Assemblyman Charles R. Imbrecht dated June 19, 1978, and addressed to the Governor, with the attached digest and with its accompanying letter from the State Bar of California;  and the bill digest before the Assembly Committee on Judiciary on Senate Bill No. 1366.

FN2. All statutory references are to the Code of Civil Procedure unless otherwise indicated..  FN2. All statutory references are to the Code of Civil Procedure unless otherwise indicated.

3.   As indicated in the bill digest of the Assembly Committee on Judiciary to Senate Bill No. 1366, the reason that amendment to section 2033 was enacted as an urgency statute was to alleviate the effect of earlier discovery legislation enacted as Statutes 1977, chapter 500, section 1, pages 1627–1631.   Chapter 500 was “replete with ambiguities, uncertainties, and potential problems ․”  (Starr, New Law Relating to Interrogatories and Requests for Admissions, Los Angeles Daily Journal, Report, Legislation Digest 1977 (Dec. 23, 1977) No. 77–17, p. 30, col. 2.)   Recognizing this, the Legislature passed Senate Bill No. 1366 (Stats.1978, ch. 12, § 3, pp. 70–71) as “an urgency measure which is intended to alleviate as quickly as possible the problems caused in the implementation of chapter 500 of the Statutes of 1977 (SB 618—Song).”  (Letter from Sen. Alfred H. Song, bill author, to Gov. Edmund G. Brown, Jr., Feb. 17, 1978.)   The implication in Billings v. Edwards, supra, 120 Cal.App.3d 238, 244, 174 Cal.Rptr. 722, as cited by the majority, that the reason for emergency legislation was to “forcefully expedite a conclusion to this specific form of pretrial discovery” is wrong.  (See Comment, The Use of Extrinsic Aids in Determining Legislative Intent in California:  The Need for Standardized Criteria (1980) 12 Pacific L.J. 189, 202–212.)

4.   In footnote 3, the majority opinion cites three cases at variance with Kaslavage and the line of cases it relied upon.   This misses the point.   The Legislature is deemed to have knowledge of existing judicial decisions.   All three cases were decided after the work of the 1978 Legislature.   Even if one could find similar cases predating their work, the central fact remains that at the time the amendment to section 2033 was enacted, there existed disparate interpretations of section 473.

5.   Coconino Pulp and Paper Company v. Marvin (1957) 83 Ariz. 117, 317 P.2d 550, 551.

6.   The rule that a statute should be construed with reference to the statutory system of which it is a part is well established.  (People ex rel. Younger v. Superior Court (1976) 16 Cal.3d 30, 40, 127 Cal.Rptr. 122, 544 P.2d 1322;  Clean Air Constituency v. California State Air Resources Bd. (1974) 801, 814.)

GEO. A. BROWN, Presiding Justice.

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