STOVALL v. SPECIALTY DEVELOPMENT CORPORATION

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Court of Appeal, Second District, Division 1, California.

Walter L. STOVALL, Jr., Plaintiff and Respondent, v. SPECIALTY DEVELOPMENT CORPORATION et al., Defendants and Appellants.

Civ. B005556.

Decided: February 25, 1985

Barbara L. Leonard, Long Beach, for defendants and appellants. Sheldon S. Goodman and Douglas C. Sohn, Santa Ana, for plaintiff and respondent.

Defendants appeal from the judgment entered following the granting of plaintiff's motion for summary judgment.

Plaintiff's complaint is for breach of contract, labor furnished and material received at defendants' request, and forfeiture of a bond.

Plaintiff served a request for admissions on the named defendants, Specialty Development Corporation, Specialty Restaurant Corporation, J. Gary Page, David C. Tallichet, and Pat Pemberton, on July 14, 1982.   The warning required by Code of Civil Procedure section 2033 was placed at the very end of the document rather than at the end of the introductory or request portion.

On August 13, 1982, the response to the request was served on plaintiff.   The response was verified by Attorney Barbara Leonard on behalf of the five named defendants and on behalf of Does 1 through 10 as being true to the best of her knowledge.  (On February 2, 1982, defendant Wausau Insurance Companies had been served as Doe 6.)   No motion to compel a further response was filed.

On June 28, 1983, plaintiff served the named defendants by registered mail, return receipt requested, with a notice that the matters as to which admission was requested had been deemed admitted “by reason of [defendants'] failure to serve a timely, verified denial thereof, or a timely, verified statement detailing the reasons for any inability on [defendants'] part to admit the Requests for Admission, or [defendants'] objections thereto.”   Defendants had not previously moved for an opportunity to amend the verification and did not file such a motion after receipt of the notice that matters had been deemed admitted.

On August 16, 1983, plaintiff filed a motion for summary judgment against the named defendants.   The motion was based entirely on plaintiff's contention that the matters as to which admission was requested had been deemed admitted because the verification was defective and hence the defendants' statement was tantamount to no response.  (See Zorro Inv. Co. v. Great Pacific Securities Corp. (1977) 69 Cal.App.3d 907, 914, 138 Cal.Rptr. 410.)   Plaintiff contended, first, that the verification was defective since the response was stated to be true to the best of the declarant's knowledge and, second, that the verification should have been signed by the named defendants, not by their attorney.

In opposition to the motion defendants introduced a declaration of Mr. Tallichet, president of defendants Specialty Restaurants Corporation and Specialty Development Corporation, which stated that Attorney Leonard was an employee of those corporations and was an agent authorized to verify their response to the request for admissions.   He further stated that he was “unavailable” to execute the verification when it was signed.   He did not state whether Attorney Leonard was an officer of either of those corporations.   Attorney Leonard filed a declaration stating that she had signed the verification on behalf of J. Gary Page and Pat Pemberton because they reside in Apple Valley, California and “are extremely difficult to contact.”   Defendants contended that the verification was proper, but argued that, if it was not, the court should exercise its inherent equity power to grant defendants relief from the effect of having served an unsworn response.   Defendants did not introduce any evidence of extrinsic fraud or mistake (see Billings v. Edwards (1981) 120 Cal.App.3d 238, 245, 174 Cal.Rptr. 722), and no motion for relief was filed.

Although the request for admissions and motion for summary judgment were served solely on the named defendants, summary judgment was entered against defendant Wausau Insurance Companies as well as the named defendants.

The court granted summary judgment based on its determination that all matters as to which admission was requested had been deemed admitted.

Defendants contend that the response to the request for admissions was properly verified.   They also contend that, if it was not, the court abused its discretion by denying their request to amend the response to provide a proper verification.   They further contend that the court erred in granting the motion for summary judgment because the matters listed in the request for admissions should not have been deemed admitted.

 Since the motion for summary judgment was not directed against Wausau Insurance Companies, the court erred in granting summary judgment against that defendant.   Reversal of the judgment against Wausau Insurance Companies is thus required.

 The verification was ineffective as to the individual defendants for the reason that it was made by the attorney rather than the parties.   Section 2033 requires the sworn statement to be signed by the responding party.   This is apparent from the statutory language that the matters will be deemed admitted if the request is in the specified form “unless, within the period designated in the request ․ the party to whom the request is directed serves upon the party requesting admission ․ (1) a sworn statement denying specifically the matters of which an admission is requested or setting forth in detail the reasons why the party cannot truthfully admit or deny those matters․”  (Italics added.)  Code of Civil Procedure section 446 does not alter this requirement.  Section 446 permits a pleading to be verified by the attorney when the party is out of the county or unable to verify the document, but specifically provides that “in those cases the pleadings shall not otherwise be considered as an affidavit or declaration establishing the facts therein alleged.”   A central purpose of a sworn statement under section 2033 is to unequivocally establish those matters admitted in the response.

 The verification was also ineffective as to the corporate defendants for the same reason.  Section 446 provides:  “When a corporation is a party, the verification may be made by any officer thereof.”   It was not established, however, in the case at bench that Attorney Leonard was an officer of any of the corporate defendants.   We note that section 446 also provides that a verification by a corporate officer on behalf of the corporation shall be based on information and belief and that such verification also “shall not otherwise be considered as an affidavit or declaration establishing the facts therein alleged.”   That language is superseded in this context by the express requirements of section 2033.   In particular, section 2033, subdivision (a), provides:  “A denial shall fairly meet the substances of the requested admission, and when good faith requires that a party deny only part of a matter of which an admission is requested, or that the party qualify his or her response thereto, the party shall specify so much of it as is true and deny or qualify the remainder.”   Thus, only when good faith requires a corporate officer to so qualify his or her response in its entirety may that response under section 2033 be based on information and belief.

 The trial court did not abuse its discretion in denying the named defendants' request to amend their response to provide a proper verification because the request was untimely under Code of Civil Procedure section 473 and neither extrinsic fraud nor extrinsic mistake was shown.

In Kaiser Steel Corp. v. Westinghouse Elec. Corp. (1976) 55 Cal.App.3d 737, 127 Cal.Rptr. 838, we held that a trial court had discretion under Code of Civil Procedure sections 2033 and 2034 to permit a party to amend an unsworn response to a request for admissions by verifying the response after the time to move for relief under section 473 had elapsed if good cause was shown.  (Kaiser, supra, at p. 744, 127 Cal.Rptr. 838.)   We noted that there was a conflict between section 2033, which on the surface appeared to be self-executing, and section 2034, which provided for a motion that matters be deemed admitted.  (Kaiser, supra, at pp. 743–744, 127 Cal.Rptr. 838.)   Explaining that a motion to deem matters admitted would be superfluous if section 2033 were self-executing (Kaiser, supra, at p. 744, 127 Cal.Rptr. 838), we held that the provision in section 2033 allowing the court to extend time for a response enabled the trial court to relieve a party of the consequences of having served an unsworn response.  (Kaiser, supra, at p. 744, 127 Cal.Rptr. 838.)   We further held that a motion for such relief need not have been made within six months of the date the response was due.   (Ibid.)

 In 1978 the Legislature amended sections 2033 and 2034.   The amendment to section 2034 deleted the provision that the propounding party could move for an order deeming matters admitted.  (Stats.1978, ch. 265, § 2, pp. 550–553.)   The amendment to section 2033 added a requirement that the request contain a warning that failure to comply with the requirements of section 2033 would result in the matters being deemed admitted.  (Stats.1978, ch. 265, § 1, pp. 549–550.)   The amendment was specific both as to the content and location of the warning.   The statute as amended expressly provided that the matters would only be deemed admitted if the warning itself complied with section 2033.   The amendment thus clarified that section 2033 was intended to be self-executing when the propounding party complied with its requirements.   A further amendment to section 2033 was enacted as an urgency measure in 1978.   That amendment provided that, if the propounding party served a document by certified or registered mail, return receipt requested, notifying the party upon whom the request had been served that the truth of the facts had been deemed admitted, the time within which relief could be sought under Code of Civil Procedure section 473 would be reduced to 30 days from service of the notice.  (Stats.1978, ch. 12, § 3, pp. 70–72.)

Since the Kaiser holding about the time period within which a motion for late verification could be made was based on our conclusion that section 2033 was not self-executing, the 1978 amendments abrogated that particular aspect of our holding in Kaiser.  (See Enfantino v. Superior Court (1984) 162 Cal.App.3d 1110, 1112–1113, 208 Cal.Rptr. 829;  Dolin Roofing & Insulation Co. v. Superior Court (1984) 151 Cal.App.3d 886, 889–890, 199 Cal.Rptr. 37;  Billings v. Edwards, supra, 120 Cal.App.3d 238, 243–244, 174 Cal.Rptr. 722.)

 Although there is inherent equitable power to grant relief from the effect of a failure to properly verify a response to a request for admissions (id., at p. 245, 174 Cal.Rptr. 722), equitable relief may not be based simply on an assertion that counsel was ignorant of the law relating to requests for admissions.  (Ibid.)  The sole basis for such relief is a showing of extrinsic fraud or mistake.   Since there was no such showing made in this case, the trial court did not err in refusing to allow defendants an opportunity to amend their response by filing a proper verification.

The matters as to which admission was requested, if deemed admitted, would establish each of the causes of action against the named defendants and would negate all defenses thereto.   It is therefore necessary to determine whether the request for admissions complied with section 2033 so as to cause the matters asserted in the request to be deemed admitted by reason of the named defendants' failure to properly file a sworn statement denying those matters they contend are not true.

 In Hernandez v. Temple (1983) 142 Cal.App.3d 286, 290–291, 190 Cal.Rptr. 853, petition for hearing denied June 29, 1983, we held that it is essential that the warning mentioned in section 2033 be placed at the end of the introductory or request portion of the request for admissions if the matters enumerated in the request are to be deemed admitted as a result of the responding party's failure to comply with that statute.  (Also see Hansen v. Superior Court (1983) 149 Cal.App.3d 823, 828–829, 197 Cal.Rptr. 175;  Billings v. Edwards (1981) 120 Cal.App.3d 238, 246, 174 Cal.Rptr. 722.)   Although we are familiar with the contrary interpretation made in Barnett v. American-Cal Medical Services (1984) 156 Cal.App.3d 260, 264–265, 202 Cal.Rptr. 735, we continue to believe that the Legislature intended that the warning be placed at the end of the introductory portion of the document.

 While the term “original request” is not a model of clarity, it would be unreasonable to construe that term as denoting the original of the request as contrasted with a copy since the placement of the warning must necessarily be the same in each document.   Further, it is unlikely that the Legislature intended that “original request” mean the first request as contrasted with subsequent requests since such a result would poorly serve the legislative purpose of providing clear notice of the extreme importance of a timely and proper response to the request.   Thus, the most reasonable construction of the term “original request” is the original or introductory portion of the request for admissions.

 The term “original request” should not be construed as meaning only the request itself since it is presumed that every word in a statute has meaning.  (Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 514 P.2d 1224;  Clements v. T.R. Bechtel Co. (1954) 43 Cal.2d 227, 233, 273 P.2d 5.)   Although a requirement that the language of warning be placed at the very end of each request for admissions might well be more effective than the present requirement that it be placed at the end of the “original request,” such a determination is a matter for the Legislature, not for the courts.   The Legislature has apparently concluded that placement of the warning at the end of the introductory portion of the request is the most effective means of imparting that crucial notice, and it is not our function to rewrite the statute to provide to the contrary.

Section 2033 does not permit the matters listed in the request to be deemed admitted unless the propounding party fully complies with the statutory requirement regarding the placement of the warning.   Although the statute permits a warning that is “substantially” in the language it recommends (Code Civ.Proc., § 2033, subd. (a)), “the statute's requirement that the warning be placed at the end of the request portion of the document is unqualified.”  (Hernandez v. Temple, supra, 142 Cal.App.3d 286, 290, 190 Cal.Rptr. 853.)   That the statute is explicit in requiring the warning to be communicated in conformity to these requirements before the matters may be deemed admitted is apparent from the following language:  “Each of the matters of which an admission is requested shall be deemed admitted, provided that the original request contained 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’․”   (Code Civ.Proc., § 2033, subd. (a), italics added.)

 Summary judgment is a drastic procedure, and doubts as to the propriety of granting summary judgment are to be resolved against the moving party.  (Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785;  Hernandez v. Temple, supra, 142 Cal.App.3d 286, 289, 190 Cal.Rptr. 853.)  “The law abhors forfeitures and requires strict construction of statutes imposing them.  [Citation.]   Because failure to respond to a request for admissions under Code of Civil Procedure section 2033 will often result in judgment being entered against the party upon whom the request was served, section 2033 must be strictly construed.”   (Id., at p. 290, 190 Cal.Rptr. 853;  accord, Enfantino v. Superior Court, supra, 162 Cal.App.3d 1110, 1113, 208 Cal.Rptr. 829.)

 While Hernandez involved a complete failure to respond to the request for admissions, our holding in that case applies with equal force to the present situation of an inadequately verified response.   For such a response to be treated as tantamount to an admission of the matters enumerated in the request (see Zorro Inv. Co. v. Great Pacific Securities Corp., supra, 69 Cal.App.3d 907, 914, 138 Cal.Rptr. 410 [unsworn statement is tantamount to no response] ), it is essential that the language of warning be at the end of the introductory or request portion of the request for admissions.   Because the warning was not located at the end of the “original request” within the meaning of Code of Civil Procedure section 2033, the trial court erred in concluding that the matters as to which admissions were requested had been deemed admitted.  (Hernandez v. Temple, supra, 142 Cal.App.3d 286, 290–291, 190 Cal.Rptr. 853.)   Because the only evidence introduced in support of the motion for summary judgment was evidence relating to the request for admissions, there are triable issues of fact.

The judgment is reversed.

DALSIMER, Associate Justice.

SWEARINGER, J.,* concurs.L. THAXTON HANSON, Acting P.J., concurs in the judgment.

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