Condensed from California Pretrial Practice.
By Donald G. Rez and Robert F. Kane
Requests for Admissions (“RFAs”) permit any party to request any other party to admit: (1) the truth of specified matters of fact, opinion relating to fact, or application of law to fact; or (2) the genuineness of specified documents. [CCP §2033.010.]
RFAs are a powerful trial-preparation tool. They can:
• Narrow and define the issues in the litigation.
• Determine which issues are in dispute.
• Eliminate baseless claims.
• Reduce the number of facts that must be proved at trial.
Binding Nature of RFA Admissions
An RFA admission is “conclusively established” against the party making the admission, unless the court has permitted withdrawal or amendment of the admission under CCP §2033.300. [CCP §2033.410; CACI 210 (“If the other party admits those matters, you must accept them as true. No further evidence is required to prove them.”).]
Admissions obtained through RFAs are more durable than admissions obtained through other discovery methods. At trial, an admission obtained by deposition or interrogatory can be interpreted, minimized, or contradicted by any witness—even the party who made the admission.
Consequences of Failing to Respond on Time
If respondent does not answer or object to RFAs by the response deadline, all objections are waived. The propounding party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests is deemed admitted and for sanctions. Such a “deemed admitted” order is mandatory unless a proper response is made before the hearing; sanctions for failing to timely respond are also mandatory. [CCP §§2033.280.]
10 Strategies for Using RFAs
- Establish Uncontested Facts
A basic role of RFAs is to establish uncontested facts. RFAs are designed not so much to discover the facts and expedite trial preparation as to render it unnecessary to try an otherwise triable issue of fact or law. [Hansen v. Superior Court, 149 CA3d 823, 827, 197 CR 175 (1983).] This role is important because, in most cases, the truly contested facts are quite few and the uncontested facts are many. And though uncontested, such facts must be proven unless established as admitted by an RFA.
TIP: Use RFAs as an undisputed-fact checklist, thereby avoiding proof problems at trial. Through inadvertence at trial, you may fail to make the required proof of all the undisputed facts supporting your case. Thus, even if it appears that certain uncontested facts would be easy to prove at trial, consider asking respondent to admit the facts in an RFA.
- Establish Hard to Prove Matters
Typically, the most fruitful use of RFAs is to nail down facts you could easily establish without admissions, if necessary. But RFAs can also establish matters that would be quite difficult to prove without an admission (e.g., respondent’s state of mind). Do not automatically limit your RFAs to the easy facts. Respondent may surprise you by admitting a matter difficult to prove—but you must ask for the admission to get it.
- Establish Matters in Controversy
Requests that probe a “matter in controversy” are proper. [See Rosales v. Thermex-Thermatron, Inc., 67 CA4th 187, 199, 78 CR2d 861 (1998).] Thus, RFAs may probe matters respondent is fully expected to deny. There are three reasons to invite respondent’s denial:
• To set the stage for post-trial cost-of-proof sanctions. [CCP §2033.420(a).] Such an award can be significant. [Rosales v. Thermex-Thermatron, Inc., 67 CA4th 187, 78 CR2d 861 (1998) ($123,002.85 in fees and costs for failure to admit RFAs directly probing successor corporation liability).]
• Respondent may surprise you by admitting instead of denying the fact. Or the fact may be established as “deemed admitted” by a motion after a failure to deny.
• You may find that your opponent does not know the answer to a crucial factual contention. [See Cohen v. Superior Court, 63 CA3d 184, 187, 133 CR 575 (1976) (not true that a denial for lack of information is valueless).]
- Establish Foundational Facts
In addition to the substantive facts needed to prove your case, consider RFAs to establish the foundational facts you will need to introduce the substantive facts in evidence. [See CCP §2017.010 (discovery may be obtained of the existence, description, nature, custody, condition, and location of any document, tangible thing, or land or other property).]
Request No. 31
The photograph attached as Exhibit F accurately and fairly depicts respondent’s facial injuries one month after the accident.
- Eliminate Baseless Contentions
The California rules of pleading are liberal and the demurrer procedure for pleadings is cumbersome. Thus it may be difficult to eliminate baseless claims or defenses through direct attack on the pleadings. Form complaints and general denials simply do not define the issues.
RFAs provide a more expedient approach than demurrer practice: If you have reason to believe respondent’s claim or defense is baseless, ask for an admission that undercuts the offending contention. [See Wilcox v. Birtwhistle, 21 C4th 973, 90 CR2d 260 (1999) (RFAs apparently properly asked plaintiff to admit he was not injured by defendant and defendant was not negligent).] Respondent may choose to admit the request, rather than face possible post-trial cost-of-proof sanctions.
Such requests are proper, even if they probe “matters in controversy” for trial or ultimate facts.
- Marshal Prima Facie Evidence
By means of ultimate-fact requests, RFAs can ask respondent to admit facts that establish essential elements of the propounding party’s claim or defense. If admitted, an ultimate-fact request can dramatically reduce the scope of trial. For example, if respondent admits liability, damages may be the only disputed issue remaining.
- Support Summary Judgment
With ultimate-fact requests, you can set the stage for summary judgment. [D’Amico v. Board of Medical Examiners, 11 C3d 1, 112 CR 786 (1974) (summary judgment is particularly appropriate when based on admissions relating to existence of triable issues of fact).]
EXAMPLE (breach of contract):
Request No. 1
On [date], Defendant homeowner contracted with Plaintiff building contractor to remodel Defendant’s house.
Request No. 2
Plaintiff timely performed all work required by the Contract.
Request No. 3
The Contract provided that Defendant would pay Plaintiff $80,000 to perform the work required by the Contract.
Request No. 4
On [date], Plaintiff demanded payment from Defendant in the sum of $80,000.
Request No. 5
Defendant has not paid Plaintiff the $80,000 Plaintiff demanded, or any other sum.
Request No. 6
Defendant owes Plaintiff the principal sum of $80,000 for the work Plaintiff performed for Defendant under the Contract.
- Establish Evidentiary Foundation for Documents
To be admissible, a document must be authentic (“genuine”) and, often, must fit within a hearsay exception. [Evid C §§1200 ff (hearsay), 1400 ff (authentication).] Thus, ask the responding party to admit that the document at issue:
• Is authentic. [Evid C §1414(a) (a writing may be authenticated by evidence that the party against whom it is offered has at any time admitted its authenticity).]
• Meets the requirements for an exception to the hearsay rule, if it is offered for the truth of the matters stated in the document. [Evid C §1200.]
TIP: If your RFA refers to a document, you must attach a copy of the document to the request. You must also make available the original of the document for inspection on demand of the respondent. [CCP §2033.060(g).] A statement in a cover letter that the original is available may be helpful and diffuse an unnecessary, time-consuming objection.
TIP: Simply asking the opposing party to admit that a document falls within a hearsay exception may be an impermissible inquiry into a pure matter of law. Better practice is to ask your opponent to admit that the document satisfies each requirement of the applicable exception, as specified in your RFA. Admissions are exceptions to the hearsay rule under California law. [Evid C §1221.]
Request No. 4
The document attached as Exhibit 1 is a true and correct copy of Plaintiff’s invoice of [date.]
Request No. 12
The Note attached as Exhibit 3 bears [respondent’s] signature.
TIP: In lieu of the original document, the copy attached to the RFA should be admissible. [Evid C §1521.] Thus in most cases, if respondent admits the copy is genuine, you may use either the copy or the original at trial (assuming the original is otherwise admissible).
- Produce Party Admissions From Prior Discovery
Use RFAs to obtain party admissions of information you have already obtained through other means, such as interrogatories or depositions. For example, if an opposition witness makes a statement in a deposition favorable to your side, serve the opposition with a request to admit that the witness’s statement is true.
Respondent should hesitate before denying a request to admit the truth of a matter exposed through another discovery method; if you prove the matter at trial, respondent may be liable for cost-of-proof sanctions.
TIP: Your opponent may make a damaging statement in a deposition or in response to interrogatories. However, the statement’s language may be equivocal, ambiguous, or cluttered with objections. In preparing an RFA based on this statement, consider purging the ambiguity and equivocation. Making the statement clear and simple will maximize its impact at trial. On the other hand, the more you change the language, the less likely your opponent will admit the request.
If the opposition complies with the request, the admission is better than the deposition statement alone because:
• The admission is binding on the opposition at trial.
• The admission states the matter in the clear, unequivocal terms you provided.
- Use with Interrogatories
If the responding party fails to admit a particular RFA, a concurrently served interrogatory can ask why or obtain other follow up information. Note however that CCP §2033.060(h) expressly forbids combining RFAs with any other method of discovery in a single document.
Request No. 1
Defendant was obligated to perform under the terms of the Contract attached as Exhibit A.
Separately Served Interrogatory No. 1
If Defendant does not admit RFA No. 1, that Defendant was obligated to perform under the terms of the contract attached as Exhibit “A” to the RFAs served herewith, state all facts on which Defendant bases that failure to admit.
Separately Served Interrogatory No. 2
If Defendant has not admitted Request for Admission No. 1, identify each document on which Defendant relies to support the failure to admit.
About the Authors
Robert F. Kane practices civil and criminal trial and appellate litigation with his firm, Rockwell & Kane, located in San Francisco, California. Mr. Kane is also an Adjunct Professor of Law at the University of California, Hastings College of Law where he was named “Teacher of the Year” in 2003. In addition, Mr. Kane serves as Judge Pro Tem for the San Francisco Superior Court and is a member of various Superior Court Arbitration and Mediation Panels. Mr. Kane speaks frequently at seminars, has published numerous articles, and is active in pro bono work.
Donald G. Rez is a principal and founder of the San Diego based law firm of Sullivan, Hill, Lewin, Rez and Engel. He has handled all types of commercial lawsuits including: trade regulation and antitrust matters; breach of contract; franchisor/franchisee matters; lender liability cases; malpractice; intellectual property and RICO cases. He has been involved in complex and sophisticated multi-district litigation and his antitrust experience has involved claims of virtually every kind. Mr. Rez has published numerous articles, served as an adjunct professor of law at California Western School of Law, and been on the faculty at NITA.