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Is it improper for Defendant's attorney to Request Admissions that are known FALSE, making true answer a Denial, Subject to 17.0

Redwood City, CA |

Background:

1. Pro Per Litigants with Elder Abuse Claim against RCFE for their mother's death
2. Defendants filed Demurrer, which is pending, they also filed Discovery while its pending,
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The Defense attorney is asking for admissions where the correct answer is always a Denial. For example, the complaint alleges Neglect, the RFA asks to Admit that no Neglect occurred. An employee who worked for them, the RFA asks to admit that the employee was not their employee.

I believe this is a gross discovery abuse, because it requires denials, and then follows up with a Form Interrogatory 17.0. I believe that RFA need to be designed so ADMIT is the expect response, because 17.0 ask to define only Denials, not Admissions. Now I am supposed to prove the negative on everything????

Attorney Answers 4

Posted

This is not an abuse of discovery. It is a common practice for a party to pround requests for admission along with form interrogatory 17.1. If you admit a request for admission you do not need to provide a substantive response to 17.1 If the response is a denial or anything other than an unqualified admission, you are required to provide all facts which support your denial, identities of all witnesses having information reagrding such facts, and identification of all documents which support the facts. As a matter of practice, almost every response will be something other than an outright admission, so the responding party will be required to provide the information requested in Interrogaory 17.1 This is a legitmiate discovery tool which is widely utilized in California.

This response is for information purpose only and does not constitute a legal advice. This response does not create an attorney-client relationship.

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Posted

Thanks for the response, as I understand it, requests for admission are for the purpose of removing contentions, to streamline the matter before the court. Because of that clear purpose, the Form Interogratory 17.1 is created to explain why something that is offered as being a reasonable FACT that can be admitted is not being admitted. Here the attorney is crafting the question to require a denial, and worse by demanding I admit something was not the case. Logically speaking the denial of why something is not the case, is an expansive universe of possibilities. Isn't demanding denials via RFA just an expansive "admit you are not beating your wife anymore"

Posted

This is not discovery abuse. The defense obviously believes your case has no merit and has propounded RFA's intended to force you to admit or deny certain facts or legal contentions. If you "deny" the request in its entirety or only partially you must still answer the 17.0 series.

There are significant consequences for denying requests which are later proved to be true. You should at the very least consult with an attorney who specializes in Elder abuse claims.

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Posted

Thank you for you answer, I am going to reply to Mr. Lee below as to some of the details raised. Regarding seeking Elder abuse lawyers, it appears that contingency lawyers in Elder Abuse claims are hot to take the case only to drop it later. One explanation I read explaining why Elder abuse claims are so often dropped after being taken is that there are so many true elder abuse claims that make there way to Attorneys that they can pick and choose only the most perfect of cases. There is an unlimited supply, so only the most perfect cases are retained, and any case with any amount of defect is dropped. At this point my direction is to withstand the Demurrer and then reshop the case out to attorney's. Alternatively I would be open to having a fresh out of school attorney work the litigation. I have 12 causes of action in the complaint, and believe that if any number of causes survive the Demurrer that the case will be viewed as desirable for specialists.

Posted

Attorney Weck is absolutely correct. It is just the opposite of what you think. RFAs are usually phrased to state facts which the propounding party hopes you will admit is true. If not true, then it is your obligation to provide facts, witnesses and documents in response to Form Interrogatory 17.1 setting forth the reasons why the RFA is not true.

Note that there is a statutory method to obtain attorney's fees for tort claims under the Civil Discovery Act, which are "cost of proof" sanctions awardable pursuant to Code of Civil Procedure section 2033.420.

Code of Civil Procedure section 2033.420 provides: “If a party fails to admit the genuineness of any document or the truth of any matter when requested to do so under this section, and if the party requesting that admission thereafter proves the genuineness of that document or the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees. The court shall make this order unless it finds that (1) an objection to the request was sustained or a response to it was waived under subdivision (l), (2) the admission sought was of no substantial importance, (3) the party failing to make the admission had reasonable ground to believe that that party would prevail on the matter, or (4) there was other good reason for the failure to admit.”

The determination of whether a party is entitled to expenses under Code of Civil Procedure section 2033.420 is within the sound discretion of the trial court. The primary purpose of Requests for Admissions (RFAs) is to set at rest triable issues so that they will not have to be tried; they are aimed at expediting trial. The basis for imposing sanctions is directly related to that purpose. Unlike other discovery sanctions, an award of expenses is not a penalty. Instead, it is designed to reimburse reasonable expenses incurred by a party in proving the truth of a requested admission such that trial would have been expedited or shortened if the request had been admitted. (Brooks v. American Broadcasting Co. (1986) 179 Cal.App.3d 500, 509.) The court must make an order imposing cost of proof sanctions unless it determines that at least one of four possible bases for denying costs of proof is present.

Only expenses resulting from the responding party’s failure to admit RFAs are awardable. Therefore, expenses and fees incurred before the RFAs were denied are not awardable as sanctions under Code of Civil Procedure section 2033.420. (Garcia v. Hyster Co. (1994) 28 Cal.App.4th 724, 736.)

Further, the award is limited to expenses incurred in “proving” the matters denied.

Finally, the cost-of-proof sanction is awardable against the client, not against the attorney. (Estate of Manuel (2010) 187 Cal.App.4th 400, 404–405.)

Frank W. Chen is licensed to practice law in the State of California. The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult your own attorney.

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Posted

Thank you for taking your time to respond to my question. You are supporting my contention that this practice is improper under the rules the attorney because is not seeking admissions, they are specifically seeking denials, and crafting all the language to create a denial as the result. "Please admit that X was not the case." So I have to deny that X was not. And then prove a double negative. And worse I am supposed to provide evidence that deny that John was not their employee when they know as certainty that John was their employee. So the propounding party is NOT seeking admissions, they are doing everything possible to generate a denial. And as you display in your response the entire structure is designed to punish denials "award is limited to expenses incurred in “proving” the matters denied. " "Only expenses resulting from the responding party’s failure to admit RFAs are awardable" By crafting the RFA which removes the ability to admit, it games the system to require denials, does not seek to rest triable issues, and are designed to force the exposure of sanctions. It can be summarized as a "demand for mandatory denials" which I believe is abusive re-purposing of the CCP intent

Posted

This is not an abuse of discovery, but a litigation strategy. Requests for Admissions are very important tools for trial, especially, and can result in sanctions (monetary and issues) if answered incorrectly/improperly. Best to have a lawyer draft the responses.

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