Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Monterey County Super. Ct. No. M65066
Bamattre-Manoukian, Acting P.J.
Plaintiff Jon Renee Johnson filed this action for personal injuries resulting from a collision between his motorcycle and an automobile driven by defendant Corey Scott Jamieson and owned by defendant Gene Jamieson. When plaintiff failed to serve a verified response to defendants’ requests for admissions, the court ordered the requests for admissions deemed admitted. The court denied plaintiff’s motion for reconsideration or relief and later granted summary judgment in favor of defendants based on the admissions.
Plaintiff contends on appeal that the requests for admissions should not have been deemed admitted simply because they were not verified, because his unverified responses were in substantial compliance with the discovery statutes. He argues further that the requests for admissions were improper requests because they did not ask for the admission of factual matters, and on that basis should not have been deemed admitted. And finally he contends that the court should have granted his motion for reconsideration or relief under Code of Civil Procedure section 1008 and section 2033, subdivision (m), because he presented new or different facts and because defendants were not prejudiced by his failure to verify his responses to the requests for admissions.
This statute is now numbered 2033.300. At the time of the motion and rulings in this case, the applicable statute governing requests for admissions was former section 2033. That statute was repealed in 2004 and its substance was continued in newly numbered sections 2033.010 through 2033.420. (Stats. 2004, ch. 182, § 23.) Since the parties and the trial court in this case referred to the statute under the former numbering, we will do so also, however noting the new numbers in brackets. All further unspecified statutory references are to the Code of Civil Procedure.
We reject these contentions and affirm the judgment.
BACKGROUND
The accident in this case occurred on May 27, 2002, near the junction of San Juan Road and Carpenteria Road in Monterey County.
Plaintiff filed his complaint for personal injuries on May 16, 2003, and defendants filed their answer on June 3, 2004, denying the allegations and asserting a number of affirmative defenses, including that plaintiff’s own negligence was the cause of any injuries suffered.
On May 12, 2004, defendant served plaintiff with form interrogatories, a demand for the production of documents, and requests for admissions, including the following:
“1. Plaintiff had no liability insurance for the motorcycle he was riding on May 27, 2002, at the moment of the collision on which this lawsuit is based.
“2. Plaintiff cannot recover for any non-economic damages in this lawsuit.
“3. Plaintiff came from behind a moving truck in front of him immediately before the May 27, 2002, collision on which this lawsuit is based.
“4. Plaintiff crossed over the double yellow lines on May 27, 2002, immediately before the collision on which this lawsuit is based.
“5. Plaintiff was negligent on May 27, 2002, in the operation of his motorcycle immediately before the occurrence of the collision on which this lawsuit is based.
“6. Plaintiff’s negligence in the operation of his motorcycle was a substantial factor in causing the May 27, 2002, collision on which this lawsuit is based.
“7. Plaintiff’s negligence in the operation of his motorcycle was the sole cause of the May 27, 2002 collision on which this lawsuit is based.”
On June 7, 2004, plaintiff’s counsel served responses, admitting Nos. 1 and 2, denying No. 4, and objecting to and denying the balance of the requests. The responses were signed by plaintiff’s attorney and were not verified by plaintiff.
On June 16, 2004, defense counsel agreed to extend plaintiff’s time to respond to the interrogatories and request for documents for 30 days. At the same time, defense counsel requested an extension of time in which to move to have the requests for admissions deemed admitted due to plaintiff’s failure to have verified them. Plaintiff’s counsel responded, granting the extension and informing defense counsel “our office has been unable to make contact with our client.” No further response to the discovery requests was received by July 16, 2004, the end of the 30-day extension.
On August 5, 2004, defendants filed their motion to have the requests for admissions deemed admitted, and for monetary sanctions for failure to respond to discovery. Plaintiff submitted no opposition.
The hearing on defendants’ motion took place on September 3, 2004. Plaintiff’s counsel, appearing by telephone, informed the court at that time that he had heard from plaintiff on August 16, 2004, at which time plaintiff had promised to have the responses and verifications by August 20, 2004. No responses were received by that date, and counsel was unable to reach his client thereafter. Counsel informed the court: “He’s been made aware of the repercussions of no response.”
The court granted the motion to have the requests for admissions deemed admitted and imposed sanctions of $238.80, and further granted the motion to compel answers to interrogatories and imposed additional sanctions of $441.30. The court ordered the responses to interrogatories to be submitted, and sanctions to be paid, by September 20, 2004.
On October 20, 2004, plaintiff submitted responses to interrogatories and verifications of the earlier submitted responses to requests for admissions.
The court’s written order deeming the requests for admissions admitted and imposing sanctions was signed and filed November 4, 2004.
On December 3, 2004, plaintiff filed a motion for reconsideration under section 1008 or, in the alternative, a motion for relief under section 2033, subdivision (k) [§ 2033.280]. Counsel for plaintiff submitted a declaration stating that he had received plaintiff’s verifications in his office the afternoon of the hearing on September 3, 2004. He did not explain, however, why he had delayed until October 20, 2004 to submit the verifications to defendants’ attorney. In points and authorities, he argued that his receipt of plaintiff’s verifications later in the afternoon the same day of the hearing constituted “new or different facts” sufficient to justify reconsideration under section 1008. (§ 1008, subd. (a).) In the alternative he argued that section 2033, subdivision (k) [§ 2033.280], provided relief to a plaintiff whose response to the requests for admissions was in “substantial compliance” to the statutory requirements. Plaintiff also argued that several of the requests for admissions were improper, since they asked plaintiff to admit he was legally responsible for the accident, rather than asking him to admit a triable issue of fact that was essentially not controverted.
At a hearing on January 7, 2005, the court denied plaintiff’s motion for reconsideration or relief.
On March 28, 2006, defendants filed a motion for summary judgment, based on the admissions by plaintiff that he was negligent and that his negligence “was the sole cause of the May 27, 2002, collision . . . .” Plaintiff opposed the motion, arguing that the facts deemed admitted were not facts but conclusions of law.
A hearing was held on June 23, 2006, and the court granted defendants’ motion for summary judgment. A written order granting the motion for summary judgment and dismissing the case with prejudice was entered on July 28, 2006.
Plaintiff filed a notice of appeal on September 12, 2006, appealing from the order granting summary judgment, and also from the order deeming requests for admissions admitted and the order denying reconsideration.
ISSUES
Appealability
An order granting summary judgment is not an appealable order. (Levy v. Skywalker Sound (2003) 108 Cal.App.4th 753, 761, fn. 7.) The appeal is properly taken from a judgment entered on the basis of the summary judgment order. (Ibid.) In this case, however, the order granting summary judgment included an order dismissing the complaint with prejudice. Such an order acts as a final judgment and is appealable. (§ 581d; In re Sheila B. (1993) 19 Cal.App.4th 187; Cohen v. Hughes Markets, Inc. (1995) 36 Cal.App.4th 1693.)
Discovery orders are not appealable, but are reviewable on appeal from a final judgment. (Brun v. Bailey (1994) 27 Cal.App.4th 641, 650, disapproved on another point in Plunkett v. Spaulding (1997) 52 Cal.App.4th 114, 133.) An order denying a motion for reconsideration under section 1008 is likewise not appealable. (In re Marriage of Burgard (1999) 72 Cal.App.4th 74, 81.) On appeal from a judgment, the court may review any intermediate rulings affecting the rights of the parties. (§ 906; Abramson v. Juniper Networks, Inc. (2004) 115 Cal.App.4th 638, 648-649.)
The Motion to Have Requests for Admissions Deemed Admitted
Any party may obtain discovery by a written request that the other party admit “the truth of specified matters of fact, opinion relating to fact, or application of law to fact. A request for admission may relate to a matter that is in controversy between the parties.” (§ 2033, subd. (a) [§ 2033.010].) Within 30 days after service of the requests for admissions, the party to whom the requests are directed “shall respond in writing under oath separately to each request.” (§ 2033, subd. (f) [§ 2033.210].) The requirement that the responses be made under oath is also repeated in subdivision (g) of section 2033 [§ 2033.240]. “Unsworn responses are tantamount to no responses at all.” (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.)
If a party fails to file a timely response to requests for admission, “[t]he requesting party may move for an order that the . . . truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction . . . . [¶] 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 that is in substantial compliance with paragraph (1) of subdivision (f) [§ 2033.220]. It is mandatory that the court impose a monetary sanction . . . on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.” (§ 2033, subd. (k) [§ 2033.280, subd. (b), (c)].)
The statute states that the court “shall make this order” unless proposed responses in substantial compliance are filed before the hearing. (§ 2033, subd. (k) [§ 2033.280, subd. (c)].) It therefore does not allow for any exercise of discretion if proposed responses in substantial compliance are not filed before the hearing. Plaintiff argues that the court erred, as a matter of law, by ordering that the requests for admissions be deemed admitted in this case, because the responses had been timely served and were in “substantial compliance” with the statute, even though they were not verified. (§ 2033, subd. (k) [§ 2033.280, subd. (c)].) We disagree. Since unsworn responses are equivalent to “no responses at all” (Appleton v. Superior Court, supra, 206 Cal.App.3d at p. 636), they cannot be in “substantial compliance” with former section 2033, subd. (f)(1) [§ 2033.220]. (Allen-Pacific, Ltd. v. Superior Court (1997) 57 Cal.App.4th 1546, 1551, disapproved on other grounds in Wilcox v. Birtwhistle (1999)21 Cal.4th 973, 983.) In this case, therefore, since the exception did not apply, the court was required by the statute to grant the motion to deem the requests admitted. (Ibid.; Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 395-396, disapproved on other grounds in Wilcox v. Birtwhistle, supra, 21 Cal.4th at p. 983.) Indeed, the trial court would have exceeded its authority had it denied the motion. (Allen-Pacific, Ltd. v. Superior Court, supra, 57 Cal.App.4th at pp. 1556-1557, disapproved on other grounds in Wilcox v. Birtwhistle, supra, 21 Cal.4th at p. 983.)
Courts have recognized that this is a harsh result. “The law governing the consequences for failing to respond to requests for admission may be the most unforgiving in civil procedure.” (Demyer v. Costa Mesa Mobile Home Estates, supra, 36 Cal.App.4th at p. 394, disapproved on other grounds in Wilcox v. Birtwhistle, supra, 21 Cal.4th at p. 983.) “Woe betide the party who fails to serve responses before the hearing. In that instance, the court has no discretion but to grant the admission motion, usually with fatal consequences for the defaulting party.” (Ibid, fns. omitted.)
Plaintiff had two options under the statute, when served with the motion to deem the requests for admissions admitted. He could have filed proper verifications of the responses “before the hearing on the motion.” (§ 2033, subd. (k) [§ 2033.280, subd. (c)].) Or he could have filed for a protective order, as allowed by former section 2033, subdivision (d) [§ 2033.080]. Plaintiff did neither in this case. “Where . . . neither form of relief is sought, the party propounding the unanswered RFA is entitled to the relief specified in subdivision (k) [§ 2033.280, subd. (c)] regardless of prejudice.” (Allen-Pacific, Ltd. v. Superior Court, supra, 57 Cal.App.4th at p. 1556, disapproved on other grounds in Wilcox v. Birtwhistle, supra, 21 Cal.4th at p. 983.)
Relief from deemed admissions may still be available by a motion to withdraw or amend the admissions under section 2033, subdivision (m) [§ 2033.300]. We turn to that issue next.
Motion for Reconsideration or Relief
The trial court made its deemed admitted order on September 3, 2004. The written order was signed and filed on November 4, 2004. On December 3, 2004, plaintiff brought his motion for reconsideration or relief under section 1008 and section 2033, subdivision (k) [§ 2033.280]. Under section 1008, subdivision (a), a party can ask the court for reconsideration of an order “based upon new or different facts, circumstances, or law” by applying to the same court that made the order within 10 days. Here the plaintiff’s “new or different” fact was counsel’s assertion that he had received the verifications on the afternoon of the September 3, 2004, hearing. However, this did not change the fact that verified responses had not been filed “before the hearing on the motion.” (§ 2033, subd. (k) [§ 2033.280, subd. (c)].) The court rejected this as a basis for reconsideration, and noted further that the verifications were not forwarded to defense counsel until October 20, 2004. On appeal, plaintiff does not raise any arguments specific to the denial of the motion to reconsider pursuant to section 1008.
Plaintiff argues instead that the court should have exercised its discretion to grant relief under section 2033, subdivision (m) [§ 2033.300]. That section provides that a party may withdraw or amend an admission made in response to a request for admissions by applying to the court, which “may permit withdrawal or amendment of an admission only if it determines that the admission was the result of mistake, inadvertence, or excusable neglect, and that the party who obtained the admission will not be substantially prejudiced in maintaining that party’s action or defense on the merits.” (§ 2033, subd. (m) [§ 2033.300, subd. (b)].) In Wilcox v. Birtwhistle, supra, 21 Cal.4th 973, the Supreme Court examined section 2033, subdivision (m) and found that it permitted relief from all admissions, including deemed admissions. The court noted the harsh result of treating as irrevocable a deemed admission that disposes of the entire lawsuit, and disapproved of a line of cases that had precluded any relief from a deemed admission. (Id. at p. 983.)
Although plaintiff argues on appeal that the court in this case should have exercised its discretion under section 2033, subdivision (m) [§ 2033.300], plaintiff did not bring his motion under this statute, and did not cite to Wilcox v. Birtwhistle, supra. Instead, plaintiff asked the court to reconsider its ruling under section 2033, subdivision (k) [§ 2033.280, subd. (c)], on the basis that the responses submitted, which were unverified, were nonetheless in “substantial compliance” with the statute. As we have explained above, since the responses to requests for admissions were unverified, they were legally deficient, and “tantamount to no responses at all.” (Appelton v. Superior Court, supra, 206 Cal.App.3d at p. 636.)
Plaintiff argues on appeal that the court should have granted relief because defendants were not substantially prejudiced by the delay in responding to the requests for admissions. However, even if we were to deem plaintiff’s motion to have been a motion under section 2033, subdivision (m) [§ 2033.300], the lack of substantial prejudice is only one aspect of the basis for relief under that statute. The court may permit relief if it finds both that there was “mistake, inadvertence, or excusable neglect” and that “the party who obtained the admission will not be substantially prejudiced in maintaining that party’s action or defense on the merits.” Lack of prejudice does not by itself justify relief from admissions. (Gribin Von Dyl & Associates, Inc. v. Kovalsky (1986) 185 Cal.App.3d 653, 660.) The trial court’s comments in this case reflect that it was not inclined to find mistake, inadvertence or excusable neglect. The court observed that plaintiff’s counsel, by his own assertion, had verified responses in his possession on September 3, 2004, did not convey those to defendant’s attorney until October 20, 2004, and offered no excuse for the delay. Thus it appears relief would not have been warranted even if plaintiff had brought his motion under the proper statute.
Plaintiff’s reliance on Brigante v. Huang (1993) 20 Cal.App.4th 1569, disapproved on other grounds in Wilcox v. Birtwhistle, supra, 21 Cal.4th at p. 983, is misplaced. In that case, plaintiff and defendant were involved in a multi-car accident. Following the accident, defendant was not heard from again. Plaintiff effected service by publication, and defendant’s insurer appointed counsel to represent her. However, despite all efforts by counsel and several investigators, counsel was unable to locate defendant. Plaintiff served on defendants’ counsel requests for admissions establishing each allegation in the complaint, including substantial damages, although all parties were aware that defendant could not be located, and there was no basis to believe that she was even aware she was being sued. Despite the strong showing of impossibility of obtaining a verified response from defendant, and even though the effect was to establish liability for plaintiff’s damages, the trial court granted the motion to deem the requests for admissions admitted, believing it had no discretion to do otherwise. Judgment was later entered against defendant following a motion for summary judgment based on the deemed admissions. The Court of Appeal in Brigante reversed. The court found that where there is a showing that defendant is not evading the lawsuit or the discovery demand, and is in fact unaware of the pendency of the lawsuit, and reasonable efforts have been made to locate and inform defendant of the litigation and discovery obligations, the court could exercise its discretion to issue an appropriate protective order under section 2033, subdivision (e) [§ 2033.080]. (Id. at p. 1583.)
An important difference distinguishes the case before us from Brigante. Here, plaintiff was obviously aware of the lawsuit because he had initiated it. Furthermore, according to counsel, plaintiff was fully aware of the discovery demands, and had promised to return the verified responses before the hearing date. Counsel had been in touch with plaintiff. And counsel specifically informed the court that plaintiff had been “made aware of the repercussions of no response.” Therefore the basis for exercising discretion found in Brigante is lacking here.
The Requests for Admissions Were Proper
Plaintiff contends that requests for admissions Nos. 5, 6, and 7, were improper because they asked him to admit that he had no case. Request No. 5 asked plaintiff to admit that he was negligent in operating his motorcycle at the time of the accident. Request No. 6 asked him to admit that his negligence was a substantial cause of the collision, and No. 7 asked him to admit that his negligence was the sole cause of the collision. Plaintiff contends that these requests do not comport with the purpose of requests for admissions, which is to obtain the admission of uncontroverted facts and thus save time and expense of proof at trial. (See, e.g., Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618, 634.)
First we note that plaintiff did not submit any opposition whatsoever to defendant’s motion to have the requests for admissions deemed admitted. At the hearing counsel argued only that he had been unable to reach his client. The question whether the requests for admissions were proper was not raised. Plaintiff did raise this argument in his motion for reconsideration; however, this was not based on “new . . . law” within the meaning of section 1008, and the court could properly refuse to consider it. Moreover, plaintiff did not seek relief from a waiver of objections under section 2033, subdivision (k) [§ 2033.290, subd. (a)].
Furthermore, the statute governing requests for admissions provides that a party may ask the opposing party to admit the truth of “specified matters of fact, opinion relating to the fact, or application of law to fact.” (§ 2033, subd. (a) [§ 2033.010].) It further provides that such requests “may relate to a matter that is in controversy between the parties.” (Ibid.) “[T]he fact that the request is for the admission of a controversial matter, or one involving complex facts, or calls for an opinion, is of no moment.” (Cembrook v. Superior Court (1961) 56 Cal.2d 423, 429.) “[W]hen a party is served with a request for admission concerning a legal question properly raised in the pleadings he cannot object simply by asserting that the request calls for a conclusion of law.” (Burke v. Superior Court of Sacramento County (1969) 71 Cal.2d 276, 282.)
In sum, we find no error or abuse of discretion in the court’s rulings deeming the requests for admissions admitted and denying reconsideration or review. “[A] deemed admitted order establishes, by judicial fiat, that a nonresponding party has responded to the requests by admitting the truth of all matters contained therein.” (Wilcox v. Birtwhistle, supra, 21 Cal.4th at p. 979.) The admissions in this case supported the grant of defendants’ motion for summary judgment.
DISPOSITION
The order dismissing the complaint is affirmed.
WE CONCUR:
MIHARA, J., MCADAMS, J.