Allen-Pacific, Ltd. v. Superior Court

• Decision Date: 01 October 1997
• Docket Number: ALLEN-PACIFI,LTD,No. A077819,A077819
• Citation: 67 Cal.Rptr.2d 804,57 Cal.App.4th 1546
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 7758, 97 Daily Journal D.A.R. 12,482 , Petitioner, v. The SUPERIOR COURT of San Francisco County, Respondent, Yee Yim CHAN et al., Real Parties in Interest.

Page 804

67 Cal.Rptr.2d 804

57 Cal.App.4th 1546, 97 Cal. Daily Op. Serv. 7758,

97 Daily Journal D.A.R. 12,482

ALLEN-PACIFIC, LTD., Petitioner, v. The SUPERIOR COURT of San Francisco County, Respondent, Yee Yim CHAN et al., Real Parties in Interest.

No. A077819.

Court of Appeal, First District, Division 2, California.

Oct. 1, 1997.

McCutchen, Doyle, Brown & Enersen, L.L.P., Robert A. Lewis, Denise S. Blocker, William Carpenter, San Francisco, for Petitioner.

Jeffrey J. Chang & Associates, Philip H. Lo, San Francisco, for Real Parties in Interest.

KLINE, Presiding Justice.

Petitioner seeks a writ of mandate directing the lower court to set aside its order denying petitioner's motion for an order that the truth of the matters specified in its requests for admissions be deemed admitted and for a monetary sanction, and to enter an order granting the motion. As we explain, petitioner is entitled to the relief sought by its motion; accordingly, we shall grant the petition.

Facts

On April 1, 1996 petitioner Allen-Pacific, Ltd. commenced the underlying action against real parties in interest Yee Yin Chan and American Golden Pacific Investments, Inc., (collectively defendants). Alleging causes of action for fraud and conversion, the suit was based on the claim that petitioner shipped wood-working machinery worth approximately $700,000 to defendants and that they took possession of the shipment at the dock in Guangzhou in the People's Republic of China and resold it to others without paying for the goods.

Petitioners commenced discovery in April 1996 by seeking to take Chan's deposition. At first petitioner was told that Chan, who resides in Los Angeles and is president of the corporate defendant, was unavailable because he was traveling in China. When in June Chan returned and petitioner again sought to depose him it was told by counsel he was too ill to testify. Having been told Chan's condition would likely improve by early September and that he was then in California, petitioner propounded several discovery requests to Chan on September 6, including a second request for admissions (RFA). Responses to the requests, which were due on November 14, were not forthcoming. After being told Chan had again departed for China, petitioner on November 20 moved, inter alia, to deem the truth of the matters specified in the RFA's admitted pursuant to Code of Civil Procedure section 2033, subdivision (k), ¹ and for monetary sanctions. Prior to the hearing, which was held on December 17, defendants responded to the RFA, but the response was signed by counsel for defendants and was not under oath, and thus not in compliance with subdivision (g), which requires that the response be signed by the party to whom the RFA was directed and that this be done under oath.

At the December 17 hearing, the trial court questioned Maurice K. Wong, counsel for defendants, about the nature of Chan's medical condition. ² Mr. Wong provided the court certified translations of medical diagnoses of Mr. Chan but admitted that, as he was not a physician, he did not fully understand the documentation. The court directed Wong to obtain further information about his client's medical condition and file it with the court no later than January 10, 1997. The court also advised counsel that a response to an RFA signed only by counsel and unverified by a party was invalid and directed him to file a verified response before the next hearing, which was set for January 17.

In the course of making the foregoing rulings, the court explicitly rejected petitioner's assertion that, as a verified response had not then been filed, the court lacked discretion to deny its motion to deem admitted the matters specified in the RFA and for monetary sanctions, and that the court also had no authority to extend the time for filing a verified response to that request.

On January 13 defendants mailed petitioner a document which purported to be a "supplement" to its earlier, unverified, response to petitioner's RFA. This response was properly verified by Chan, who executed the verification form on January 3 at Shenzen in the People's Republic of China.

At the hearing on January 17, and on the basis of discovery responses defendants made subsequent to the December 17 hearing, the court denied petitioner the relief it sought. In an order dated January 30, the court stated in material part that, because "defendants served a verified response to [petitioner's] second set of requests for admissions, having served an unverified response before the hearing opened on December 17 .... [petitioner's] motion to deem admitted matters covered in its requests for admissions is denied." Petitioner's request for monetary sanctions was presumably denied for the same reason.

Discussion

The sole question is whether the trial court had discretion to deny petitioner's motion that the truth of the matters specified in its RFA be deemed admitted and for monetary sanctions.

Section 2033, subdivision (g) provides, as material, that "[t]he party to whom the requests for admissions are directed shall sign the response under oath, unless the response contains only objections."

Subdivision (k) states that "[i]f a party to whom the requests for admission have been directed fails to file a timely response, that party thereby waives any objection to the requests, including one based on privilege or on the protection for work product under Section 2018." ³ The subdivision later provides that "[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 under Section 2023. The court shall make this order, unless it finds that the party to whom the requests for admissions 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) [relating to the form and substance of answers or objections to the requests]. It is mandatory that the court impose a monetary sanction under Section 2023 on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion." (Italics added.)

Defendants tacitly concede, as they must, that the response to the RFA provided in behalf of Chan prior to the initial hearing on petitioner's motion failed to conform to the statutory prescription, as it was not signed by a party and was not under oath. As succinctly stated in Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 253 Cal.Rptr. 762, "[u]nsworn responses are tantamount to no responses at all." (Id., at p. 636, 253 Cal.Rptr. 762, citing Zorro Inv. Co. v. Great Pacific Securities Corp. (1977) 69 Cal.App.3d 907, 914, 138 Cal.Rptr. 410; see also Brigante v. Huang (1993) 20 Cal.App.4th 1569, 1575, 25 Cal.Rptr.2d 354 [§ 446 does not permit an attorney's verification of requests for admission].) Defendants should have anticipated Chan's failure to timely file a verified response would have serious consequences.

"Under the provisions of section 2033, subdivision (k), a court must grant a motion to have admission requests deemed admitted where responses have not been served prior to the hearing or, if such responses were served, they were not in substantial compliance with section 2033, subdivision (f)(1)." (Tobin v. Oris (1992) 3 Cal.App.4th 814, 827, 4 Cal.Rptr.2d 736, italics added.) It is no secret that "[t]he law governing the consequences for failing to respond to requests for admission may be the most unforgiving in civil procedure. There is no relief under section 473. The defaulting party is limited to the remedies available in the statute specifically governing requests for admission, section 2033, and within section 2033 there is no general provision for relief. The closest analog to section 473 in section 2033 is subdivision (m) [relating to the amendment or withdrawal of admissions]. Subdivision (m), however, has been held inapplicable to missing the deadline for responding to admissions requests. A party who has failed to file responses must look to subdivision (k) for relief, and subdivision (k) operates in a completely nondiscretionary manner. The propounding party need give no warning ... it simply files a motion to deem the matters covered by the requests admitted. The nonresponding party then has until the 'hearing on the motion' to serve responses to the admission request. If the party manages to serve its responses before the hearing, the court has no discretion but to deny the motion. But 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. One might call it 'two strikes and you're out' as applied to civil procedure." (Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 394-396, 42 Cal.Rptr.2d 260, fns. omitted, italics added; accord, Courtesy Claims Service, Inc. v. Superior Court (1990) 219 Cal.App.3d 52, 56, 268 Cal.Rptr. 30.)

Defendants maintain that notwithstanding the strictness with which the requirements of section 2033 are ordinarily enforced, the statute does not deprive trial courts of the discretion necessary to insure "justice and equity." This argument, which is primarily based on Cembrook v. Superior Court 1961) 56 Cal.2d 423, 15 Cal.Rptr. 127, 364 P.2d 303 and Brigante v. Huang, supra 20 Cal.App.4th 1569, 25 Cal.Rptr.2d 354, ⁴ does not impress us.

Defendants rely on Cembrook for no apparent reason other than the presence in the opinion of the following sentence: "When the objections [to discovery] are predicated upon annoyance, expense, embarrassment, oppression, or any other ground based on justice and equity, the trial court is vested with wide discretion, the exercise of which will not be disturbed by the appellate courts in the...