Brigante v. Huang

• Decision Date: 14 December 1993
• Docket Number: No. B048731,B048731
• Citation: 20 Cal.App.4th 1569,25 Cal.Rptr.2d 354
• Court: California Court of Appeals Court of Appeals
• Parties: Glenn BRIGANTE, Plaintiff and Respondent, v. Yee-Lee Lo HUANG, Defendant and Appellant.

Page 354

25 Cal.Rptr.2d 354

20 Cal.App.4th 1569

Glenn BRIGANTE, Plaintiff and Respondent, v. Yee-Lee Lo HUANG, Defendant and Appellant.

No. B048731.

Court of Appeal, Second District, Division 4, California.

Dec. 14, 1993.

Hornberger & Criswell, Janik, Lester & Dunn, and Douglas Fee, Los Angeles, for defendant and appellant.

Zimmerman & Kahanowitch, Richard Kahanowitch and D. Alton Kelly, Encino, for plaintiff and respondent.

EPSTEIN, Associate Justice.

This is a case about the discretion of a trial court in ruling on a motion to deem matters admitted under Code of Civil Procedure section 2033. ¹

The defendant was involved in a multi-car accident on the Hollywood Freeway. The plaintiff, who was driving one of the other cars, filed a lawsuit against her. Despite substantial efforts to locate the defendant, none of the other parties, nor any of their attorneys or agents, has been able to reach her since the accident. Nor have any of them heard from her. Plaintiff eventually effected service by publication pursuant to a court order. At that point defendant's insurer--for she was insured--appointed a law firm to represent her interests. The attorneys filed a general denial.

Plaintiff's counsel sent requests for admissions (RFAs) to defense counsel. The RFAs tracked the complaint, paragraph by paragraph, calling upon defendant to admit or deny the truth of each of its allegations. They also asked her to admit or deny that the plaintiff had suffered at least $500,000 in damages, and that the accident was caused by defendant's violation of two specified provisions of the Vehicle Code. Since responses to RFAs must be verified by the responding party (an attorney's verification will not do when the responding party is a natural person), and since the defendant could not be found, no properly verified response was ever filed. Plaintiff applied to the court for an order that the RFAs be deemed admitted. The motion was granted and, later, plaintiff's motion for summary judgment was granted based on the matters deemed admitted. A $500,000 judgment was entered in favor of plaintiff, against defendant.

The principal issue in this case is whether, under these circumstances, the court had discretion to do anything other than order that the matters in the RFAs be deemed admitted. We conclude that it did. Because the trial court apparently was of the view

that it had no discretion to exercise and, in any event, failed to exercise it when asked to do so, we reverse the judgment and remand the case for an exercise of discretion.

PROCEDURAL SUMMARY

The defendant in this case is Yee-Lee Lo Huang. She appeals from a summary judgment awarding $500,000 in damages to plaintiff Glenn Brigante in his action for personal injuries.

Plaintiff's unverified complaint alleges that he was driving on the Hollywood Freeway near Lankershim Boulevard when his vehicle was involved in a collision. Several persons, including the defendant, are alleged to have negligently caused the accident. Plaintiff claimed to have suffered severe bodily injuries and property damage to his vehicle as a result of the collision.

Plaintiff's counsel was unable to locate defendant for service of process. His private investigator was informed by a claims adjuster for defendant's insurance carrier that the carrier's investigator also had been "unable to locate [defendant] at any time." The court granted an application for service by publication of summons, pursuant to section 415.50, subdivision (a).

Once service by publication had been effected, defendant's insurance carrier retained a law firm to represent her in the action. Although defendant's whereabouts were still unknown to the insurer and to counsel, an answer was filed on her behalf. The answer consisted of a general denial and an affirmative defense that plaintiff was negligently operating his vehicle at the time of the accident. This pleading effected a general appearance by defendant. (§ 1014; California Dental Assn. v. American Dental Assn. (1979) 23 Cal.3d 346, 351, 152 Cal.Rptr. 546, 590 P.2d 401.)

Shortly after that, in February 1987, defense counsel sent plaintiff's attorney a request for a statement of damages pursuant to section 425.11, and served a demand for jury trial. There is no indication in the record that plaintiff ever responded to the request for a statement of damages. A few days after the damages request had been served, plaintiff's attorney served a set of 25 requests for admissions (the 1987 RFAs) on appellant's counsel. ² The 1987 RFAs tracked the 13 paragraphs of the complaint, with a separate request for each, asking that defendant admit or deny the truth of "each and every allegation contained" in the paragraph. The 1987 RFAs also asked defendant to admit or deny that plaintiff had suffered over $500,000 in damages, including $28,563.94 in medical expenses, $6,500 in lost earnings, $3,500 property damage, and $450,000 in pain and suffering; that the accident was entirely due to defendant's negligence; that she had violated two specified provisions of the Vehicle Code, which violations had "caused" the accident; and that she had no legal or factual defense to the lawsuit.

The effect of these RFAs, if admitted, was to totally establish the plaintiff's lawsuit and all of the damages he claimed, and to obliterate any possible defense. Defendant's counsel moved for a protective order "to be relieved of the time requirements" of section 2033 until such time as defendant was located. The motion also asked that "any further Interrogatories or Requests for Admissions be approved by the Court upon motion by plaintiff prior to being propounded to defendant." In a declaration submitted in support of the motion, defendant's counsel averred that plaintiff's attorney knew that defendant's "whereabouts have been unknown since prior to the plaintiff's service upon her by publication." Although plaintiff's attorney filed written opposition to the motion, he did not appear at the April 2, 1987 hearing on the matter. The trial court granted a protective order, but gave far less relief than No verified response to the 1987 RFAs was ever served, nor did plaintiff serve a notice that the truth of the matters stated had been deemed admitted. That notice was required under the former statute in order to complete the request for admissions process. ³

had been requested: it extended defendant's time within which to serve a verified response to the RFAs to May 17, 1987, adding that "[t]he strong public interest in resolving matters on the merits warrants the court taking this action."

Almost a year later, on March 28, 1988, counsel for defendant's insurer entered into a stipulation with counsel for plaintiff and the attorneys for six other defendants, for distribution of $40,000. That sum represented the remaining limits of defendant's insurance policy that had been interpleaded in a separate action. Plaintiff's attorney stipulated to accept $20,000 from the interpleaded funds. By then, plaintiff already had been paid $5,000 by defendant's carrier. The trial court in the interpleader action ordered distribution of the interpleaded funds pursuant to the parties' stipulation. Thus, by March 1988, plaintiff had been paid a total of $25,000 by defendant's insurer, the full amount of the policy limit to a single injured party in a single occurrence.

Each of the parties to the stipulation, other than plaintiff, subsequently executed a release and dismissal of claims against defendant in this action. Plaintiff refused to do so. His attorney explained that plaintiff "would not sign a release and dismissal because he had previously demanded the policy limits of $25,000, which had not been paid until the interpleading of the full policy limits." Plaintiff's attorney told defendant's counsel that plaintiff "wanted to obtain an excess policy judgment and subsequently obtain an assignment from defendant ... to proceed against the [insurer] for bad faith."

Plaintiff filed an at-issue memorandum in March 1989, in which he stated that general damages of $250,000 and special damages of $30,000 were being sought.

On March 10, 1989, plaintiff served a second set of RFAs on defendant's counsel. (The 1989 RFAs.) ⁴ The 1989 RFAs were identical to the 1987 RFAs in every material respect. This time, defendant's counsel did not move the court for a protective order, as such. Instead, on April 7, 1989, an attorney for defendant served a purported response to the document, denying most of the material requests. The response was verified on information and belief by counsel, in mistaken reliance on section 446. ⁵ This error was to have a significant diversionary effect on the litigation later on. Eventually, defense counsel acknowledged that an individual party to litigation must personally verify discovery, and that section 446 did not permit an attorney's verification of a request for admissions. (See Steele v. Totah (1986) 180 Cal.App.3d 545, 550, 225 Cal.Rptr. 635.)

Since, in her verification, the attorney had sworn that she had "information and belief" sufficient to permit her to respond to the RFAs, plaintiff's counsel noticed her deposition and asked that she produce documents relating to the information that furnished the basis for her verification. Defense counsel responded with a motion for a protective order, arguing that counsel's information was covered by the statutory protection for work product and the attorney-client privilege, and invoking the well-established antipathy to depositions of opposing counsel. (See Spectra-Physics, Inc. v. Superior Court (1988) 198 Cal.App.3d 1487, 1494, 244 Cal.Rptr. 258.) Plaintiff's counsel rejoined that, pursuant to section 2033, subdivision (g), an attorney who verifies a response for requests for admission waives the lawyer-client privilege and any protection for work product.

When the motion for protective order came on for hearing, the trial judge...