Courtesy Claims Service, Inc. v. Superior Court

• Decision Date: 26 March 1990
• Docket Number: No. B045059,B045059
• Citation: 219 Cal.App.3d 52,268 Cal.Rptr. 30
• Court: California Court of Appeals Court of Appeals
• Parties: ., et al., Petitioners, v. SUPERIOR COURT of the State of California for the County of Los Angeles, Respondent. Raymond GALVAN, et al., Real Parties in Interest. Court of Appeal, Second District, Division 5, California

Page 30

268 Cal.Rptr. 30

219 Cal.App.3d 52

COURTESY CLAIMS SERVICE, INC., et al., Petitioners, v. SUPERIOR COURT of the State of California for the County of Los Angeles, Respondent Raymond GALVAN, et al., Real Parties in Interest.

No. B045059.

Court of Appeal, Second District, Division 5, California.

March 26, 1990.

Fisher & Prager and Margret G. Parke, Los Angeles, for petitioners.

No appearance for respondent.

Law Offices of A. Tod Hindin, Beverly Hills, and Bruce Bright, Los Angeles, for real parties in interest.

OPINION AND ORDER FOR PEREMPTORY WRIT OF MANDATE

BOREN, Associate Justice.

Petitioners seek review of an order of the respondent court denying their motion, pursuant to Code of Civil Procedure section 2033, subdivision (k), for an order that matters contained in requests for admissions be deemed admitted. ¹ The petition is granted.

FACTS

This is an insurance "bad faith" action. (Ins.Code, § 790.03, subd. (h).) Raymond Galvan, Lucina Galvan and Rachel Howard ("plaintiffs") sued Stephen Hernandez in municipal court for personal injuries and property damages sustained in an automobile accident. Plaintiffs made a claim under Hernandez' automobile policy with Utah Home Fire Insurance Company ("Utah"), which retained petitioner Courtesy Claims Service ("Courtesy") to adjust plaintiffs' claim. Plaintiffs thereafter obtained default judgments of $15,000 each against Hernandez. Utah paid Hernandez' policy limits of approximately $30,000. Plaintiffs executed a covenant not to enforce their judgments against Hernandez personally in exchange for an assignment of his rights against Utah and Courtesy. Plaintiffs filed this "bad faith" action as third party claimants and under the assignment of Hernandez' rights, alleging that Courtesy and Utah failed to promptly negotiate and settle their claims, despite a settlement demand. Hernandez, who is represented by the same counsel as the other plaintiffs, filed his own bad faith action, which has been consolidated with this case.

In April, 1989, Utah served identical sets of requests for admissions on each plaintiff, including Hernandez. Courtesy served similar requests on July 13, 1989. Plaintiffs did not file responses to either set of requests.

On August 18, 1989, Courtesy filed a "Motion Deeming Admitted Truthfulness of Matters and Genuineness of Documents." The hearing on the motion was set for September 5. On August 24, plaintiffs' counsel served Courtesy with a response on behalf of Rachel Howard only. On August 29, all plaintiffs served Utah with responses to its requests of the previous April. ²

Courtesy's motion was heard on September 5, 1989. Despite the concession of plaintiffs' counsel that no responses had been served on behalf of the Galvans or Hernandez, the court denied Courtesy's motion "in the interest of justice" and gave the remaining plaintiffs twenty days to submit responses. ³ The court imposed sanctions against plaintiffs and their attorney in the sum of $764.00.

DISCUSSION

The court's ruling was contrary to the mandatory language of section 2033, subdivision (k). That section makes no exception for "the interests of justice;" rather, it specifically provides that if proposed responses are not served prior to the hearing on the motion, the court shall make an order that the matters raised in the requests be deemed admitted.

This mandatory language was no accident. Under former section 2033, subdivision (a), failure to timely respond to requests for admissions resulted in automatic admissions of the requested matters. This produced harsh, and in many cases, confusing results: a party who was willing to make the admission simply did not file a response, and the propounding party could not determine whether the recipient's failure to respond was attributable to his willingness to make the admission, or to the "oversight or sloth" of his attorney. (Reporter's Notes, State Bar/Judicial Council Joint Commission on Discovery, 3 Hogan, Modern Cal.Discovery 4th, p. 254.)

The State Bar/Judicial Council Joint Commission on Discovery, drafters of the Civil Discovery Act of 1986, recommended abolition of the "deemed admission" and substitution of the procedure now embodied in section 2033, subdivision (k), which allows the propounding party to make a motion that any unanswered requests be deemed admitted. That procedure "requires the court to grant this motion unless a proposed response is served before the hearing on the motion. Moreover, it makes the imposition of a monetary sanction against the delinquent party mandatory. The Commission recognizes that its proposal is shifting to the party seeking discovery the task of applying to the court to enforce a response to which that party is already entitled. However, it believes that the present practice [deemed admissions] is draconian, and that the prospect of a mandatory monetary sanction will in most instances provide sufficient incentive for the party to whom the request is directed to comply with the requirements of this discovery method." (Id. at p. 255; emphasis added.)

In spite of the risk that the matters contained in the requests would be deemed admitted, and the threat of monetary sanctions, plaintiffs did not file any responses to the requests on behalf of the Galvans and Hernandez, and so conceded at the hearing on Courtesy's motion. Plaintiffs now argue, however, that they did file responses, which the court properly allowed them to "amend" because they satisfied the "substantial compliance" requirements of section 2033, subdivision (f). ⁴ We reject this argument, for several reasons.

First, there was nothing to "amend." The responses submitted by plaintiffs were to requests propounded by Utah, a different defendant represented by different counsel. Plaintiffs did not submit any response to the requests propounded by Courtesy until late October, 1989, after this petition was filed and after Courtesy filed a motion to dismiss.

Second, plaintiffs did not "substantially comply" with section 2033, subdivision (f), which regulates the content of the response of a party to whom requests for admission are directed. A prerequisite of that section is that a response first be filed. Plaintiffs did not do so here.

Plaintiffs, carrying their "amendment"...