Lopez v. Superior Court

• Citation: 223 Cal.Rptr. 798,178 Cal.App.3d 925
• Court: California Court of Appeals
• Decision Date: 26 February 1986
• Parties: Maria LOPEZ and Jose Guadalupe Lopez, Petitioners, v. SUPERIOR COURT of the State of California For the County of Los Angeles, Respondent. SPECTRUM INVESTMENT CORPORATION, dba Budget Rent A Car, Real Party in Interest. Civ. B014652.

Page 798

223 Cal.Rptr. 798

178 Cal.App.3d 925

Maria LOPEZ and Jose Guadalupe Lopez, Petitioners, v. SUPERIOR COURT of the State of California For the County of Los Angeles, Respondent.

SPECTRUM INVESTMENT CORPORATION, dba Budget Rent A Car, Real Party in Interest.

Civ. B014652.

Court of Appeal, Second District, Division 1, California.

Feb. 26, 1986.

Review Denied June 5, 1986.

Jeffrey L. Geren, Encino, and Douglas C. Sohn, for petitioners

No appearance for respondent.

Greines, Martin, Stein & Richland and Irving H. Greines, Alan G. Martin and Regina Covitt, Beverly Hills, and Bernard R. Schwam, Encino, for real party in interest.

SPENCER, Presiding Justice.

INTRODUCTION

Petitioners Maria Lopez and Jose Guadalupe Lopez seek a peremptory writ of mandate directing respondent court to vacate its order denying petitioners' motion for summary judgment and finding the request for admissions petitioners submitted to real party Spectrum Investment Corporation a nullity and to enter instead an order granting petitioners summary judgment on the basis of these admissions.

PROCEDURAL BACKGROUND

Petitioners and their coplaintiffs, Lillian Lopez and Jose De Jesus Lopez, initiated suit against real party on July 23, 1981. Petitioners' coplaintiffs served real party with a request for admissions on January 10, 1985; petitioners served their own request five days later. Real party did not respond or object to either request for admissions.

On February 20, 1985, coplaintiffs served on real party's original and successor counsel by certified mail, return receipt requested, notice that the facts enumerated in coplaintiffs' request were deemed admitted. On February 21, petitioners served similar notice on the same individuals and in the same manner. In each instance, receipts were returned to the sender. Real party failed to move for relief pursuant to Code of Civil Procedure section 473 within 30 days, as required by Code of Civil Procedure section 2033, subdivision (a).

On April 3, 1985, coplaintiffs moved for summary judgment against real party. The motion was based on the facts enumerated in coplaintiffs' request for admissions and thereafter deemed admitted. Petitioners also moved for summary judgment at this time. The facts enumerated in their request for admissions, and subsequently deemed admitted, formed the basis for their motion also. The matter was set for hearing on May 9, after which it was continued to June 10, 1985.

On May 30, 1985, real party filed written opposition to coplaintiffs' motion for summary judgment. The motion was opposed solely on the ground that the statutory warning recited in coplaintiffs' request for admissions was improperly placed and hence failed to give adequate warning in compliance with Code of Civil Procedure section 2033, subdivision (a). Petitioners and coplaintiffs respectively filed a response to this opposition. At no time did real party expressly oppose petitioners' motion for summary judgment. Coplaintiffs' request for admissions recited the statutory warning at the end of introductory paragraphs, setting forth the factual enumerations requested to be admitted on successive pages. Petitioners' request for admissions recited the warning at the end of the factual enumerations, immediately preceding the date and signature lines of the document.

On June 10, 1985, respondent court granted coplaintiffs' motion for summary judgment and denied petitioners' motion. The motion was denied solely on the ground that petitioners' request for admissions was a nullity by virtue of its inadequate recitation of the required statutory warning. This petition followed.

CONTENTION

Petitioners contend respondent court erred in failing to give effect to their request for admissions, in that the court's reliance on Hernandez v. Temple (1983) 142 Cal.App.3d 286, 190 Cal.Rptr. 853 was misplaced. For the reasons set forth below, we agree.

DISCUSSION

Code of Civil Procedure section 2033, subdivision (a), provides in pertinent part: "Each of the matters of which an admission is requested shall be deemed admitted, provided that the original request contained substantially the following words at the end thereof: 'If you fail to comply with the provisions of Section 2033 of the Code of Civil Procedure with respect to this request for admissions, each of the matters of which an admission is requested will be deemed admitted'...." In Hernandez v. Temple, supra, 142 Cal.App.3d 286, 190 Cal.Rptr. 853, this division held, "a warning contained in the middle of the introductory paragraphs of a request [for admissions] does not meet the legislative requirement that the warning be placed at the end of the 'original request.' " (At p. 290, 190 Cal.Rptr. 853.) We reasoned: "Our determination whether the matters regarding which admission was requested have been deemed admitted turns upon the requirement that the warning of the 'original request' be 'at the end thereof.' In Billings v. Edwards (1981) 120 Cal.App.3d 238, 246 ..., the court was faced with the question whether placement of the warning at the end of the introductory portion of the request meets the requirement that the warning be at the end of the 'original request.' Noting that the required statement was at the end of the 'request portion' of the document and that the numbered requests then followed, the Billings court held that the party propounding the request for admissions had complied with Code of Civil Procedure section 2033.

"Such a construction better achieves the clear statutory purpose of providing adequate notice of the consequence of failure to respond than does the construction proposed by the dissenting opinion. The construction proposed by the dissenting opinion would allow the warning to be buried in the middle of a lengthy introductory portion of the document as long as the warning was placed immediately following language of request. We do not believe this latter construction was intended by the Legislature. Although the statute expressly permits the language of warning to vary slightly from the language it suggests, the statute's requirement that the warning be placed at the end of the request portion of the document is unqualified." (Ibid.)

Hansen v. Superior Court (1983) 149 Cal.App.3d 823, 197 Cal.Rptr. 175 followed Hernandez. Hansen involves a factual situation similar to but far more egregious than that present in Hernandez. In Hansen, the statutory warning was placed in the middle of introductory paragraphs in a document which combined interrogatories with a request for admissions. The two categories were not clearly separated; instead, a handful of enumerated facts requested to be admitted were buried in hundreds of interrogatories. Hansen interprets Hernandez as follows: "The court approved the apparent conclusion in Billings v. Edwards [, supra,] 120 Cal.App.3d 238, 246 ..., that the caveat need not be placed at the end of the list of enumerated requests so long as it appears at the end of 'the request portion of the document,' immediately before the 'numbered requests.' But the court rejected a proposal that 'would allow the warning to be buried in the middle of a lengthy introductory portion of the document as long as the warning was placed immediately following language of request.' " (Hansen, supra, 149 Cal.App.3d at p. 828, 197 Cal.Rptr. 175.) Consonant with this interpretation, Hansen concludes the warning at issue therein is improperly placed. (See also Enfantino v. Superior Court (1984) 162 Cal.App.3d 1110, 208 Cal.Rptr. 829.)

Barnett v. American-Cal Medical Services (1984) 156 Cal.App.3d 260, 202 Cal.Rptr. 735 was the next case to consider this issue. In Barnett, the statutory warning followed the enumeration of the specific facts requested to be admitted, immediately preceding the date and signature lines of the document. In holding this placement adequately complies with Code of Civil Procedure section 2033, subdivision (a), Barnett does not contradict or decline to follow Hernandez. (But see Mutual Mortgage Co. v. Avis (1986) 176 Cal.App.3d 799, 222 Cal.Rptr. 342.) Instead, the court distinguishes Hernandez on its facts and, noting the reliance on Billings v. Edwards, supra, 120 Cal.App.3d 238, 174 Cal.Rptr. 722, explains: "In Billings appellants argued the statutory warning should have been at the end of the enumerated requests, as they are here, rather than following the introductory portion of the document. The court dismissed the argument, noting, 'The required statement is at the end of the request portion of the document. The numbered requests then follow. Plaintiff could not have been misled and would have been clearly warned in compliance with section 2033.' (Id., at p. 246 .) The same rationale applies in this case. (See also Hansen v. Superior Court, supra, 149 Cal.App.3d 823, 828 ....)" (Barnett, supra, 156 Cal.App.3d at p. 264, 202 Cal.Rptr. 735.) The court concludes Hernandez is inapplicable; in Barnett, the party receiving the request could not have been misled and was clearly warned: "The warning was not hidden in the middle of introductory language as it was in Hernandez, but placed at the end of the original document requesting the admissions." (Id., at p. 265, 202 Cal.Rptr. 735; accord, Freshman, Mulvaney, Comsky, Kahan & Deutsch v. Superior Court (1985) 173 Cal.App.3d 223, 231, 218 Cal.Rptr. 533.)

We agree with the distinctions drawn in Barnett. Billings, of course, should not be read as holding the statutory warning must appear "at the end of the request portion of the document"; it simply holds it is sufficient if it does appear there. (120 Cal.App.3d at p. 246, 174 Cal.Rptr. 722.) And Hernandez goes no farther than to condemn placement of the warning in the middle of introductory material. (142 Cal.App.3d at p. 290, 190 Cal.Rptr. 853.)

It is noteworthy that the document at issue in Billings is substantially identical to the form request for admissions adopted by the ...