Wilcox v. Birtwhistle

• Decision Date: 22 September 1998
• Docket Number: No. F026993,F026993
• Citation: 66 Cal.App.4th 1065,78 Cal.Rptr.2d 464
• Parties: Previously published at 66 Cal.App.4th 1065 66 Cal.App.4th 1065, 98 Cal. Daily Op. Serv. 7372, 98 Daily Journal D.A.R. 10,197 Mark Lee WILCOX et al., Plaintiffs and Appellants, v. William BIRTWHISTLE, M.D., Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

Page 464

78 Cal.Rptr.2d 464

Previously published at 66 Cal.App.4th 1065

66 Cal.App.4th 1065, 98 Cal. Daily Op. Serv. 7372,

98 Daily Journal D.A.R. 10,197

Mark Lee WILCOX et al., Plaintiffs and Appellants, v. William BIRTWHISTLE, M.D., Defendant and Respondent.

No. F026993.

Court of Appeal, Fifth District, California.

Sept. 22, 1998.

Review Granted Dec. 22, 1998.

[66 Cal.App.4th 1067] Allan Lerch & Associates, Allan Lerch and Richard J. Reilley, San Francisco, for Plaintiffs and Appellants.

Dummit, Faber & Briegleb and Randall R. McKinnon, Sacramento, for Defendant and Respondent.

OPINION

ARDAIZ, Associate Justice.

INTRODUCTION

Code of Civil Procedure section 2033 governs the use of requests for admission in civil cases. Subdivision (k) of that statute provides that when a party to whom requests for admission have been directed fails to serve a timely response, the requesting party "may move for an order that ... the truth of any matters specified in the requests be deemed admitted...." Subdivision (k) further provides that "[t]he 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" another subdivision describing the requirements of a proper response. Once such a "deemed admitted" order is made, may the non-responding party ever obtain relief from the "deemed admitted" order, regardless of the circumstances which may have led to the non-responding party's failure to timely respond to the request for admissions and subsequent failure to submit a proposed response prior to the hearing on the requesting party's motion for a "deemed admitted" order? Subdivision (m) of the statute provides that "[t]he court 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." Does the word "admission" in subdivision (m) encompass only a written admission served by a responding party in response to a request for admission? Or does it also include an " admission" made by way of a court's subdivision (k) order that the truth of a matter be "deemed admitted"? In St. Paul Fire & Marine Ins. Co. v. Superior Court (1992) 2 Cal.App.4th 843, 3 Cal.Rptr.2d 412, the Sixth District held that subdivision (m) does not apply to "deemed admitted" orders. We respectfully disagree with St. Paul Fire & Marine. As we shall explain, we are of the view that the Legislature intended the word "admission" in subdivision (m) to include not only the usual garden variety admission, but also any matter "deemed admitted" pursuant to a subdivision (k) "deemed admitted" order.

FACTS

In this medical malpractice action, a defendant doctor (respondent William Birtwhistle, M.D.) served a plaintiff (appellant Mark L. Wilcox, a minor, by and through his guardian ad litem Maria J. Wilcox) with a request for admissions. The request asked the plaintiff to admit that the doctor "was not negligent in the manner in which he provided medical care to (plaintiff)" and that "[t]he plaintiff has not suffered any personal injury as a result of the medical care which was provided by this defendant." The authors of a treatise on discovery have referred to the serving of a request for admissions of this type as "spin[ning] the 'deemed admission' wheel." (See Hogan, California Discovery (4th ed.1996), § 9.15, and Brigante v. Huang (1993) 20 Cal.App.4th 1569, 1579, 25 Cal.Rptr.2d 354.) That is, these were requests which "did not include issues as to which the parties might conceivably agree" and "essentially asked plaintiffs to admit that they had no cause of action." (Hogan, supra; see also Elston v. City of Turlock (1985) 38 Cal.3d 227, 235, 211 Cal.Rptr. 416, 695 P.2d 713.) In the present case, Dr. Birtwhistle spun and won. ¹ First, the plaintiff did not timely respond to the request. Then, for reasons which we will later mention but which are not strictly pertinent to our reading of Code of Civil Procedure section 2033, subdivision (m), the plaintiff did not provide proper responses before the hearing on the doctor's motion to have the truth of the matters specified in the request be deemed admitted. The defendant doctor thus obtained his "deemed admitted" order. Sixteen days later, the plaintiff moved for relief from the deemed admitted order. At hearing on the motion, the judge stated: "If I let the record stand as it is, the defense has a wonderful windfall because of excusable mistake by an attorney. And we have a plaintiff with brain damage who's going to go and walk away from the courthouse with the aide [sic ] of his parents never to have an opportunity to have his case heard on the merits." The trial judge expressly noted, however, that "the St. Paul case ... is controlling" and denied the motion for relief.

Armed with the "deemed admitted" order, Dr. Birtwhistle moved for and obtained summary judgment. ² Plaintiffs' opposition to the summary judgment motion included the declaration of a medical doctor, David Kendal Stevenson, M.D., who described himself as "a physician duly licensed to practice medicine by the State of California" and "a Professor of Pediatrics as well as the Chief of the Division of Neonatal and Developmental Medicine at Stanford University." Dr. Stevenson opined that Dr. Birtwhistle "deviated from the accepted standards of care (was negligent) in treating MARK LEE WILCOX" in that Dr. Birtwhistle "failed to prescribe an adequate course of follow-up care, failed to order follow-up tests and studies, all of which led to the necessity of the double volume transfusion resulting in plaintiff's cardiac arrest and brain damage." The court's order granting summary judgment stated in part: "The issues of negligence & causation have been conclusively established against the plaintiffs by the Order for Deemed Admissions. Pursuant to that Order it is conclusively established that defendant was not negligent and that the actions of the defendant were not the cause of any injury to the plaintiff. Such facts being deemed admitted, the plaintiff is not permitted to contradict them and therefore the declaration of Dr. Stevenson cannot be considered." In short, Dr. Stevenson's declaration would have created a triable issue of fact (see Code Civ. Proc., § 437c, subd. (c)) if not for the existence of the "deemed admitted" order.

Plaintiffs now appeal from the judgment in favor of Dr. Birtwhistle. They contend that the court erred in refusing to exercise Code of Civil Procedure section 2033, subdivision (m) discretion on their motion for relief from the court's "deemed admitted" order. They contend that if the court had exercised such discretion, a "different result would have been probable" (Code Civ. Proc., § 475) i.e., the court may well have granted the minor plaintiff's motion for relief, and without the "deemed admitted" order Dr. Birtwhistle would not have obtained summary judgment. As we shall explain, we agree with plaintiffs.

DISCUSSION

"We begin with the fundamental rule that our primary task in construing a statute is to determine the Legislature's intent." (Brown v. Kelly Broadcasting Co. (1989)48 Cal.3d 711, 724, 257 Cal.Rptr. 708, 771 P.2d 406; People v. Fuhrman (1997) 16 Cal.4th 930, 937, 67 Cal.Rptr.2d 1, 941 P.2d 1189.) "The court turns first to the words themselves for the answer." (People v. Knowles (1950) 35 Cal.2d 175, 182, 217 P.2d 1.) "When statutory language is ... clear and unambiguous there is no need for construction, and courts should not indulge in it." (Solberg v. Superior Court (1977) 19 Cal.3d 182, 198, 137 Cal.Rptr. 460, 561 P.2d 1148; in accord, see also Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, at pp. 233-234, 45 Cal.Rptr.2d 207, 902 P.2d 225.) "Where the words of the statute are clear, we may not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history." (Trope v. Katz (1995) 11 Cal.4th 274, 280, 45 Cal.Rptr.2d 241, 902 P.2d 259.) A statute "must be given a reasonable and common sense interpretation consistent with the apparent purpose and intention of the lawmakers, practical rather than technical in nature, which upon application will result in wise policy rather than mischief or absurdity." (City of Poway v. City of San Diego (1991) 229 Cal.App.3d 847, 858, 280 Cal.Rptr. 368.) But "[i]t is not our province to rewrite statutory enactments to reach what might be considered a more rational result." (Huening v. Eu (1991) 231 Cal.App.3d 766, 779, 282 Cal.Rptr. 664.) Also, "[t]he meaning of a statute may not be determined from a single word or sentence; the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible." (Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 659, 25 Cal.Rptr.2d 109, 863 P.2d 179.)

Our disagreement with St. Paul Fire & Marine, supra, is fundamentally this. That case looks at the language of the first clause of subdivision (m) saying that a party "may withdraw or amend an admission made in response to a request for admission." ³ It reasons that when a party served with a request for admissions does not respond to that request, there can be no "admission made in response to a request for admission" because there is no "response." This reading of subdivision (m) appears to us, however, to render subdivision (m) out of harmony with subdivisions (k) and (n) of the statute. ⁴ Subdivision (k) requires the court, under certain circumstances, to issue "an order that ... the truth of any matters specified in the requests be deemed admitted...." What does this mean? We think the only...