Appleton v. Superior Court

California Court of Appeal Dec 14, 1988 No. C005207Published

Before: Carr

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Holding. Under Code of Civil Procedure section 2033, subdivision (k), the imposition of monetary sanctions is mandatory when a party's failure to serve a timely or verified response to requests for admission necessitates a motion to have those requests deemed admitted.

Issues

Whether the trial court has discretion to deny sanctions when granting a motion to have requests for admission deemed admitted under Code of Civil Procedure section 2033, subdivision (k).
Whether unverified responses to requests for admission constitute a failure to respond, thereby triggering the mandatory sanction provision of section 2033, subdivision (k).

Disposition. remanded

Quotations verified verbatim against the opinion

“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.”

“Unsworn responses are tantamount to no responses at all.”

“It follows that only subdivision (k) was applicable and it mandates sanctions.”

Opinion

CARR, Acting P. J.

Petitioner A. Jonathon Appleton (Appleton) seeks a writ of mandate directing respondent superior court to grant his request for sanctions, based on his contention that under the new discovery act sanctions are mandatory upon the granting of a motion to have requests for admission deemed admitted. We agree and shall order the writ to issue.

Real parties in interest Edward and Janet Cook (Cook) were the insureds under a policy issued by defendant Insurance Company of North America (INA) in 1985. This is an action against INA and Appleton for fraud in connection with the sale of that policy.

In March 1988, Appleton served upon Cook a set of three requests for admission which referred to allegations of the first amended complaint.

[634]

Because of an intervening amendment to the complaint, Cook objected but did provide a single purported answer to all three requests. However, this response was not verified.

After unsuccessful attempts to obtain more complete answers and a verification, Appleton moved to have the requests deemed admitted and for sanctions pursuant to Code of Civil Procedure section 2033, subdivision (k).

The trial court ordered that Appleton’s requests be deemed admitted but denied sanctions.

After Appleton filed the instant petition, we notified the parties that we were considering the issuance of a peremptory writ of mandate and invited opposition. Other than Cook’s preliminary opposition, nothing has been filed.

Review of a discovery order by extraordinary writ is appropriate where the order involves a significant issue.

(Holm

Superior Court

(1986) 187 Cal.App.3d 1241, 1244 [232 Cal.Rptr. 432].) The petition herein seeks interpretation of a provision of the new discovery act, a matter of first impression. Mandate is appropriate where no legal justification exists for a trial court’s exercise of discretion. (See

Appleton v. Superior Court

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