Murty v. Arroyo

Filed 3/5/07 Murty v. Arroyo CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Luis R. Vargas, Judge. Affirmed.

In this personal injury action, plaintiff Sweeli Han Murty contends the trial court improperly denied her motion for cost-of-proof sanctions against defendant Javier Sanchez Arroyo, Jr., after he stated in responses to requests for admissions (RFA's) that he lacked personal knowledge and thus could not admit or deny whether she complained of pain after the accident, was bruised or otherwise injured in the accident or reasonably incurred expenses to treat the injuries. Murty concedes Arroyo lacked personal knowledge, but she asserts he should have admitted the RFA's based on her discovery responses and the report of the defense medical expert, which was rendered after he responded to the RFA's. We find no abuse of discretion and affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

In May 2003 Arroyo's semi-tractor trailer collided with Murty's car. This lawsuit ensued.

During discovery, Murty propounded RFA's to Arroyo, including the following ones at issue here: "9. After the [collision], [Murty] complained of neck and back pain. [] 10. After the [collision], [Murty] had a visible abrasion and bruising on her left collarbone caused by the accident. [] 11. The collision caused bodily injury to [Murty]. [] 12. Plaintiff [Murty] has incurred obligations for medical care expenses reasonably required in the treatment of her injuries."

Arroyo initially denied the RFA's on the grounds the information Murty sought was outside his personal knowledge and equally available to her. He also asserted RFA Nos. 10 through 12 called for a professional opinion from a lay witness, and thus they were "oppressive, harassing, and without a foundational showing of competence."

On May 16, 2005, after Murty objected to Arroyo's responses, Arroyo provided verified supplemental responses that stated he was "[u]nable to admit or deny" RFA Nos. 9 through 12. In response to RFA Nos. 9 and 10, he added that he lacked personal knowledge because he did not speak to or observe Murty after the accident. In response to RFA No. 11, he added he "does not have personal knowledge of bodily injury caused to Plaintiff," and in response to RFA No. 12, he added he "does not have personal knowledge of the medical care expenses reasonably required in the treatment of Plaintiff's injuries."

On June 2, 2005, Murty saw Arroyo's medical expert, William E. Bowman, M.D., an orthopedic surgeon, for an evaluation. She then complained of right neck and right shoulder tingling and right arm pain. She also reported she had a seatbelt abrasion over her left shoulder after the accident, and she had seen a physical therapist approximately 30 times. Further, in approximately 2000 she suffered an injury on a roller coaster and had left neck and left shoulder pain.

In his report, Dr. Bowen stated he believed the collision caused a soft tissue injury to Murty's neck and upper back; an MRI she had was reasonably necessary and showed minimal disk bulging that, despite her young age, could be consistent with the aging process of the cervical spine; a course of physical therapy or chiropractic care was reasonably necessary at a cost of $2,500 to $3,000; and "there does not appear to be a frank disc herniation nor anything to explain the numbness in her arm." Dr. Bowen recommended an active exercise program and predicted no permanent disability.

At trial Dr. Bowen essentially testified in accordance with his report. In closing argument, Arroyo conceded Murty suffered soft tissue injuries to her neck as a result of the accident, and "[f]rom the date of the accident this has been a soft tissue case." Arroyo advised the jury "the only disagreement is over the amount of money that you will award . . . Murty," and three items were at issue: future treatment, pain and suffering, and wage loss. Arroyo argued the jury should award Murty $12,000.

The jury awarded Murty $81,000, and after the entry of judgment she moved for $72,965.98 in attorney fees and other costs incurred in proving the facts set forth in RFA Nos. 9 through 12. The court denied the motion on the ground Arroyo "had a good reason to fail to admit" them. The court explained: "For example, Requests for Admission No. 9 stated 'After the [collision], [Murty] complained of neck and back pain.' According to the moving papers, [Arroyo] had no contact with [Murty] after the collision. While [Arroyo] is required to investigate facts within the purview of [his] knowledge, [he] is not required to admit [Murty]'s contentions and allegations, especially where causation is contested at trial."

DISCUSSION

I

"Any party may obtain discovery . . . by a written request that any other party to the action admit . . . the truth of specified matters of fact. . . . A request for admission may relate to a matter that is in controversy between the parties." (Code Civ. Proc.^[1],  2033.010.) " 'It is well established that although the principal aim of discovery procedures in general is to assist counsel to prepare for trial, requests for admissions are conceived for the purpose of setting to rest triable issues in the interest of expediting trial.' " (Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618, 634 (Wimberly).)

The "cost-of-proof sanction is designed to compensate for unnecessary expenses

resulting from proving matters unreasonably denied." (Weil & Brown, Cal. Practice Guide: Civil Proc. Before Trial (The Rutter Group 2005) 8:1405, p. 8G-36.) " 'Where certain facts exist which the responding party does not intend to contest at trial, the proper time to admit and permit those facts to be established is during pretrial

discovery.' " (Wimberly, supra, 56 Cal.App.4th at p. 634.)

Accordingly, section 2033.420, subdivision (a), provides: "If a party fails to admit . . . the truth of any matter when requested to do so under this chapter, and if the party requesting that admission thereafter proves . . . the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees." Under subdivision (b) of section 2033.420, the "court shall make this order unless it finds any of the following: [] (1) An objection to the request was sustained or a response to it was waived under Section 2033.290. [] (2) The admission sought was of no substantial importance. [] (3) The party failing to make the admission had reasonable ground to believe that the party would prevail on the matter. [] (4) There was other good reason for the failure to admit."

"The determination of whether a party is entitled to expenses under section 2033, subdivision (o) is within the sound discretion of the trial court." (Wimberly, supra, 56 Cal.App.4th at p. 637, fn. 10; American Federation of State, County and Municipal Employees v. Metropolitan Water Dist. of Southern California (2005) 126 Cal.App.4th 247, 267; Stull v. Sparrow (2001) 92 Cal.App.4th 860, 864; Brooks v. American Broadcasting Co. (1986) 179 Cal.App.3d 500, 508 (Brooks).) " 'On appeal, the trial court's decision will not be reversed unless the appellant demonstrates that the lower court abused its discretion.' [Citation.] '[O]ne of the essential attributes of abuse of discretion is that it must clearly appear to effect injustice.' " (Wimberly, supra, 56 Cal.App.4th at p. 637, fn. 10.)^[2]

II

Murty concedes Arroyo had no personal knowledge of whether she complained of pain after the accident, was bruised or otherwise injured in the accident or reasonably incurred medical expenses for the treatment of injuries incurred in the accident. She contends, however, that he should have admitted the RFA's based on her responses to his discovery requests. She asserts he "had already received [her] discovery responses with photos of her injuries and copies of her medical bills. While a party does not have to accept an opponent's version of the facts provided in discovery, he cannot just ignore the facts stated in that discovery in the hope that he will thereby avoid sanctions. This is not only common sense, it is the law."

The discovery response issue is not subject to our review, however, because the appellate record does not contain any of her discovery responses or documents produced.

It is, of course, the appellant's burden to provide a sufficient record on appeal. "[I]t is

settled that: 'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' " (Denham v. Superior Court of Los Angeles County (1970) 2 Cal.3d 557, 564.)

Murty cites no law for the proposition a plaintiff's discovery responses supply a defendant with "knowledge" of facts he or she must admit in response to RFA's or risk liability for costs of proof. Parties are required to include citation to authority in their briefs, and the absence of that necessary element allows us to treat the issue as waived. (Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448.)

Murty relies on Brooks, supra, 179 Cal.App.3d at page 510, which explains that generally a party who lacks personal knowledge risks cost-of-proof sanctions unless he or she undertakes a reasonable investigation to ascertain facts from "available sources." In Brooks, the plaintiff denied a request for admission that "his truck was zero to two feet over the centerline of the road." (Id. at p. 511.) The court affirmed cost-of-proof sanctions against the plaintiff, noting the request was of substantial importance, and his denial was unreasonable because he had access to a highway patrol report that concluded his truck had to have been over the centerline based on tire marks. (Id. at pp. 511-512.) Brooks does not suggest that a plaintiff's claims in discovery responses are an available source of information for the admission of facts. Murty agrees a party need not accept an opponent's version of the facts provided in discovery, but admitting facts based on discovery responses would be doing just that.

We agree with the trial court that Arroyo had good reason not to accept as true Murty's claims in discovery responses.

III

Murty also contends that because of Dr. Bowman's report, Arroyo knew and should have admitted that the collision caused her bodily injury and caused her to incur reasonably necessary medical expenses. Dr. Bowman, however, did not evaluate Murty or issue his report until approximately two weeks after Arroyo provided his supplemental verified responses to the RFA's.

Murty suggests Arroyo had a continuing duty to amend his responses to reflect later-acquired evidence. She relies on the following language from Brooks, supra, 179 Cal.App.3d at pages 510-511: "The degree to which the party making the denial has attempted in good faith to reach a reasonable resolution of the matters involved is also an appropriate factor to be weighed. . . . [] Sometimes a party justifiably denies a request for admission based upon the information available at the time of the denial, but later learns of additional facts or acquires information which would have called for the request to be admitted if the information had been known at the time of the denial. If such a party thereafter advises the party that propounded the request for admission that the denial was in error or should be modified, a court should consider this factor in assessing whether there were no good reasons for the denial. (See Garrisonv.WarnerBros.Pictures (9th Cir. 1955) 226 F.2d 354, 356.) On the other hand, if a party in such circumstances stands on the initial denial and then fails to contest the issue at trial, a court would be well justified in finding that there had been no good reasons for the denial, thus mandating the imposition of sanctions."

However, at Brooks, supra, 179 Cal.App.3d 500, 511, footnote 7, which immediately follows the above quote, the court explained: "Unlike the Federal Rules of Civil Procedure, the question of the duty to supplement discovery requests in California is still open [citation], as is the issue of a court's authority to permit modification of a response to a request for admission. [Citation.] As we have already noted, the primary purpose of requests for admissions is to expedite trial. In view of that purpose, we are aware of nothing which should preclude a court from permitting a party to modify a previous response to a request for admission, particularly if the modification will expedite trial. However, we leave resolution of that issue for a future case."

The Legislature has now amended the Code of Civil Procedure to allow the withdrawal or amendment of admissions made in response to RFA's, but only on noticed motion and a showing of mistake, inadvertence, or excusable neglect, and lack of prejudice to the propounding party. ( 2033.300, subd. (b).) Section 2033.300, however, does not apply to the amendment of responses other than admissions.

Although the Code of Civil Procedure expressly bans a party from propounding continuing interrogatories ( 2030.060, subd. (g)^[3]), it does not expressly ban a party from propounding continuing RFA's. On the other hand, "[n]othing in the text of the statute creates any ongoing duty to update responses." (Burch v. Gombos (2000) 82 Cal.App.4th 352, 359.) According to a well-known commentator, "it is an open question whether continuing [requests for admissions] are permissible." (Flahavan et al., Cal. Practice Guide: Personal Injury (The Rutter Group 2006)  6:260.2.)

In Burch v. Gombos, supra, 82 Cal.App.4th at page 356, the plaintiff admitted a request for admission that " 'you have no evidence of recreational use of the disputed portion of the Summit Road prior to March 4, 1972.' " Later, the plaintiff obtained evidence of public recreational use of the road in the 1950's and 1960's, and at trial the defendants sought to exclude the evidence on the ground the plaintiff had a duty to amend or withdraw the admission on learning evidence of the public use. The court disagreed, noting the request for admission sought "present tense" information, and the answer when given was truthful. (Id. at p. 359.) The court explained, "It was still true at the time of trial (and it will always be true) that in April of 1997 Redwood Empire had no evidence of pre-1972 recreational use of the road. Thus, there was neither a need nor even an applicable mechanism for Redwood Empire to amend or withdraw its response to the RFA in question." (Id. at p. 359.)

In Burch v. Gombos, supra, 82 Cal.App.4th 325, 360, footnote 9, the court expressed no opinion on whether continuing requests for admissions are permitted. The court concluded, however, that the "fact that the RFA in issue did not purport to be a continuing RFA . . . is a further reason Redwood Empire had no duty to update its response." (Ibid.) We agree with the Burch v. Gombos approach that to any extent the Code of Civil Procedure permits continuing RFA's, if a party seeks them he or she must say so. To any extent Brooks implies that a party has an affirmative duty to update responses absent any request for continuing RFA's, we disagree.

Arroyo's responses to the RFA's were correct when he made them, and the court appropriately exercised its discretion by finding he had good reason not to make admissions. Murty did not ask him for supplemental responses to reflect any later-acquired information, and thus he could not have had a duty to amend his responses in light of Dr. Bowen's report. Rather, if Murty sought admissions based on the report it was her burden to propound additional requests for admissions on Arroyo.^[4]

DISPOSITION

The order is affirmed. Arroyo is entitled to costs on appeal.

McCONNELL, P. J.

WE CONCUR:

McDONALD, J.

McINTYRE, J.

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^[1] Statutory references are to the Code of Civil Procedure except when otherwise specified.

^[2] Murty contends an independent standard of review applies because the facts are undisputed and the issues are ones of law. She has not, however, cited any opinion in which the court applied an independent standard in reviewing an order on a motion for cost-of-proof sanctions. Although there is no dispute as to Arroyo's responses to the RFA's or to the content of Dr. Bowen's report, the question of whether Arroyo had good cause not to admit the RFA's is a factual matter within the trial court's discretion.

^[3] Section 2030.060, subdivision (g) provides: "An interrogatory may not be made a continuing one so as to impose on the party responding to it a duty to supplement an answer to it that was initially correct and complete with later acquired information."

^[4] Murty sent Arroyo 16 requests for admissions. Without leave of court, a party may make a total of 35 admission requests in one or more sets. ( 2033.030, subd. (a).)

Given our holding, we do not consider Arroyo's contentions that RFA Nos. 9 and 10 were of "no substantial importance" within the meaning of section 2033.420, subdivision (b)(2); a response that a party cannot admit or deny an RFA is not a failure to admit that may subject a party to cost-of-proof sanctions; Murty was not entitled to sanctions based on his response to RFA No. 10 because she did not prove she was bruised after the accident; and sanctions are inappropriate because admissions would not have expedited trial.