“Wait a minute, can they impeach my witness with that? And how can I object to it?” These are common questions faced by attorneys in the heat of trial and this article is intended to help provide an answer with regard to a specific type of statement: Denials to Requests for Admission.
Impeachment on Prior Inconsistent Statement
In general, a witness at trial can be impeached when their trial testimony contradicts a prior statement.[i] A witness may be impeached by evidence of a statement the witness made that is inconsistent with any part of his or her testimony.[ii] For example, a defendant may at first deny responsibility for a car accident, but later accept responsibility as trial approaches.
Purpose of Requests for Admission
During discovery, requests for admission are not limited to facts or documents. Legal conclusions, opinions, and legal questions are also fair game.[iii] A common question asked in requests for admission is for a defendant to admit or deny they were at fault for the injuries the plaintiff alleges. This and similar questions are often denied during discovery for a variety of reasons. But can these denials later come back to haunt you at trial, such as when a defendant later admits responsibility for a rear-end accident?
Courts recognize the purpose of requests for admission is different than other discovery devices, such as interrogatories, document demands, and depositions. Despite being included under the Civil Discovery Act, requests for admissions “are not really a discovery procedure” because they do not allow the the parties to gain additional information.[iv] Instead, requests for admission are a “dispute-resolution device that eliminates the time and expense of formal proof at trial” with their primary purpose being aimed at expediting trial.[v]
Only Admissions Are Admissible
At trial, the court may instruct the jury that they must accept as true matters that the party admits in their responses to requests for admission.[vi] However, the jury instruction does not address denials to requests for admission. In fact, denials to requests for admission are not admissible at trial as prior inconsistent statements to impeach a witness’ testimony.[vii] The reasonable defendant who later admits responsibility for the rear-ender can breathe a sigh of relief thanks to precedent established in Victaulic Co. v. American Home Assurance Co. (2018) 20 Cal.App.5th 948 (“Victaulic”). This is particularly helpful as one of the four Nuclear Verdicts® defense methods is to accept responsibility!
In Victaulic, the Court of Appeal held that an insurer’s denials of requests for admissions were not admissible as prior inconsistent statements to impeach the insurance adjuster’s testimony.[viii] The court in Victaulic analogized this type of questioning to improper “legal contention questions” being asked at a deposition that require a lay person to make “law-to-fact” application by memory and on the spot without the ability to consult with their attorney.[ix]
The court in Victaulic relied on Gonsalves v. Li (2015) 232 Cal.App.4th 1406, which involved an automobile accident in which the plaintiff called the defendant as an adverse witness and asked about the defendant’s denials to plaintiff’s requests for admission that defendant was responsible for the accident. In closing argument, plaintiff emphasized the denials were evidence that defendant refused to take responsibility for plaintiff’s injuries and the jury awarded a verdict of over $1.2 million. However, the verdict was reversed with the Court of Appeal holding that it was error for the court to allow questions about the denials to requests for admissions at trial.
In conclusion, do not fear denials to requests for admission coming back to haunt you at trial because only admissions are admissible. If a defendant denies responsibility in their responses to requests for admission, but accepts responsibility before trial, this inconsistency cannot be used to impeach the witness at trial. So, if you as defense counsel find yourself in trial with a clever opposing counsel attempting to use denials as impeachment evidence against your witness, you are on solid legal footing to object.
However, it is important to note while the denials may not be used as impeachment at trial, an unreasonable denial to a request for admission may still be grounds for “cost of proof sanctions” under California Code of Civil Procedure § 2033.420 if the requesting party proves the issue at trial or after motion for summary judgment is granted.
[i] Cal. Evid. Code, § 780
[ii] Cal. Evid. Code, § 780(h)
[iii] California Code of Civil Procedure (CCP) 2033.010
[iv] See City of Glendale v. Marcus Cable Associates, LLC (2015) 235 Cal.App.4th 344, 352; Lieb v. Superior Court of Orange County (1962) 199 Cal.App.2d 364, 367.
[v] See City of Glendale v. Marcus Cable Associates, LLC (2015) 235 Cal.App.4th 344, 353-354.
[vi] See CACI No. 210: Requests for Admission.
[ix] See Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255.