Author: Lewis

At Lewis & Llewellyn, we practice in state and federal courts throughout the country. Attorneys who practice in federal court in Southern California – specifically the Central District of California – should be aware of new local civil rules that took effect on June 1, 2014.  The amended rules chiefly concern, among other things: (i) mandatory chambers copies for all pleadings filed electronically with the court; (ii) formatting for Supreme Court case citations in briefs, and (iii) additional sanctions on attorneys and parties for failure to follow local rules.

These seemingly picayune details can often determine whether a court grants or denies a critical motion.

Until recently, a litigant filing a motion in San Francisco Superior Court could simply notice the hearing for a date of his or her choosing, so long as it complied with the statutory minimum of 16 court days’ notice.  However, an amendment to local rule 8.2 requires the moving party to obtain a hearing date and reservation number by sending an email in advance to the Court.  After obtaining the hearing date, the moving party must file the motion within 24 hours.  The Court is setting limits on the number of matters to be heard each day to better manage the calendar.  In light of the new rule, the practitioner would be well advised to plan in advance and not leave the filing of motions to the last possible day.

Many California attorneys likely assume that you can use denials to requests for admission as admissible trial evidence.  Plaintiff’s counsel in Gonsalvez v. Li, 2015 WL 164606 (Cal. Ct. App. Jan. 13, 2015) made the assumption, and it cost him a jury verdict of more that $1.2 million.

In a recent decision by the California Court of Appeal, the Court held that California’s discovery statutes do not permit use of a party’s denial or lack of admission in response to a request for admission as evidence at trial.  Gonsalvez, 2015 WL 164606 at *7.  In Gonsalvez, a BMW salesman, Kenneth Gonsalvez, sued defendant Ran Li after Li caused an accident during a BMW test drive, resulting in extensive injuries to Gonsalvez.  At trial, plaintiff’s counsel questioned Li about his qualified denials to various requests for admission, including a request that he admit that he was “driving too fast for the conditions.”  Plaintiff’s counsel, over defense counsel’s objections, again cited to Li’s qualified denials in his closing argument, and the jury returned a verdict of more than $1.2 million in Gonsalvez’s favor.

On appeal, Li’s counsel argued that the trial court erred in permitting plaintiff’s counsel to examine Li about his negative responses to Gonsalvez’s requests for admission.  The Court agreed with Li’s counsel, vacating the judgment and remanding the case to the trial court.  After noting a “surprising paucity of relevant authority” on the topic, the Court highlighted that the relevant discovery statues only explicitly “provide that admissions in response to RFA’s are binding on the party at trial.” Id at *5 (emphasis in original); see also Cal. Civ. Proc. Code section 2033.410.  Based on this language, and an analysis of authority in other jurisdictions, the Court ultimately held that “denials of RFA’s are not admissible evidence in an ordinary case, i.e., a case where a party’s litigation conduct is not directly in issue.”  Gonsalvez, 2015 WL 164606 at *7.

This case serves as an important reminder to litigators to flush out denials to requests for admission before trial.  Whether through special interrogatories, depositions, or even meet and confer correspondence, litigators should be sure to get to the bottom of RFA denials before it is too late.

Here at Lewis & Llewellyn, we frequently handle subpoena issuance and compliance in federal court, particularly for our Fortune 500 clients in the technology and financial sectors.  Effective December 1, 2013, Congress has made significant changes to federal subpoena practice.
Among other things:

• All subpoenas will now issue from the court where the case is pending, rather than the court where compliance is required.  Rule 45(a)(2).
• New Rule 45(a)(4) clarifies that before a “documents only” subpoena is served on the witness, notice and a copy of the subpoena must be served on all parties.
• The territorial limitations on subpoenas issued to non-party witnesses have been made more explicit.
• New territorial limitations have been placed on subpoenas issued to parties and party officers.
• Motions to quash will now presumptively be heard in the court for the district where compliance is required.

As most litigators know, e-filing has been commonplace in the Federal Courts for years.  However, the California Superior Courts have been slower to adopt this practice.  Recently, the San Francisco Superior Court has published Proposed Local Rules that, if adopted, may require attorneys to electronically file and serve nearly all civil pleadings effective January 1, 2014.

The proposed rule changes increase significantly the types of cases designated for mandatory e-filing including lawsuits involving breach of contract, business torts, personal injury and unfair competition.  Note, however, that self-represented parties and non-parties are exempt from the proposed e-filing requirements, and would still have to be served conventionally.