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28 verdict Volume 1 2015 In a matter of first impression in California an appellate court has concluded that a party to litigation cannot use another partys denial of Request for Admissions as impeachment at trial. On January 13 2015 in Gonsalves v. Li 2015 WL164606 the First District Court of Appeal overturned a 1.2 million jury verdict after the plaintiffs attorney repeatedly examined the defendant over his denials of admission requests that had been propounded in the case. In Gonsalves plaintiff Kenneth Gonsalves worked as a sales consultant at a BMW dealership. He filed an action against Ran Li and Xiaoming Li after Ran Li lost control of a BMW that he was test-driving with Gonsalves and Xiaoming Li as passengers. After Ran Li turned onto a freeway on-ramp he lost control of the vehicle causing it to spin into a guardrail. Gonsalves sued Ran Li for motor vehicle negligence and sued Rans father Xiaoming Li for negligent supervision. Xiaoming was later dismissed from the action. Ran denied liability and claimed that he lost control of the vehicle when Gonsalves told him to hit the M button in the vehicle so that he could experience the vehicles full potential. Gonsalves claimed significant injuries as a result of the accident. During the litigation Gonsalves propounded Requests for Admissions including requests that Ran Li admit that Trial Evidence Limitations Imposed on Request for Admission Denials by Craig A. Roeb Esq. and Grace A. Nguyen Esq. he was driving too fast and that his pressure on the accelerator was a substantial factor in causing the accident. Ran Li denied these requests on grounds that he lacked sufficient information to admit or deny these specific facts. At trial on cross-examination Gonsalves counsel extensively questioned Li on his failure to admit the Requests for Admission. Objections by defense counsel that the questions were argumentative were overruled. During closing arguments Gonsalves counsel commented on Lis responses and urged the jury to consider the fact that Li failed to admit these facts when considering liability. The jury awarded Gonsalves in excess of 1.2 million. Requests for Admissions are an underutilized discovery tool that can assist a party in establishing admissible evidence that can be used both at trial and often in summary judgment motions. Requests for Admissions can be used to establish the truth of certain facts the genuineness of documents and a partys opinion on a particular matter. Under California Code of Civil Procedure Section 2033.410 a fact admitted in response to a Request for Admission is conclusively established against the party making the admission. The primary purposes of Requests for Admissions are to expedite trial and eliminate the need to prove certain matters at trial. Thus the proverbial carrot and stick for parties to consider propounding carefully crafted admission requests given risk of failing to admit that which inevitably must be conceded especially given the attorney fees sanction available to the party forced to prove an unreasonably denied admission request. See Garcia v. Hyster Co. 1994 28 Cal.App.4th 724 736-737 the statute authorizes only those expenses ... proving the matters denied by the opposing party. Specifically if a party unreasonably fails to admit the fact and the truth of that matter is later determined by the requesting party the requesting party can seek an order requiring the non-admitting party to pay the reasonable expenses in proving that fact. C.C.P. 2033.420 fee shifting not appropriate when the party failing to make the admission had reasonable ground to believe that that party would prevail on the matter see Brooks v. American Broadcasting Co. 1986 179 Cal.App.3d 500 511 accord Hillman v. Stults 1968 263 Cal.App.2d 848 886 Chodos v. Superior Court 1963 215 Cal.App.2d 318 324 . The trial court can award costs incurred in proving non-admitted matters not only if it finds the responding party did not have substantial justification in denying the particular request but also if the responding party failed to make a reasonable investigation into the matter at issue. Smith v. Circle P. Ranch Co. Inc. 1978 87 Cal.App.3d 267. While this does not mean continued on page 29