Costs of Proof Awarded for Needlessly Denied RFAs

Vargas v. Gallizzi, B317540 (D2d7 Oct. 13, 2023)

This is an appeal after a re-trial of damages in an auto injury case. In the first trial, the court excluded a bunch of medical records because the Plaintiffs didn’t obtain detailed enough business records foundation declarations and failed to have sealed envelopes containing the records delivered to the court under Evidence Code § 1560(b)-(d).* 

To avoid that rigamarole on retrial, Plaintiffs served requests for admissions, asking that the Defendant admit that the records were authentic and business records, subject to the business records exception of the hearsay rule. Defendants admitted the former, but not the latter. Defendants also denied some RFAs on the timeline of their treatment and causation. In a pretrial ruling, the Court ultimately ruled for plaintiff that the documents were authentic and within the business records exception. Defendant did not further object to the admissibility of the records at trial. 

After Plaintiffs won a somewhat meager damages award, they moved for costs of proof under Code of Civil Procedure § 2033.420. The court denied the award because the business records exception had not been proven “at trial,” and because the proof of causation and treatment did not require proof that was marginally greater than what Plaintiffs put on to prove their damages. Plaintiffs appealed.

As the Court of Appeal explains, § 2033.420(a) awards costs of proof when an RFA is denied and the propounding party “proves the genuineness of that document or the truth of that matter.” It doesn’t say that the proof needs to happen at a trial. Nor did Defendants satisfy the exception for when the respondent “had ground to believe that party would prevail on the matter.” § 2033.420(b)(3). Defendant’s only proof on that point is that she thought that Plaintiffs might screw up the process again so she wasn’t inclined to stipulate it away. That, however, is not a reasonable basis to believe that the documents were not actually business records. So the trial court erred in denying costs of proof for the business records RFAs. 

And since the business records were the proof of treatment and causation, the court’s denial of fees on those points was harmless.

Reversed and remanded.

*Section 1560 of The Evidence Code contains a 70-year old procedure for third parties to produce documents in response to a business records subpoena. Copies of the responsive records, along with the business records declaration under Evidence Code § 1651, are sealed in an inner envelope with the case title, number, witness name and subpoena date written on it. Then that envelope is sealed in an outer envelope addressed to the court clerk or deposition officer. The envelope, then, is opened only at the trial or deposition, in the presence of all parties or their counsel. The point of this is to maintain the chain of custody of the documents. 

In nearly 20 years of practicing law in California, I don’t think I’ve ever seen this done. Indeed, outside of very rare situations, I’ve basically never made or received a hardcopy production of documents. Maybe things might still work the old way in PI cases with medical records. (Medicine’s adaptation of digital technology seems to be twenty years behind the already pathetic state of technology in the legal industry.) 

But it would be nice if the code tried to adapt to modern practice a bit. Like, if the producing party places unique numbering on copies of the records to be produced, references that numbering scheme in a Evidence Code § 1561 business records declaration, and then transmits the records in a digital file to the appropriate recipient, the contents of that file are presumed to be the authentic business records of the subpoenaed party. That’s basically the way things work nowadays even in the absence of a rule.

Voluminous Hearsay . . .

Golden State Coring & Pipe Jacking Inc. v. E. Muni. Water Dist., No E054618 (D4d2 July 23, 2104)

This is an appeal of an order granting summary judgment in a construction dispute. It turns on whether there were stoppages of work. In support of its motion, defendants provided a declaration from their attorney, who purported to summarize voluminous records produced in discovery, to the effect that such stoppages did, in fact, occur. The court here finds that sufficient because Evidence Code § 1523(d) permits oral testimony of the contents of writings if “the writing consists of numerous accounts for other writings that cannot be examined in court without great loss of time, and the evidence sought from them is only the general result of the whole.” Further, because the plaintiff did not actually contest that the stoppages happened, even if it was error to admit this evidence, there was no prejudice meriting reversal.

Justice King dissents. He makes the point—well borne out in the case law—that while § 1523(d) might provide a vehicle for secondary proof of the contents of voluminous records, it does not permit an end run around the hearsay rule. If records being summarized are inadmissible hearsay, they are not rendered admissible by summarizing them. So if a party wants to prove the truth of contents of documents that are being summarized, it must also lay foundation that the records themselves are not hearsay or subject to an exception. The most common exception is business records. Because the declaration in this case did not lay that foundation, and because the defendant didn’t otherwise provide foundational evidence that the exception applied—such as a custodian of records declaration under § 1561—the summaries weren’t admissible even if they satisfied the secondary evidence rule. 
 
Affirmed.