RFA Denials Are Not Fair Game for Cross-Exam

Gonsalves v. Li, No. A140284 (D1d5 Jan. 13, 2015).

Defendant in this case crashed a BMW M3 during a test drive, injuring the car salesman who was riding along. Most of the opinion—which addresses various evidentiary, jury misconduct, and attorney misconduct issues—is unpublished. But the court does publish on two related issues: Are denials of requests for admission admissible evidence at trial and it is permissible to question a party about these denials during examination? The court says no to both.

During trial, plaintiff called defendant as an adverse witness under Evidence Code § 776. Plaintiff’s lawyer aggressively questioned defendant about various lawyerly non-admissions contained in his RFA responses. And then plaintiff stridently argued at closing that the mealy denials called defendant's credibility into question, suggesting that the jury needed to make defendant take responsibility. The judge let the denials come into evidence, over objections, permitted the examination, and denied a new trial motion arguing improper argument.

Under the Discovery Act, any part of a deposition or interrogatory response is generally admissible as trial evidence. Cal. Code Civ. Proc. §§ 2025.620, 2030.410. But that’s not true when it comes to RFAs, for which only admissions are admissible. § 2033.410.

And as to questioning witnesses about denials, the court agrees that the situation is generally analogous to Rifkind v. Superior Court, 22 Cal. App. 4th 1255 (1994)—a key case that every California lawyer defending a depo should know. Rifkind says that you can’t ask a party-deponent (even the person most qualified testifying for an organization) questions about the nature of and evidence in support of that party’s legal contentions. Such questioning is unfair in that it addresses application of law to fact issues generally in the sole purview of counsel. That information is thus properly obtained through interrogatory, where counsel have the ability to participate and the time to contemplate to avoid a “gotcha” response to a complicated question with legal implications. 

RFA responses are similar. An RFA denial is not a statement of fact. It is merely a failure to admit, which potentially has consequences independent of discovery. See § 2033.420(a) (permitting fee awards as sanction for unreasonable denial of RFA). To permit cross-examination of a party witness about the basis for a denial entails questioning about the application of law to fact that, much like contention questioning, is similarly unfair to a lay witness.


Reversed and remanded.