California requests for admission: 35 without a declaration, and the one discovery device that can end a case

Requests for admission are not really discovery. Every other device asks what the other side knows; this one asks them to give up an issue. CCP 2033.410(a) makes an admission conclusively established in the action, and CCP 2033.420 makes a wrong denial cost money. That combination gives the device more force than its page count suggests.

Thirty-five, unless you sign a declaration

CCP 2033.030(a):

No party shall request, as a matter of right, that any other party admit more than 35 matters that do not relate to the genuineness of documents. If the initial set of admission requests does not exhaust this limit, the balance may be requested in subsequent sets.

Two things follow.

Requests to admit the genuineness of documents are not counted, and not capped. CCP 2033.030(c) limits them only "as justice requires to protect the responding party from unwarranted annoyance, embarrassment, oppression, or undue burden and expense." You can authenticate a hundred documents without touching the 35.

Over the limit, you attach a declaration. CCP 2033.050 sets out the exact text of the Declaration for Additional Discovery, and CCP 2033.040(a) allows a greater number "if the greater number is warranted by the complexity or the quantity of the existing and potential issues in the particular case."

If the responding party then moves for a protective order on the ground that the number is unwarranted, CCP 2033.040(b) puts the burden of justifying the number on the propounding party. The declaration gets you served; it does not get you home.

And if you go over without a declaration: CCP 2033.030(b) says the responding party "need only respond to the first 35 admission requests," so long as that party objects to the balance under CCP 2033.230 on the ground that the limit has been exceeded. The objection is required — silence forfeits the point.

Format rules that are enforced

CCP 2033.060 is a list of drafting requirements, and several of them are the basis of routine objections:

• Sets are numbered consecutively, with the propounding party, set number and responding party identified immediately below the case title.
• Each request is separately set forth and identified by letter or number.
• Each request must be "full and complete in and of itself." No preface or instruction unless approved under CCP 2033.710 and following.
• Any specially defined term is typed in all capitals wherever it appears.
• No subparts, and no compound, conjunctive or disjunctive request, absent the same approval.
• Requests to admit genuineness must attach copies of the documents, and the originals must be made available for inspection on demand.
• "No party shall combine in a single document requests for admission with any other method of discovery." — CCP 2033.060(h).

That last one catches people who serve one omnibus set of "Requests for Admission, Form Interrogatories and Requests for Production." Washington has the same rule at CR 36(a); most states do not.

When you can serve them

A defendant: at any time, without leave — CCP 2033.020(a).

A plaintiff: at any time that is 10 days after service of the summons on, or appearance by, that party, whichever occurs first — CCP 2033.020(b). The same 10 days applies in an unlawful detainer action under subdivision (c), and the court may allow an earlier time for good cause under subdivision (d).

Ten days is much shorter than the 20-day hold for depositions.

Thirty days to respond — five in an unlawful detainer

CCP 2033.250(a): within 30 days after service of the requests, the responding party serves the original response on the requesting party and a copy on all other appearing parties, unless the court has shortened or extended the time on motion.

CCP 2033.250(b): in an unlawful detainer action, the responding party "shall have at least five days from the date of service to respond."

Extensions by agreement — CCP 2033.260. The parties may agree to extend. The agreement "may be informal, but it shall be confirmed in a writing that specifies the extended date." Unless it expressly says otherwise, the agreement preserves the right to respond in any manner — meaning objections survive. Notice of the agreement goes to all other parties who were served with a copy of the requests, and it is the responding party who gives that notice.

Get the extension in writing, and specify the date. An unconfirmed oral extension is the setup for a waiver argument.

What a response has to say

CCP 2033.220(a): each answer must be "as complete and straightforward as the information reasonably available to the responding party permits." Each answer must:

(1) Admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party. (2) Deny so much of the matter involved in the request as is untrue. (3) Specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge.

And if you use (3), CCP 2033.220(c) requires you to state in the answer that a reasonable inquiry has been made and that the information known or readily obtainable is insufficient. A bare "unable to admit or deny" does not comply.

Signatures — CCP 2033.240: the party signs under oath unless the response contains only objections; an entity signs through an officer or agent; the attorney signs any response containing an objection. If an attorney signs on behalf of an entity, that party waives lawyer-client privilege and work product protection as to discovery from that attorney about the sources of the information.

Not filed — CCP 2033.270: neither the requests nor the responses go to the court. The propounding party keeps the originals, with proof of service, until six months after final disposition.

Missing the deadline: what actually happens

This is where California differs sharply from most states, in both directions.

You do not admit automatically. In Washington, Oregon, Georgia and the federal system, an unanswered request is admitted by operation of the rule. In California, CCP 2033.280(b) requires the requesting party to move for an order that the matters be deemed admitted.

But you do waive objections immediately. CCP 2033.280(a): the responding party "waives any objection to the requests, including one based on privilege or on the protection for work product." Relief from that waiver requires a motion, and both conditions in the statute — a subsequent response in substantial compliance, and a failure that was the result of mistake, inadvertence or excusable neglect.

The escape hatch closes at the hearing. CCP 2033.280(c): the court "shall make this order, unless it finds that the party … has served, before the hearing on the motion, a proposed response … that is in substantial compliance with Section 2033.220."

So a late responder who serves a compliant response before the hearing defeats the deemed-admitted motion. One who waits until after the hearing does not. This is the single most consequential deadline in California discovery, and it is not the 30-day one.

The sanction is mandatory either way. The same subdivision: "It is mandatory that the court impose a monetary sanction … on the party or attorney, or both, whose failure to serve a timely response … necessitated this motion." Serving late but before the hearing saves the admissions. It does not save the sanction.

Compelling a further response — 45 days

CCP 2033.290(a) allows a motion to compel a further response where an answer is evasive or incomplete, or an objection is without merit or too general.

The deadline is jurisdictional in effect. CCP 2033.290(c): unless notice of the motion is given "within 45 days of the service of the verified response, or any supplemental verified response, or any specific later date to which the parties have agreed in writing," the requesting party waives the right to compel further response.

Note "verified." An unverified response does not start the 45 days — which is why a response signed only by counsel, containing answers as well as objections, leaves the clock unstarted.

The motion needs a meet and confer declaration under CCP 2016.040. And CCP 2033.290(b)(2) allows the court, in lieu of the separate statement the California Rules of Court would otherwise require, to accept "a concise outline of the discovery request and each response in dispute."

Sanctions under CCP 2033.290(d) run against whoever "unsuccessfully makes or opposes" the motion, absent substantial justification.

If a party then disobeys an order compelling a further response, CCP 2033.290(e) lets the court deem the matters admitted — the same result, reached the long way.

Cost-of-proof sanctions

The provision that gives requests for admission their weight is CCP 2033.420(a):

If a party fails to admit the genuineness of any document or the truth of any matter when requested to do so … and if the party requesting that admission thereafter proves the genuineness of that document or the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees.

"The court shall make this order" unless one of four findings in CCP 2033.420(b) applies:

1. an objection to the request was sustained or a response waived under CCP 2033.290;
2. the admission sought was of no substantial importance;
3. the party failing to admit had reasonable ground to believe that party would prevail on the matter;
4. there was other good reason for the failure to admit.

The exceptions are real, particularly the third. But the default is that a denial you cannot back up is payable, and the fees run to proving the matter — which in a case that goes to trial can be most of the trial.

Denying everything reflexively is therefore a decision with a price attached.

Getting out of an admission

CCP 2033.300(a): a party may withdraw or amend an admission only on leave of court, after notice to all parties.

Leave requires both findings under subdivision (b): the admission was the result of mistake, inadvertence or excusable neglect, and the party who obtained it will not be substantially prejudiced in maintaining its action or defense on the merits.

The court may impose conditions — additional discovery on the subject of the withdrawn admission, and an order that its costs be borne by the withdrawing party.

The reach of an admission

CCP 2033.410(a): a matter admitted is conclusively established against the admitting party in the pending action, unless withdrawal or amendment is permitted.

CCP 2033.410(b) limits that: the admission is binding only on that party, is made for the pending action only, "is not an admission by that party for any other purpose, and shall not be used in any manner against that party in any other proceeding."

So an admission ends the issue in this case and follows the party nowhere else.

How California compares

A short checklist

Serving them

1. Count your non-document requests. Thirty-five, or attach the CCP 2033.050 declaration.
2. Serve admissions as their own document. CCP 2033.060(h).
3. Attach the documents whose genuineness you want admitted, and keep the originals available.
4. No subparts, no compound requests, defined terms in capitals.
5. Calendar 45 days from the verified response for any motion to compel further.
6. At the end of the case, consider CCP 2033.420 on anything you had to prove that they denied.

Responding to them

1. Calendar 30 days — or five, in an unlawful detainer.
2. Confirm any extension in writing, with a date, and give notice to the other parties.
3. If you cannot admit or deny, say you made a reasonable inquiry. CCP 2033.220(c) requires the statement.
4. If you are already late, serve a compliant response before the hearing. That defeats the deemed-admitted motion, even though the sanction still lands.
5. Deny only what you can defend. Cost-of-proof fees are the point of the device.

Where these sections live

• CCP 2016.040 — Meet and confer declaration
• CCP 2033.030 — Limit of 35 requests
• CCP 2033.050 — Declaration for additional discovery
• CCP 2033.060 — Form of requests
• CCP 2033.220 — Content of answers
• CCP 2033.250 — Time to respond
• CCP 2033.280 — Failure to respond; deemed admitted
• CCP 2033.290 — Motion to compel further response
• CCP 2033.300 — Withdrawal or amendment of an admission
• CCP 2033.410 — Effect of an admission
• CCP 2033.420 — Cost-of-proof sanctions

This page explains what the Code says. It isn't legal advice, and the California Rules of Court add separate-statement and format requirements this site doesn't reproduce.