Often underestimated and overlooked in Probate litigation, the California Code of Civil Procedure (the “C.C.P.”) offers probate practitioners several meaningful and effective mechanisms for leveraging a client’s position when faced with contested litigation. By utilizing these valuable tools, practitioners can create various advantages that would elevate their client’s position in settlement negotiations, as well as increase their clients’ recovery of damages, if successful at trial.
Probate Code § 1000(a) states that to “the extent that this code provides applicable rules, the rules of practice applicable to civil actions, including discovery proceedings and proceedings under Title 3a of Part 2 of the Code of Civil Procedure, apply to, and constitute the rules of practice in, proceedings under this code.” Thus, if there is no applicable Probate Code provision, the statutory guidelines of the Code of Civil Procedure apply. However, unlike many of the Probate Code provisions, the Code of Civil Procedure employs strict deadlines and, on occasion, significant repercussions, such that those more familiar with the equitable framework of the Probate Code may be caught off guard. Unfortunately for many probate practitioners, the tools that can be found in the Code of Civil Procedure are too often undervalued and underutilized.
In the investigative stage of a litigation case, one of the most effective tools, for discovery purposes, is to serve a set of Requests for Admissions. These written requests served pursuant to C.C.P. § 2033.010, et seq., ask the responding party to either admit or deny the truth of various statements or to admit to the genuineness of specified documents. This can be useful for practitioners to narrow the scope of various issues pending in a contested probate litigation because any matter admitted in response to a request for admission is deemed to be conclusively established against the party making the admission. (See C.C.P. § 2033.410(a).) Additionally, when paired with Form Interrogatory 17.1, even a denial can lead to the discovery of additional facts and witnesses on which the responding party’s denial is based. Similarly, requesting that a party admit to the genuineness of a specific document may also shortcut potential pitfalls if there is a question as to the validity of certain supporting evidence, for example, if there are questions of fact relating to the validity of signatures on documents or medical records needed to prove claims of lack of capacity.
More importantly, however, while Requests for Admissions are effective on a basic fact-finding level, from a practical standpoint, the more immediate impact can be found in the fact that if a response to the request for admissions is overlooked, the resulting admissions can be fatal to the other side. Under C.C.P. § 2033.280(a-b), if a party fails to timely respond to a request for admission, that party not only waives any right to object to the request, but the requesting party may move for an order that the genuineness of any documents and the truth of the matters specified be deemed admitted. (See also, Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393.) This becomes fatal to that party because once a matter is deemed admitted, that issue is determined to be preclusively established against them. This means that a party is prohibited from submitting any contrary evidence whatsoever as to that fact, unless leave of court is first obtained to withdraw or amend the response. Understandably, this can be devastating to a client’s case if any material facts are inadvertently admitted on account of a party’s failure to timely respond to these discovery requests. Furthermore, unlike other provisions of the Discovery Act, if a party fails to timely respond, sanctions are mandatory under C.C.P. § 2033.280(c). Accordingly, this procedure can significantly change the tide of a litigation and can lead to a quick and meaningful settlement for your client.
The other important, and often overlooked, implication is that Requests for Admission can also trigger cost of proof sanctions following trial. (See Grace v. Mansourian (2015) 240 Cal.App.4th 523, 529.) Under C.C.P. § 2033.420, if the responding party is found to have unreasonably denied a request for admission, that party may be ordered to pay the costs and fees incurred by the requesting party to prove the issue at trial. (Garcia v. Hyster Co. (1994) 28 Cal.App.4th 724, 736; Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618, 635-638.) Thus, depending on the subject matter of the requests, this can provide a client with significant leverage in settlement negotiations leading up to trial and safeguards a client’s recovery of costs on those certain issues if trial is found to be unavoidable.
A similar and equally effective tool that allows a party to potentially recover certain costs after trial is an offer to compromise under Civil Procedure § 998(c) and (d). Under C.C.P. § 998, a party may serve a written offer for settlement to another party, that is to be accepted or rejected within thirty days of that offer. (See C.C.P. § 998(b)(1-2).) However, if an offer to compromise or settle served under C.C.P. § 998 is rejected and then the rejecting party fails to obtain a more favorable judgment or award at trial, then the offering party may recover a reasonable sum of “post-offer costs.” Thus, by serving a well-timed C.C.P. § 998 Offer to Compromise, a party starts the clock by which all subsequent costs incurred, including expert witness fees, could be recoverable if the other party fails to obtain a more favorable judgment at trial. Notably, the language of the code section does not require the offering party to actually prevail at trial overall. Instead, the section states only that the rejecting party “obtain a more favorable judgment” than what was offered. Thus, depending on the amount, this can create quite the incentive to a party facing the quickly-rising costs of a pending trial or evidentiary hearing and may be more likely to lead to a settlement than if an offer under C.C.P. § 998 is never served.
Ultimately, it is important for probate practitioners unfamiliar with litigation to familiarize themselves with these tools or to consult with an attorney who is accustomed to navigating the intertwining of these related code sections. The litigation attorneys at Morrill Law are always available to guide and assist with these needs.