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The Morrison Law Journal
January 2015
Volume X, Edition 1

When There Is No Admission: Court Of Appeal Rules That A Party May
Not Be Examined At Trial About Negative Responses To Requests For

By: Edward F. Morrison, Jr., Esq.
Larry A. Schwartz, Esq.

Under California law, any party may serve in a civil litigation matter a Request for Admission pursuant to Code of Civil Procedure § 2033.010, et seq. The responding party in general may either admit the Request for Admission, deny the Request for Admission or state that the Request for Admission cannot be responded to based upon information available to the responding party. An interesting question has arisen over the years as to whether a response to a Request for Admission can be used when the response is not an admission, but either a denial or a statement by the responding party that it lacks sufficient information to respond. This situation often arises when a defendant denies liability or responsibility in a response to a Request for Admission but then expresses sympathy or remorse before a jury.

The Court in Gonsalves v. Ran Li (2015) DJDAR 473 ("Gonsalves matter") provides some guidance. The Gonsalves matter concerned a serious personal injury accident which took place during a test drive of a BMW M3 automobile in Concord, California. The plaintiff was Kenneth Gonsalves, a sales person for the BMW dealership. The defendant was Ran Li, a prospective customer who was driving the M3. Prior to the accident, Li drove the M3 on to a highway without incident (although Gonsalves claimed that Li was driving at excessive speed). As Li was returning to the dealership, he asked Gonsalves about various buttons on the dashboard, including the M button. Li then headed back toward the highway on-ramp. Sometime before Li reached the highway on-ramp, Li pressed the M button. He told Gonsalves, “I'm just going to get on the freeway and I'll get right back off.” As he accelerated into the curve of the on-ramp, he lost control of the vehicle and hit a guardrail causing injuries to Gonsalves.

Gonsalves blamed the accident on Li for pressing the M button. Li claimed that Gonsalves encouraged Li to press the M button and blamed the accident on the M button.


During discovery, Gonsalves served Requests for Admissions on Li including a Request for Admission that “at the time as you began your turn from Concord Avenue onto Highway 242 northbound on-ramp you were driving too fast for the conditions.” In his responses, Li replied, “Responding party has a lack of information and knowledge to admit this Request for Admission." During trial, counsel for Gonsalves cross-examined Li about the Request for Admission that Li had not admitted. In closing argument, Gonsalves' counsel urged the jury to consider Li's failure, in response to the Requests for Admissions, to admit that his pressure on the accelerator was a substantial factor in causing the accident, as evidence of his failure to take responsibility for Gonsalves's injuries

The jury found only Li negligent and awarded Gonsalves $118,642.86 for past medical expenses, $90,000 in future medical expenses, and $1,000,000 in noneconomic damages. The trial court denied Li's motion for a new trial, and entered judgment against Li for $1,208,642.86.

On appeal, Li argued that the court erred in permitting Gonsalves' counsel to examine Li about his negative responses to Gonsalves's Requests for Admission (RFA's) and admitting those responses into evidence. The Court of Appeal agreed and reversed. Noting that the Discovery Act only provides for a monetary sanction if a party unreasonably refuses to admit a matter, the Court of Appeal ruled that a negative response is not admissible evidence.

The Gonsalves matter will likely have impacts on many different types of cases as a defendant who denies fault in response to a Request for Admission cannot be examined about the denial before the jury, even if the defendant essentially admits to some degree of fault at trial.

About the Authors: Edward F. Morrison, Jr. is the founding partner and Larry A. Schwartz is Of Counsel to The Morrison Law Group, a professional corporation. Their biographies can be viewed at

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