St. Mary v. Superior Court

July 16, 2012. Four days later, real parties in interest, without any attempt to meet and confer, filed a motion (Motion) with the respondent superior court requesting that the 119 RFAs in their entirety be deemed admitted, pursuant to Code of Civil Procedure section 2033.280, subdivision (b).^[1] The court granted the Motion as to the Schellenberg RFAs, deemed 41 of the 105 RFAs admitted, and awarded sanctions in favor of real parties in interest. The court’s order omitted any reference to the Motion to deem admitted the 14 RFAs propounded by Mills upon St. Mary.

St. Mary seeks a writ of mandate directing the superior court to vacate its order deeming the 41 Schellenberg RFAs admitted. She contends in her petition that real parties in interest’s Motion was defective in that it did not constitute a motion to compel further responses to RFAs under section 2033.290. She argues further that real parties in interest improperly included new matter for the first time in their reply papers—namely, argument directed to St. Mary’s responses to specific Schellenberg RFAs that real parties in interest claimed were deficient—and that the court granted the Motion based upon the presentation of such new arguments. St. Mary asserts that the impact of the court’s order is extremely significant because, among other things, six of the RFAs deemed admitted are specifically directed to a potential statutes of limitation defense asserted by real parties in interest.

In response, real parties in interest raise several procedural objections to the petition, including its timeliness.^[2] In addition, real parties in interest assert, among other things, that St. Mary has failed to demonstrate “clear error” entitling her to relief; the statutes under which real parties in interest’s Motion was brought (§ 2033.280) and the additional statute governing motions to compel further responses to RFAs (§ 2033.290) are clear; and the untimely responses to RFAs served by St. Mary were not substantially compliant with the Code of Civil Procedure.

We conclude that respondent court erred in granting real parties in interest’s Motion by deeming admitted 41 of the Schellenberg RFAs. Accordingly, we will grant the petition and order a writ of mandamus to issue commanding respondent to vacate its order and issue a new and different order denying real parties in interest’s Motion pursuant to section 2033.280, subdivision (b) as to the RFAs propounded upon St. Mary.

PROCEDURAL BACKGROUND^[3]

St. Mary filed her complaint on April 25, 2011, alleging claims sounding in fraud against Schellenberg, Mills, and David Nilsen^[4] (collectively, Defendants), arising out of the investment of her life savings of $475,000. According to the pleading’s caption, St. Mary asserts claims for breach of fiduciary duty, fraudulent concealment, conflict of interest, affirmative misrepresentation, fraudulent concealment in connection with the sale of an interest in real property, embezzlement, and a request for an accounting.

It is alleged by St. Mary^[5] that after having heard a radio advertisement in December 2005 promoting investment opportunities in Cedar Funding, Inc., she called the telephone number indicated in the radio advertisement and was referred to Schellenberg, who was identified as “ ‘Director, New Business’ for Cedar Funding, and [as] a ‘Real Estate & Loan Consultant.’ ” Schellenberg provided written materials to St. Mary and later recommended that she make a loan to his wholly owned separate venture, Neo Ventures, Inc., to facilitate ongoing substantial renovations of residential property located at 214 4th Street in Pacific Grove (subject property). He represented that in. exchange for her $475,000 investment, she “would receive an undivided 92.054 % majority interest in an already existing Promissory Note and an already recorded Deed of Trust” recorded against and secured by the subject property. Schellenberg represented to St. Mary that this deed of trust would ultimately be in first priority, that the subject property would be worth $1,375,000, and that her investment would be protected.

St. Mary alleges further in her complaint that “Defendants [intended] to defraud [her] by inducing her to advance $475,000.00 for [their] personal, secret and prohibited use and enjoyment.... Instead of action for the benefit

of protection of [St. Mary] in a transaction lending her investment out to a third person on a safe and fully secured loan with the represented adequate equity as security, Defendants always intended to convert the proceeds of the loan to their own personal use and benefit and did so.” St. Mary alleges that she provided the funds to Defendants in January 2006 in reasonable and justifiable reliance upon their representations. By March 2007, “Defendants had fraudulently but secretly extracted $1,887,000.00” using the subject property as the basis for the financial transactions. (Original boldface underscoring omitted.)^[6] St. Mary never received any security as promised, and her entire investment was lost after the bankruptcy of Cedar Funding, Inc., and the foreclosure of the subject property effectuated by a lienholder bank. She became aware of “the vast fraudulent operations of Defendants” in May 2008.

On June 7, 2012,^[7] Schellenberg served by mail upon St. Mary a set of 105 RFAs, seeking that she admit or deny certain specified matters.^[8] On the same date, Mills served by mail upon St. Mary a set of 14 RFAs, seeking that she admit or deny specified matters. St. Mary was therefore required to serve her responses to the Schellenberg RFAs and the Mills RFAs on or before July 12, 2012. (§§ 2033.250, 1013, subd. (a).)

On July 16—four days late—St. Mary served her responses to the Schellenberg and Mills RFAs by facsimile and mail. Prior to this tardy service of the responses, and on or before the July 12 deadline for service of the responses, counsel for St. Mary, David Hollingsworth—based upon the volume of the discovery and his involvement in preparing for a federal jury trial—requested that real parties in interest grant him a two-week extension to complete the responses.^[9] Real parties in interest did not respond to the extension request until after the responses were due. On July 13, Schellenberg faxed a letter to Hollingsworth granting a nine-day extension, subject to the condition that St. Mary immediately file a dismissal with prejudice of the action as to Mills.

On July 20—four days after receipt by facsimile of the responses to the RFAs—real parties in interest filed the Motion to have the Schellenberg and Mills RFAs propounded upon St. Mary deemed admitted.^[10] Real parties in interest acknowledged that St. Mary had (belatedly) served responses to the two sets of RFAs, and they attached those responses to the respective declarations of Schellenberg and Mills filed in support of the Motion. Real parties in interest contended that St. Mary’s “responses [were] defective, legally deficient, and a nullity.” They repeated this conclusory statement serially in the memorandum filed in support of the Motion. The Motion contained no reference to any particular response by St. Mary to any of the 119 RFAs to explain real parties in interest’s claim that the responses were defective or legally deficient. Indeed, other than being served four days late, there was no basis for real parties in interest’s claim that St. Mary’s responses to the 14 Mills RFAs were deficient; each response consisted of a one-word admission or denial.

On August 3, St. Mary’s counsel and Schellenberg appeared at a case management conference. There was substantial discussion between Hollingsworth, Schellenberg, and the court concerning the Motion, outstanding interrogatory responses due from St. Mary to real parties in interest (concerning St. Mary’s denials of any of the RFAs), and Hollingsworth’s unavailability for a portion of August due to a federal jury trial. The court suggested that it might be appropriate for the parties to arrive at a compromise under which St. Mary would agree to serve responses to the interrogatories by a date certain, in exchange for which real parties in interest would vacate the hearing on the Motion. At the conclusion of the conference, Schellenberg stipulated that if he had received St. Mary’s responses to interrogatories “in [his] hands” by the end of business on August 9, he would drop the Motion.

Hollingsworth, on behalf of St. Mary, filed opposition to the Motion on August 3. That opposition emphasized (1) the collective volume of the RFAs; (2) Hollingsworth’s unsuccessful attempts to obtain a two-week extension to respond; (3) real parties in interest’s belated reply to the extension request made after the responses were due in which they conditioned the grant of an extension upon the “extortionate demand” that Mills be dismissed with prejudice; and (4) the fact that St. Mary’s responses to both sets of RFAs were received by real parties in interest before they filed the Motion, and she had thus substantially complied with section 2033.220, notwithstanding that

the responses were four days late. Hollingsworth also noted that he had cured a technical issue with the responses to the RFAs—his failure to sign them as counsel—once he was made aware of the issue by a statement made in the Motion.

Real parties in interest filed a reply in support of their Motion on August 10.^[11]

At the hearing on the Motion on August 17, Schellenberg personally appeared and Hollingsworth appeared by telephone. After the court determined that the parties disagreed as to whether Hollingsworth had complied by serving the interrogatory responses on August 9, in compliance with the conditional stipulation under which real parties in interest agreed to drop the Motion, the court heard the merits of the Motion.^[12] It found that some of the responses complied with the Code of Civil Procedure, but some did not. The court concluded that the Motion as to the responses to the Schellenberg RFAs should be granted, and that any responses that were not unqualified denials would be deemed admitted. It entered an order the same day granting real parties in interest’s Motion, deeming admitted 41 of the Schellenberg RFAs; it concluded that as to those RFA responses, St. Mary had failed to serve responses in substantial compliance with section 2033.220.^[13]

St. Mary filed a motion for reconsideration of the court’s order granting the Motion. On October 5, the court denied the motion for reconsideration.

St. Mary filed her petition for writ of mandate with this court on October 22.^[14] On November 9, we issued an order staying all trial court proceedings

and a Palma^[15] notice indicating that we were considering issuing a peremptory writ of mandate in the first instance. Real parties in interest filed their opposition on December 27, and St. Mary filed her reply on January 29, 2013.

DISCUSSION

Discovery orders are generally reviewed for abuse of discretion. (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725 , 733 [ 101 Cal.Rptr.3d 758 , 219 P.3d 736 ].) This abuse of discretion standard is applicable to a variety of discovery rulings. (See, e.g., Edwards v. Superior Court (1976) 16 Cal.3d 905 , 913 [ 130 Cal.Rptr. 14 , 549 P.2d 846 ] [order compelling psychiatric examination of litigant]; Life Technologies Corp. v. Superior Court (2011) 197 Cal.App.4th 640 , 655 [ 130 Cal.Rptr.3d 80 ] [order compelling further responses to interrogatories]; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390 , 401 [ 55 Cal.Rptr.3d 751 ] (Sinaiko Healthcare) [discovery sanctions order]; Obregon v. Superior Court (1998) 67 Cal.App.4th 424 , 431 [ 79 Cal.Rptr.2d 62 ] [determination of adequacy of meet and confer efforts regarding discovery dispute].)

Our high court has indicated that this abuse of discretion standard is founded on principles of deference to the trial court, such as “whether or not the trial court exceeded the bounds of reason, all of the circumstances before it being considered” (In re Marriage of Connolly (1979) 23 Cal.3d 590 , 598 [ 153 Cal.Rptr. 423 , 591 P.2d 911 ]), and that appellate courts should disturb discretionary trial court rulings only upon a showing of “ 1 “a clear case of abuse” ’ ” and “ ‘ “a miscarriage of justice” ’ ” (Blank v. Kirwan (1985) 39

80 Cal.App.4th 1050 , 1061 [ 95 Cal.Rptr.2d 864 ]; see Toshiba America, supra, 124 Cal.App.4th at p. 767.) Furthermore, “[b]ecause requests for admissions are more closely akin to summary adjudication procedures than to orthodox discovery, being designed not so much to ‘discover’ the facts and to expedite trial preparation as to render it unnecessary to try an otherwise triable issue of fact or law [citations], we do not apply the rule that a reviewing court should rarely interfere with pretrial discovery orders, particularly where such orders operate to grant discovery. [Citation.]” (Hansen v. Superior Court (1983) 149 Cal.App.3d 823 , 827-828 [ 197 Cal.Rptr. 175 ], italics omitted.)

A

party may request that another litigant “admit the genuineness of specified documents, or the truth of specified matters of fact, opinion relating to fact, or application of law to fact. A request for admission may relate to a matter that is in controversy between the parties.” (§ 2033.010.) Unless the responding party moves promptly for a protective order under section 2033.080, he or she, within 30 days of service of the RFAs (§ 2033.250), shall respond in writing under oath and separately to each RFA (§ 2033.210, subd. (a)) and “shall answer the substance of the requested admission, or set forth an objection to the particular request” (id., subd. (b)). Each response to the RFAs must be “complete and straightforward.” (§ 2033.220, subd. (a).) The responding party shall admit as much of the request that is true, “either as expressed in the request itself or as reasonably and clearly qualified by the responding party” (id., subd. (b)(1)); “[d]eny so much of the matter involved in the request as is untrue” (id., subd. (b)(2)); or “[s]pecify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge” (id., subd. (b)(3)).^[16]

RFAs are different from other civil discovery tools such as depositions, interrogatories, and requests for documents. “Most of the other discovery procedures are aimed primarily at assisting counsel to prepare for trial. Requests for admissions, on the other hand, are primarily aimed at setting at

rest a triable issue so that it will not have to be tried. Thus, such requests, in a most definite manner, are aimed at expediting the trial.” (Cembrook v. Superior Court (1961) 56 Cal.2d 423 , 429 [ 15 Cal.Rptr. 127 , 364 P.2d 303 ] (Cembrook); see Stull v. Sparrow (2001) 92 Cal.App.4th 860 , 864 [ 112 Cal.Rptr.2d 239 ] (Stull) [instead of “seeking to uncover information, [RFAs] seek to eliminate the need for proof’].) As has been explained in one treatise: “The admission request differs fundamentally from the other five discovery tools (depositions, interrogatories, inspection demands, medical examinations, and expert witness exchanges). These devices principally seek to obtain proof for use at trial. In marked contrast, admission requests seek to eliminate the need for proof: ‘[T]he purpose of the admissions procedure ... is to limit the triable issues and spare the parties the burden and expense of litigating undisputed issues.’ Sometimes, the admissions obtained will even leave the party making them vulnerable to summary judgment.” (1 Hogan & Weber, Cal. Civil Discovery (2d ed. 2005) § 9.1, p. 9-2, fns. omitted, quoting Shepard & Morgan v. Lee & Daniel, Inc. (1982) 31 Cal.3d 256 , 261 [ 182 Cal.Rptr. 351 , 643 P.2d 968 ].) Matters that are admitted or deemed admitted through RFA discovery devices are conclusively established in the litigation and are not subject to being contested through contradictory evidence. (Murillo v. Superior Court (2006) 143 Cal.App.4th 730 , 736 [ 49 Cal.Rptr.3d 511 ] (Murillo).)

Prior to 1987 and the enactment of the Civil Discovery Act (§ 2016.010 et seq.), a party propounding RFAs was required to include a warning that noncompliance would result in the RFAs being deemed admitted; in the event timely responses were not served and the propounding party then served a statutory notice that the RFAs had been deemed admitted, the nonresponding party would then have 30 days to make a motion for relief from default under section 473 to avoid the RFAs becoming binding admissions. (Wilcox v. Birtwhistle (1999) 21 Cal.4th 973 , 979 [90 Cal.Rpfr.2d 260, 987 P.2d 727 ] (Wilcox).) “This practice, however, was problematic because it: (1) was too ‘draconian’ and ‘imposed a sanction for nonresponse or tardy response that [was] out of all proportion to the abuse of discovery’; and (2) created no incentive for a party willing to make the admissions to serve an actual response. [Citations.]” (Id. at pp. 979-980.)^[17]

Under the RFA procedure postdating the Civil Discovery Act, a propounding party must take affirmative steps—by bringing a formal “deemed admitted” motion—to have RFAs to which timely responses are not

received deemed admitted. In the event responses to RFAs are not timely served, the responding party waives any objections thereto (§ 2033.280, subd. (a)), and “[t]he requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction . . .” (id., subd. (b)). Unless the court determines that the responding party “has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220,” it must order the RFAs deemed admitted. (Id., subd. (c).) “[A] deemed admitted order establishes, by judicial fiat, that a nonresponding party has responded to the requests by admitting the truth of all matters contained therein.” (Wilcox, supra, 21 Cal.4th at p. 979.) The court must also impose monetary sanctions upon the party and/or the attorney for the failure to serve a timely response to the RFAs. (§ 2033.280, subd. (c).) But a responding party’s service, prior to the hearing on the “deemed admitted” motion, of substantially compliant responses, will defeat a propounding party’s attempt under section 2033.280 to have the RFAs deemed admitted. (Tobin v. Oris (1992) 3 Cal.App.4th 814 , 827 [ 4 Cal.Rptr.2d 736 ] (Tobin).) As one court put it: “If the party manages to serve its responses before the hearing, the court has no discretion but to deny the motion. But woe betide the party who fails to serve responses before the hearing. In that instance the court has no discretion but to grant the admission motion, usually with fatal consequences for the defaulting party. One might call it ‘two strikes and you’re out’ as applied to civil procedure.” (Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393 , 395-396 [ 42 Cal.Rptr.2d 260 ], fns. omitted (Demyer).)^[18]

If the propounding party believes that the responses to RFAs are deficient in some respect or that any objections thereto are not well taken, he or she may make a motion to compel further responses under section 2033.290. (See Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618 , 636 [ 65 Cal.Rptr.2d 532 ]; Tobin, supra, 3 Cal.App.4th at p. 829, fn. 25.) Section 2033.290 provides that such a motion to compel further responses may be made within 45 days of service of the responses (§ 2033.290, subd. (c)) if the propounding party asserts that the particular answer or answers are “evasive or incomplete” or the objection or objections are “without merit or too general” (id., subd. (a)). The court is required to impose sanctions upon the unsuccessful party or attorney for the party in connection with a motion to compel further responses, unless it finds that the “one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Id., subd. (d).) And if the responding party disobeys an order compelling further responses made under section 2033.290, the court is empowered to “order that the

matters involved in the requests be deemed admitted” and/or impose monetary sanctions. (Id., subd. (e).)^[19]

A

. Nature of Deemed Admitted Motion

We first address the nature of the Motion brought by real parties in interest, because resolution of this issue is directly germane to the propriety of the challenged order. As discussed ante, there are three types of motions that a party propounding RFAs may initiate: (1) motions to deem RFAs admitted based upon the responding party’s failure to serve any responses at all in a timely fashion (§ 2033.280, subd. (b)); (2) motions to compel further responses to RFAs where the responses are claimed to be inadequate or the objections improper (§ 2033.290, subd. (a)); and (3) motions to deem responses admitted and/or for sanctions based upon the responding party’s disobedience of an order compelling further responses (id., subd. (e)). It is clear for a number of reasons that the Motion was of the first-described type pursuant to section 2033.280, subdivision (b).

First, the Motion did not include a statement that real parties in interest were seeking to compel further responses because they were inadequate or deficient. Second, real parties in interest made no reference in their Motion to any of the specific, tardy RFA responses of St. Mary that were allegedly substantively inadequate. Nor did they describe in the Motion with any specificity the basis for their generalized and repeated claim that the responses were “defective, legally deficient, and a nullity.” Third, neither the notice nor memorandum in support of the Motion contained a reference to section 2033.290, the statute governing motions to compel further RFA responses. Fourth, the Motion included no declaration indicating any meet and confer attempts made by real parties in interest in an effort to avoid bringing the Motion. Clearly, such a declaration would have been required for a motion to compel further responses. (§ 2033.290, subd. (b); see § 2023.020 [court shall impose sanction for failure to meet and confer as required under Civil Discovery Act].) Indeed, real parties in interest stated in the Motion that there is no meet and confer obligation at all—a true statement for a deemed admitted motion brought under section 2033.280 (Weil & Brown, Cal.

suggests that the court evaluate qualitatively the proposed response to RFAs in toto to determine whether it substantially complies with the code. It does not permit the court to segregate each individual RFA response for the purpose of finding that portions of the document are code compliant (and will therefore be accepted), while concluding that other portions are noncompliant (and will thus be rejected). Furthermore, the fact that there is an effective statutory vehicle by which a propounding party may seek a court order compelling a responding party to cure individual RFA responses deemed not to be in compliance with section 2033.220—namely, a motion to compel further responses under section 2033.290—offers additional support for our view that the court’s seriatim approach to St. Mary’s proposed response to the- RFAs was improper. We therefore conclude that the court’s misapplication of section 2033.280 in granting the deemed admitted Motion in part and denying it in part constituted an abuse of discretion. (See City of Sacramento v. Drew, supra, 207 Cal.App.3d at p. 1297 [“[ajction that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an ‘abuse’ of discretion.”].)

Were we to disregard the court’s failure to evaluate St. Mary’s proposed response to RFAs in its entirety to determine its compliance with section 2033.220, we would nonetheless conclude that the court erred. First, the proposed response to the RFAs was verified as required by section 2033.210, subdivision (a). (Cf. Allen-Pacific, Ltd. v. Superior Court, supra, 57 Cal.App.4th at p. 1551 [unverified response to RFAs did not substantially comply with law].) Further, St. Mary’s response was unquestionably code compliant, at least as it concerned the responses to 64 of the individual RFAs: they consisted of one-word “Admit” or “Deny” responses.^[20]

Moreover, the court’s conclusion that the responses to the remaining 41 RFAs did not substantially comply with section 2033.220—based upon reasoning stated at the hearing that each response was “not unequivocal and [was] incomplete” because each contained additional language besides an admission or denial—was incorrect. This finding was apparently based upon the faulty premise that it is universally improper for a responding party to include any explanation in denying or admitting an individual RFA. Although “[a] denial of all or any portion of the request must be unequivocal [citation] [][]... reasonable qualifications are not improper . . . .” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra, f 8:1332.1, p. 8G-16 (rev. # 1, 2012); see 1 Hogan & Weber, Cal. Civil Discovery, supra, § 9.11, pp. 9-25 to 9-26.) Thus, for instance, the RFA response, “ ‘As framed, denied,’ ” was held to constitute a legally sufficient denial. (Smith v. Circle P Ranch Co. (1978) 87 Cal.App.3d 267 , 275 [ 150 Cal.Rptr. 828 ]; see Holguin v.

Superior Court (1972) 22 Cal.App.3d 812 , 820 & fn. 9 [ 99 Cal.Rptr. 653 ] [RFA responses proper despite “rather weaseling qualification attached to most of them that they are made on advice of counsel”].)

An examination of a small sample of the RFA responses the court found deficient illustrates the point. St. Mary’s response to RFA No. 20 (“Admit you attended a meeting with David Nilsen on or about January 13, 2006”) was “Admit. Thomas Schellenberg was also present.” This response admitted the statement and was not improper. St. Mary’s response to RFA No. 27 (“Admit that you intended on purchasing a fractional interest in a real estate secured note and deed of trust from Cedar Funding, Inc.”) was “Admit, first position only.” This was also a proper admission to the statement, and the fact that it included a short statement further explaining the nature of St. Mary’s intent beyond what was included in the RFA did not render the response improper. St. Mary’s response to RFA No. 88 (“Admit that you knew during the month of March 2008, that there were problems at Cedar Funding, Inc.”) was: “Deny. There seemed to be rational explanations for tardiness.” This response was also apparently a straightforward denial that included an explanation as to the reason the statement was denied.

St. Mary responded to RFA No. 91 (“Admit you received a letter from David Nilsen, owner of Cedar Funding, Inc.[,] on or about April 9, 2008, telling you that there were problems at Cedar Funding, Inc.”) with the following: “Deny. That letter dated April 10, 2008, was by no means a statement of ‘problems at Cedar Funding, Inc.’ but attribution of all delays to ‘the worldwide financial markets are in turmoil due to the effects of the U.S. sub-prime mortgage markets[,]’ and ‘investment banks like Bear Steams.’ In fact, on 4/17/08 at 5:26 P.M., Mr. Schellenberg answered my inquiry of one hour earlier by personally attributing all problems to a declining, problematic economy and urging me to discount ‘rumor and fear, innuendo and imagination.’ All problems fully known and understood by Mr. Schellenberg and Mr. Nilsen were continued to be concealed. [5z'c.]” In this response, St. Mary attempted to deny that the specified letter had the content as described in the RFA. Without us determining conclusively whether it was in full compliance with section 2033.220, it constituted a denial that was in substantial compliance with the statute.^[21]

Our review of the totality of St. Mary’s proposed response to the Schellenberg RFAs—an approach not taken by the trial court—leads to the conclusion that the response was in substantial compliance with section 2033.220. (See Freeman, supra, 207 Cal.App.4th 791 , 793 [“Substantial compliance with a statute is dependent on the meaning and purpose of the statute.”]) The proposed response was verified by the party; contained responses to a majority (64) of the individual RFAs that were unquestionably code compliant; contained, as to at least most of the balance of the individual RFAs (41) meaningful, substantive responses; and was served well before the hearing (and, in fact, even before the deemed admitted Motion was filed). Although St. Mary’s proposed response may not have actually complied with compliance is not required where the proposed response is facially a good faith effort to respond to RFAs in a manner that is substantially code compliant. (See Costa, supra, 37 Cal.4th at p. 1017, fn. 24.) The Motion therefore should have been denied.^[22]

Section 2033.290 authorizes a party propounding RFAs to seek further responses in the event he or she concludes that the individual responses received are legally insufficient. Real parties in interest’s argument in their reply below that St. Mary’s proposed response included responses to certain specific RFAs that were deficient effectively transmuted their deemed admitted Motion into a motion to compel further responses under section 2033.290. The detriment to St. Mary from this shift was exacerbated by several factors: (1) real parties in interest did not cite section 2033.290 in their Motion papers, and they assured the court at a conference held the day St. Mary filed her opposition that the Motion was a deemed admitted Motion and was not a motion to compel; (2) the court indicated at the same conference that it viewed the Motion as not addressing the content of the individual responses, and that any challenge to specific RFA responses would be the proper subject of a later motion to compel further responses;^[23] and (3) the fact that real

parties in interest did not argue any particular deficiencies with respect to any individual REA response until their reply papers were filed one week before the hearing, thereby precluding St. Mary from addressing such claims in her opposition. (See Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002 , 1010 [ 197 Cal.Rptr. 250 ] [“points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before”]; cf. Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349 , 362, fn. 8 [ 13 Cal.Rptr.2d 811 ] [court’s consideration of new matter presented in summary judgment reply not an abuse of discretion if opponent has notice and court gives him or her an opportunity to respond to it].)

Further compounding the problem, the court adopted real parties in interest’s position that the proposed response contained a number of responses to RFAs that were legally insufficient.^[24] The court deemed admitted 41 specific REA responses that it concluded were not code compliant, rather than considering whether the proposed response to the Schellenberg RFAs as a whole substantially complied with section 2033.220—thereby effectively converting real parties in interest’s deemed admitted Motion under section 2033.280 into a motion to compel further responses under section 2033.290. The court is authorized by statute to deem particular requests admitted if the responding party fails to comply with an order compelling further responses to RFAs. (§ 2033.290, subd. (e).) Here, the court, at real parties in interest’s urging, bypassed four steps of the statutorily required process by deeming admitted the responses to 41 RFAs in St. Mary’s proposed response: There was no prior (1) motion to compel further responses (§ 2033.290. subd (a)); (2) order compelling further responses; (3) noncompliance with an order compelling further responses; or (4) motion to deem specific RFAs admitted based upon noncompliance with a prior order compelling further REA responses (id., subd (d)).

In concluding that the court abused its discretion by misapplying section 2033.280 and effectively granting a motion under section 2033.290 that was never made, we cannot ignore the potentially drastic consequences to a civil litigant of having RFAs deemed admitted, given the fact that an REA that is admitted is “conclusive in the action as to the party making it.” (Murillo, supra, 143 Cal.App.4th at p. 736.) We do not read the statutes governing RFAs in a vacuum. The purpose of the REA procedure is to expedite trials and to eliminate the need for proof when matters are not legitimately contested. (Cembrook, supra, 56 Cal.2d at p. 429; Stull, supra, 92 Cal.App.4th at p. 864.) The REA device is not intended to provide a windfall to litigants. Nor is the REA procedure a “gotcha” device in which an overly