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Get Evidence of Denials & Defenses

Last edited 99 days ago by Ted Broomfield

SUMMARY

This blog for the target audience of attorneys that practice civil litigation in California, particularly, plaintiffs’ attorneys, explains the law of why a defendant is obligated to adduce all evidence supporting denials and defenses in response to Form Interrogatories request 15.1. Further, this blog shows why & how to meet & confer, then motion for further responses, if & when defendant refuses to respond.

OVERVIEW - BURKE and CCP 127.8(b)(3) OBLIGATE DEFENDANT TO ANSWER 15.1, BUT IF NOT ENFORCED YOU MAY HAVE WAIVED THE RIGHT TO CHALLENGE DEFENDANT’S OBJECTIONS.

As described in this section, the case

Burke⁠

v. Superior Court (1969) 71 Cal. 2d 276 expressly holds that a plaintiff is entitled to all evidence supporting denials and defenses. Indeed, by signing the answer, defendant/defense counsel has consented to discovery on denials & defenses. Code of Civil Procedure section 128(b)(3). Regardless, defense counsel is not accustomed to resistance to objections, so you will have to meet & confer, and frankly, you will likely have to motion to prevent the argument that you waived your rights.

Columbia⁠

Broadcasting Systems v. Superior Court (1968) 263 Cal.App.2d 12, 16.

The “playbook” the make FROGS 15.1, asking for all evidence of denials & defenses is to propound it after plaintiff has responded to written discovery. Then, when defendant refuses to answer, meet & confer, patiently, give time, and motion, if necessary. Ensure that you document the content of any oral conversations via email, and in email establish that you dispute any challenge to the content of your statement, and point out that regardless of what was said, the content of your email is your position.

If defendant forces you to motion by failing to adduce evidence, you probably should do so, despite the disfavored view of discovery motions.

DETAILS

FROGS 15.1 seeks all evidence of a defense in chief, evidence of denials & defenses

FROGS 15.1 asks for nothing less that all the evidence supporting denials & defenses. Frankly, getting a complete, straightforward, complete and truthful response to 15.1, should be all the evidence any plaintiff needs to prepare for a defense in chief.

Defendants usually refuse to answer FROGS 15.1 on General Denial, etc.

Unfortunately, generally, a defendant will refuse to respond to 15.1 at all. Typically, the bases of refusal to respond are the following objections: (1) the response denies the right to make a general denial; (2) the request is premature; and/or (3) it violates attorney client privilege.

Objections of denies right to make a general denial, premature, attorney-client privilege are frivolous

Those objections are frivolous.

Burke⁠

expressly holds that the right to a general denial in an Answer cannot excuse the obligation of a defendant to adduce evidence of its denials, defenses and contentions.

Burke⁠

v. Superior Court (1969) 71 Cal. 2d 276, 285-286. By signing the Answer, the attorney certified that the denials and defenses were “likely to have evidentiary support upon reasonable opportunity for further investigation and discovery,” so by failing to adduce evidence now, Defendant is de facto admitting that Defendant has no evidence. Code of Civil Procedure section 128.7(b)(3).

Requiring response to FROGS 15.1 does not deny right to make a general denial

A general denial, under

Code of Civil Procedure section 431.30⁠

(b)(2) is a single statement on a pleading, an Answer, denying all allegations that appear on the face of the complaint.

Discovery and responses are not pleadings. Discovery necessarily serves the function of "testing the pleadings," i.e., enabling a party to determine what his opponent's contentions are and what facts he relies upon to support his contentions. [

Singer v. Superior Court, 54 Cal.2d 318, 323-325 [5 Cal.Rptr. 697, 353 P.2d 305]⁠

Also, see generally the two different sections of the Code of Civil Procedure. “The pleadings are the formal allegations by the parties of their respective claims and defenses, for the judgment of the Court.”

Code of Civil Procedure section 420⁠

. Discovery is codified at Code of Civil Procedure section 2016.010. Discovery is the procedure to obtain admissible evidence to prove the claims or defenses in a pleading [

Code of Civil procedure section 2017.010⁠

], and therefore, by definition discovery is not a pleading. To the extent that a general denial on an answer was not challenged, asking for evidence to support that general denial cannot deny the right to make a general denial. It was made, not challenged. FROGS 15.1 is reasonably calculated to lead to admissible evidence.

Moreover, it is stare decisis, already decided, that objections to adducing evidence in response to discovery seeking facts, persons with knowledge, and documents in support of denials and defenses lack merit.

Burke⁠

v. Superior Court (1969) 71 Cal. 2d 276, 281-282, 285-286.

“...[A] defendant in California courts may be required through discovery to disclose not only the evidentiary facts underlying his affirmative defenses (

Singer v. Superior Court, supra, 54 Cal.2d 318, 323-325⁠

[defendant required to disclose the facts underlying his allegations of contributory negligence and assumption of risk]) and denials (

Durst v. Superior Court, 218 Cal.App.2d 460, 464-465 [32 Cal.Rptr. 627]⁠

[defendant required to disclose the facts underlying his denial that plaintiff had been injured or disabled]) but also whether or not he makes a particular contention, either as to the facts or as to the possible issues in the case. [

Universal Underwriters Ins. Co. v. Superior Court, 250 Cal.App.2d 722, 728 [58 Cal.Rptr 870]⁠

. see also

Sheets v. Superior Court, 257 Cal.App.2d 1, 13 [64 Cal.Rptr. 753]⁠

., as quoted from

Burke⁠

v. Superior Court (1969) 71 Cal. 2d 276, 281-282].

Additionally, “[b]y presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition…an attorney or unrepresented party is certifying that…[t]he allegations and other factual contentions [such as denials]…are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.” Code of Civil Procedure section 128.7(b)(3). So, if a general denial has been made, the person signing the pleading making the general denial has certified that discovery responses thereto will be provided.

Upon motion in limine, a trial court is supposed to deny admission of evidence that was properly sought during discovery, but, improperly denied during discovery. [

Thoren⁠

v. Johnston & Washer (1972) 29 Cal. App. 3d 270, 274-275].

However, failing to make a serious attempt to overcome the objections and obtain the evidence creates the risk that the trial court conclude a plaintiff failed to use the procedure to challenge the objections, and based thereon, the right to challenge the objections is waived.

Columbia⁠

Broadcasting Systems v. Superior Court (1968) 263 Cal.App.2d 12, [69 Cal. Rptr. 348].

In my experience, I have had many defendants state that certain defenses were no longer pursued. Others state that they have no evidence at the moment, still others actually provide testimony that serves to inculpate defendant. In other words, if you are serious about positioning your case to prevail at trial, you need to “fight,” for all of defendant’s evidence of denials & defenses.

Responses to FROGS 15.1 does not violate attorney client privilege or work product doctrine

Although the objections work product doctrine and attorney client privilege may be

bona fide objections; they can only be partial objections. There are no facts that can justify Defendant’s complete refusal to adduce all evidence supporting denials

First, a responding party must respond to the non-objectionable portions of the request, even if an objection partially applies.

Code of Civil Procedure section 2030.240⁠

If Defendants claim that they can transmute otherwise admissible evidence into either

work product attorney client privilege by merely communicating matters to attorneys, that concept is just incorrect with no basis in law.

As to work product, work product is not defined by statute and is determined on a case-by-case basis. [

City of Long Beach v. Superior Court (1976) 64 Cal.App.3d 65⁠

, 71.]. In a series of cases culminating with

Coito v. Superior Court⁠

(2012) 54 Cal.4th 480, 494, the courts have determined work product includes tangible things created by an attorney, or the employee of an attorney in preparation for litigation, containing the attorney’s notes, impressions, strategies and the like are work product under Code of Civil Procedure section

2018.030⁠

(a).

Therefore, any tangible thing that existed before Defendant’s knowledge of litigation is not and cannot be work product. This litigation stretches years. Any document created before the knowledge of the lawsuit, theoretically, before filing of Complaint, cannot be work product. Any document created by any person other than the Defendants’ attorneys, or their agents cannot be work product.

Similarly, attorney client privilege encompasses the contents of communications between a person and an attorney from whom that person seeks legal advice.

Evidence Code section 954⁠

. At the most basic, any fact or document that was exchanged with any person other than an attorney cannot be attorney-client privilege, because the communication was never confidential. Evidence Code section

954⁠

. So, any email, any text message, any letter, any document that either Defendant exchanged with any person other than an attorney in the course of seeking advice, cannot be attorney client privilege. Over the span of many years, these non-confidential communications must have occurred, and are not subject to attorney-client privilege.

It is well established, and long accepted that simply communicating facts to an attorney does not automatically make those facts privileged; rather, the communication must be made for the purpose of obtaining legal advice or assistance in a legal matter in order for the privilege to apply. Where facts occurred in the ordinary course of business, and were then later communicated to the attorney, those facts do not become converted into privileged attorney-client communications.

Green Shine⁠

e v. Superior Court (2001) 88 Cal.App.4th 532 , 537, See also

People ex rel. Dept. of Public Works⁠

v. Donovan (1962) 57 Cal.2d 346, 355.

Defendants bear the burden of proving privilege claimed on the basis of facts. [

DI Chadbourne⁠

, Inc. v. Superior Court (1964) 60 Cal. 2d 723, 729]. Defendant adduced no facts in the meet & confer or on the face of the objections. No facts can possibly sustain a complete refusal to respond.

DETAILS

Do not serve 15.1 before defendant has served discovery requests on plaintiff and plaintiff has fully responded

In the first instance, there is some limited merit to the premature argument. Every decent plaintiff’s attorney knows that discovery is timely propounded any time ten (10) days after service of summons, up to 30-days before trial. However, the instructions of FROGS 15.1 expressly state that the request should not be made before defendant has had a reasonable opportunity to conduct discovery. I generally makes FROGS 15.1 my “second,” set of discovery, with little or nothing else.

Meet & confer, politely, but firmly, document all oral conversations immediately with email

A plaintiff’s attorney will likely get strong resistance to serious effort to obtain responses to FROGS 15.1, for several reasons. Generally, plaintiffs’ attorneys merely accept the objections and don’t make any effort to get those responses. Also, responding to FROGS 15.1 is time-consuming and challenging, so defense attorneys attempt to avoid it. Here is a good strategy to meet & confer [Code of Civil Procedure section 2016.080 and Code of Civil Procedure section

Furthermore, and more jaded, defense attorneys may serve two clients, but, any experienced attorney should know that the defense attorney’s primary and real client is the insurance company. The more the defense attorney works with the defendant, the more likely Cumis counsel coverage is likely to trigger. Cumis counsel is when there is such a conflict of interest between the insurance counsel and the defense counsel that California law requires the insurance counsel to provide independent counsel of defendant’s own choosing at the expense of the insurer.

For those reasons, and more, defense counsel will strongly resist responding to FROGS 15.1. My experience is that such resistance will contain outright accusations of lack of professional conduct standards, up and including outright lying about the contents or oral meet & confer.

Document all oral conversations immediately with emails reiterating the gist of the communications. you will almost assuredly receive an indignant response disputing your content of the conversation. Respond to that dispute in writing with simple assertion that the parties will have to agree to disagree on what was orally stated in the undocumented conversation, but, regardless, defense counsel is now on notice of your position in writing through your email meet & confer.

Premature is frivolous, mostly, don’t propound 15.1 until after plaintiff has served discovery, and the time to motion has passed

Premature is one of the most favorite frivolous objections in discovery and it is often seen in conjunction with the equally frivolous objection that responding party has not had the opportunity to conduct discovery.

For a plaintiff, written discovery may start ten (10) days after service of summons. [ROGS -

Code of Civ. Proc. § 2030.020⁠

(b); RFAS -

Code of Civ. Proc. § 2033.020⁠

(b); DOCS -

Code of Civ. Proc. § 2031.020⁠

(b)].

Discovery ends, or cuts off, thirty (30) days before the initial date set for trial, and discovery motions, except for expert discovery motions. [

Code of Civ. Proc. § 2024.020⁠

(a)].

So, premature lacks legal basis.

Furthermore, Code of Civil Procedure section 2019.020 expressly states that “the fact that a party is conducting discovery, whether by deposition or another method, shall not operate to delay the discovery of any other party.” Code of Civil Procedure section

2019.020⁠

However, page one, section two of instructions to propounding party of the California Judicial Council Instructions for Form Interrogatories expressly states that “The interrogatories in section 16.0, specifically related to Defendant’s Contentions–Personal Injury, should not be utilized until the defendant has had a reasonable opportunity to conduct an investigation or discovery of the plaintiff’s injuries and damages. This cautionary approach ensures that the defendant has adequate information before responding to these interrogatories.” My experience is that this instruction is used as applicable to 15.1, as well.

So, a practice point, it is better to wait until after a defendant has propounded written discovery on plaintiff, plaintiff has served verified responses, and the time for any motion has passed, before propounding FROGS 15.1 and 16.

Other objections like overbroad, unduly burdensome, and the like fail

A responding party bears the burden of proving with facts that the intent of the party was to create an unreasonable burden, or that burden created does not weigh equally with what requesting party is trying to obtain from it. [

Mead Reinsurance⁠

Co. v. Superior Court (1986) CA3d 313, 317].

Plaintiff merely seeks the most important evidence that a plaintiff can obtain from a defendant; evidence supporting that defendant’s denials of Plaintiff’s material allegations of fact.

In meet & confer, it is unlikely that defendant can adduce any evidence that either plaintiff had the subjective intent to create an unreasonable burden, or that the burden created is not equally weighed with what Plaintiff seeks. Again, FROGS 15.1 is literally the most important evidence possible to obtain from Defendant – evidence of their denials. Hence, overbroad and unduly burdensome cannot be sustained as a reason to refuse to respond.

Prefatory objections are void

The Discovery Act does not authorize such a preamble such as a preliminary statement or general objections for any discovery device. Code of Civil Procedure section 2016.010 et seq. Code of Civil Procedure section

2030.210⁠

(a)(3) states that “(a) The party to whom interrogatories have been propounded shall respond in writing under oath separately to each interrogatory by any of the following: (3) An objection to the particular interrogatory.” Code of Civil Procedure section

2030.210⁠

(a)(3). Because prior to responding to any interrogatory specifically as required by Code of Civil Procedure section

2030.210⁠

(c) state a laundry list of objections to every response and do not specifically address any response, the objection violates Code of Civil procedure section

2030.210⁠

(a)(3) and is void.

Meet & confer, then motion to avoid waiver

A plaintiff’s attorney likely must meet & confer, and frankly, ultimately motion to prevent the argument that you waived your rights.

Columbia⁠

Broadcasting Systems v. Superior Court (1968) 263 Cal.App.2d 12, 16.

The authority to Authority to Motion to Compel Further Responses is at [

Code of Civ. Proc. § 2030.300⁠

] or alternatively the authority to Motion to Compel Responses is at

Code of Civil Procedure section 2030.290⁠

(b).

The deadline to file a motion is "...45 days of the service of the verified response, or any supplemental verified response..." Emphasis added -

Code of Civ. Proc. 2030.300(c)⁠

. Note however, the service of objections only responses signed by an attorney, but, not verified also starts that 45 day period.

Golf & Tennis Pro Shop, Inc. v. Superior Court, 2022 Cal. App. LEXIS 855⁠

Of course, you must meet & confer in good faith to informally resolve the matter. [

Code of Civ. Proc. sect. 2016.040⁠

, and

Code of Civ. Proc. sect. 2030.300⁠

(b)(1)].

Ensure that you document the content of any oral conversations via email, and in email establish that you dispute any challenge to the content of your statement, and point out that regardless of what was said, the content of your email is your position.

Make sure to create a separately captioned document that you file with the motion, entitled request for ruling on objections that contains a three column table, with the verbatim objection, the law why the objection lacks merit, and the rightmost column containing two lines for the Court to sustain or overrule.

Don’t forget to seek money sanctions, or more severe if warranted, under the authority of

Code of Civ. Proc. § 2030.300⁠

(d) for misuse of discovery, specifically failing to submit to an authorized method of discovery, making, without substantial justification, an unmeritorious objection to discovery, making an evasive response to discovery, opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery and failing to confer....in a reasonable and good faith attempt to resolve informally any dispute concerning discovery [Code of Civil Procedure section

2023.010⁠

(d), 9e), (f) and (i)].

SUMMARY

OVERVIEW - BURKE and CCP 127.8(b)(3) OBLIGATE DEFENDANT TO ANSWER 15.1, BUT IF NOT ENFORCED YOU MAY HAVE WAIVED THE RIGHT TO CHALLENGE DEFENDANT’S OBJECTIONS.

DETAILS

FROGS 15.1 seeks all evidence of a defense in chief, evidence of denials & defenses

Defendants usually refuse to answer FROGS 15.1 on General Denial, etc.

Objections of denies right to make a general denial, premature, attorney-client privilege are frivolous

Requiring response to FROGS 15.1 does not deny right to make a general denial

Responses to FROGS 15.1 does not violate attorney client privilege or work product doctrine

Premature is frivolous, mostly, don’t propound 15.1 until after plaintiff has served discovery, and the time to motion has passed

Other objections like overbroad, unduly burdensome, and the like fail