How to Ask to Withdraw Erroneous or Deemed Admissions
Disclaimer: This guide is intended as general information only. Your case may have factors requiring different procedures or forms. The information and instructions are provided for use in the Sacramento County Superior Court. Please keep in mind that each court may have different requirements. If you need further assistance, consult a lawyer.
This packet includes:
Click here to download this guide with step-by-step instructions for completing the forms.
During discovery, each party may serve one or more sets of "Request for Admissions," asking the opposing side to admit that one or more facts are true or one or more documents are genuine. If a party admits a fact, or admits that a document is genuine, that fact, or the genuineness of the document in question, does not need to be proven at trial.
Occasionally, a party may inadvertently or mistakenly admit a fact that is not true, or may fail to respond to a Request for Admissions all together, resulting in a court order deeming each of the facts listed in the Request for Admissions to be true, and each document listed in the Request to be deemed genuine.
This guide provides step-by-step instructions for asking a court to be relieved from these admissions, including a sample motion that can be downloaded and modified to fit the facts and circumstances of your case.
GROUNDS FOR RELIEF
California Code of Civil Procedure § 2033.300(b) allows a court to permit the withdrawal or amendment of admissions only if the court "determines that the admission was the result of mistake, inadvertence, or excusable neglect, and that the party who obtained the admission will not be substantially prejudiced in maintaining that party's action or defense on the merits."
Mistake, Inadvertence, or Excusable Neglect:
The party asking to be relieved of admissions must present sufficient evidence for the court to find that the admissions or failure to respond to the Request for Admissions was the result of a mistake, inadvertence, or excusable neglect. The act or omission that led to the admission must be one that a reasonably prudent person under the circumstances would make. Forgetting about the admissions, being too busy to properly respond, or being unable to afford an attorney are not sufficient grounds for relief.
Some examples of reasons that might be excusable include:
- An unanticipated illness or injury that disabled the party, preventing him or her from responding;
- Reasonably, but mistakenly, believing that your former attorney had responded, based upon his or her representations;
- Having never received the Request for Admissions and subsequent motion to deem the admissions true, through no fault of your own;
- Misunderstanding a particularly complicated request, and incorrectly responding "admit" based upon this misunderstanding;
- Admitting or denying a fact based upon the information available at the time, only to determine through later-discovered evidence that your previous response was incorrect;
- Making a typographical error in the numbering of your responses such that your admissions do not correctly correspond to the requests, resulting in false statements being admitted, and true statements being denied.
No Substantial Prejudice to Other Party:
After determining that an admission is the result of a mistake, inadvertence, or excusable neglect, the court must then consider whether the party that obtained the admission will be prejudiced if your motion to relieve the admission is granted. Some of the factors the court might find important in determining whether the other party will be prejudiced include, but are not limited, to:
- The promptness in which relief from admissions is granted;
- The nature of the facts that were admitted or deemed admitted;
- The reliance of the requesting party on the admission in conducting or not conducting further discovery.
In order to minimize any prejudice to the propounding or requesting party, the court may extend or reopen discovery, allow additional discovery, or make other orders to reduce any harm caused in granting your motion to relieve admissions.
As the party requesting to be relieved of the admissions, it is your burden to prove to the court both that the admission was the result of a mistake, inadvertence, or excusable neglect, and that the propounding party will not be prejudiced by the granting of your motion.
STEP 1: PREPARE THE MOTION
1.1 Motions in General
A request to be relieved of the effect of admissions is made through a motion. A "motion" is a request made in a case asking the court to issue an order of some sort. Most motions are in writing. With few exceptions (such as in family law cases), there is no Judicial Council form for making a motion. Instead, the motion must be typed on 28-line pleading paper. A written motion consists of four parts:
1) Notice of Motion;
3) Points and Authorities; and
The Notice of Motion lets the opposing party know when and where the motion is scheduled to be heard, while the Motion lets the court and the opposing party know what is being requested. The Points and Authorities explain to the court and the opposing party the legal basis of the motion, while the Declaration provides evidence, sworn under penalty of perjury, supporting the motion.
The first two parts, the Notice of Motion and Motion, are typically combined together in the same document, while the Points and Authorities and Declaration are often separate documents. In many instances, however, they may be combined together into the same document, as in the case of the sample included in this Step-by-Step Guide.
1.2 Modify the Template Motion
At the end of this guide is a sample motion to be relieved from admissions. This sample is a checkbox form that can be filled in by hand. Although you may use this form as is, if you download the customizable template of the motion from our website at http://www.saclaw.org/Uploads/files/Step-by-Step/admissions-relief.rtf and modify it to the specifics of your case, your end result will likely be much easier to read and more persuasive.
Finally, although the declaration (the last part of the motion) can be used as a checkbox form, it is generally preferable if you use your own words to explain the facts of your case. This form does not anticipate all possible facts that might arise, and is best used merely as a guideline for some of the points that should be made in your declaration. The declaration is the most important part of the motion because the declaration presents to the court the evidence that you wish the court to consider when ruling on your motion. Since it is your responsibility, as the moving party, to prove the basis of your motion, the better your declaration, the more likely it is that your motion will be granted by the court. Important: Your declaration must have a copy of your proposed admissions attached as an Exhibit. If proposed admissions are not attached your motion will be denied. Sample responses are included in Exhibit A to the sample motion for relief from admissions.
1.3 Setting the Date of the Motion
Online Court Date Calculator
The Los Angeles County Superior Court offers a handy "Court Date Calculator" to assist in calculating the number of court days (excluding weekends and holidays) from a given date, counting either forward or backward.
In Sacramento, the party requesting most motions is responsible for setting the date for hearing the motion. There are two very important deadlines you must consider when setting the date of a motion to be relieved of admissions: the filing deadline and the service deadline.
Filing Deadline: The motion must be filed with the court at least sixteen court days prior to the motion date. California Code of Civil Procedure §1005. Court days are Monday through Friday, excluding court holidays. To determine whether a particular filing date will meet this deadline, start with the first court day after the planned filing date as day one, and count forward sixteen court days. The first possible date the motion can be heard is day sixteen.
For example, suppose you wanted to file a document on May 21, 2012. You would start counting using May 22nd as day one. Do not count weekends or court holidays (there is only one court holiday in this example, which is Memorial Day, May 28). If you wanted to file a motion on May 21, 2012, the sixteenth court day after that would be June 13, 2012, which is the earliest date the motion could be heard.
Service Deadline: Prior to filing the motion with the court, all other attorneys, or self-represented parties in a case must be served with a copy of the motion. This means that someone over the age of 18 who is not a party in the case must either personally deliver a copy of the motion and related documents to the attorney or self-represented party or mail a copy of the motion and related documents to the attorney or self-represented party by first class mail.
If the motion is personally served, the service must be at least sixteen court days prior to the date of the motion, the same as the minimum filing deadline.
If the motion is served by first-class mail, additional time is added to the calculation, depending on where the mail originates and to where it is sent. California Code of Civil Procedure §1005. For example, if the documents are mailed from California to an address in California, five calendar days are added after the sixteen court days.
Calendar days include weekends and holidays, but if the final day lands on a weekend or holiday, it is rolled over to the next court day. So, using May 21, 2012 as the date of mailing, for example, the sixteenth court day remains June 13, 2012, but five more calendar days must be added to determine the earliest motion date. This would make Monday, June 18th the first day the motion could be heard.
When choosing the date of your motion, be sure that you have left enough time for the motion to be both served and filed in a timely fashion.
1.4 Determining the Department to Hear and the Time of the Motion
Motions to be relieved of admissions are heard in Department 53 at 2:00 p.m. or Department 54 at 9:00 a.m., depending on your case number, Monday through Friday except for holidays. To determine whether your motion is in department 53 or 54:
- IF your case number is in the format XXAMXXXXX or XXASXXXXX where X is a digit, look at the last digit of the case number. If it is odd, then your law and motion department is 53 at 2:00 p.m. If it is even, it is department 54 at 9:00 a.m.
- IF your case number is in the format 34-YYYY-XXXXXXXX where YYYY is a year, and X are digits, look at the last two digits in the case number. If the last two digits are in the ranges of 00-24 or 75-99, your law and motion department is 53 at 2:00 p.m. If the last two digits are in the ranges of 25-74, it is department 54 at 9:00 a.m.
STEP 2: MAKE COPIES
Make four (4) copies of your Motion. One of these copies is to be served on the other side's attorney (or the other side, if the other side does not have an attorney); the original and the other three copies are to be filed with the court. Staple each of the copies, but leave the original unstapled. Sacramento County Superior Court uses an electronic filing system in which documents are scanned in electronically. Stapled originals are not accepted because the staple will jam in the scanner, damaging both the document and the scanner.
It is expected that your motion will have at least one exhibit attached, a copy of the admissions or amended admissions you would have served. A page in front of the exhibit identifying it as Exhibit A (or Exhibit B, or other exhibit letter, depending on how many exhibits you have and the order in which they are mentioned in your Declaration) is acceptable in the original that is being scanned, and in all of your copies but one. In one of your copies, you must replace this exhibit-identifying page with a sheet of cardstock (thick paper), with a rigid tab on the bottom (paper or plastic is acceptable) marked "Exhibit A" (or other exhibit letter). The copy with the tab is one of the copies that will be kept by the court, and the tab exists to allow the judge to quickly flip to the exhibit. If you forget this tab on one of the copies, the court clerk may reject your entire filing.
Note: The Sacramento County Public Law Library sells card stock and exhibit tabs at the Circulation Desk for 25 cents each.
STEP 3: HAVE THE MOTION SERVED
The person who is serving your motion for you must complete a proof of service form, typically, either a Proof of Personal Service form or a Proof of Service by First Class Mail form. For more information on these Proofs of Service, see the guides on our website at http://www.saclaw.org/pages/personal-service.aspx and http://www.saclaw.org/pages/pos-mail.aspx, respectively.
The proof of service form should be completely filled out, but not signed. Make a copy of the unsigned proof of service before proceeding.
The person over the age of 18 who is not a party to the case must then personally deliver or mail a copy of the Motion along with a copy of the unsigned proof of service form on other side's attorney (or the other side, if the other side does not have an attorney). The unsigned proof of service form can be attached as the last page of the Motion.
The person doing the serving then signs the Proof of Service form, and gives the signed Proof of Service to you.
STEP 4: COPY THE SIGNED PROOF OF SERVICE
Make three (3) copies of the signed Proof of Service. It is not necessary to copy the instruction page.
STEP 5: ASSEMBLE YOUR DOCUMENTS FOR FILING
Assemble your packet for filing as follows:
❑ Motion with all pages, plus three (3) copies. The original should be unstapled in Sacramento, while each copy is stapled. One of the three copies should have cardstock exhibit divider pages, with a tab or tabs at the bottom identifying the Exhibit(s). One of the exhibits should be a copy of the proposed admissions. See Step 2 above.
❑ Completed Proof of Service Form. The original plus three (3) copies. This proof of service can be attached as the last page of the Motion when filing. If this is the case, then the original Proof of Service should be attached to the original Motion, and the copies of the Proof of Service should be attached to the copies of the Motion.
STEP 6: FILING/FEES
File your motion and proof of service at the Law & Motion Civil Filing Window in Room 102 on the first floor of the Gordon D. Schraber Sacramento County Courthouse at 720 9th Street in downtown Sacramento.
Assuming you have already paid the first-appearance fee with the first document you filed in the case, the fee for filing a motion is currently $60.
Current fees are available on the Sacramento County Superior Court's website, and are due at the time you file your motion unless you have been granted or file a waiver of your court fees. If you have already received a fee waiver, you do not need to request another waiver to file this motion. For more information on fee waivers, see the Step-by-Step guide on the topic on our website at http://www.saclaw.org/pages/fee-waiver.aspx.
STEP 6: OPPOSITION AND REPLY
If opposing counsel or the self-represented plaintiff opposes your request for relief from admissions, he or she may serve and file an "Opposition" at least nine court days prior to your motion date (CCP §1005(b)). Be sure to check your mail, and read any documents you receive carefully.
You may serve and file a reply to the plaintiff's Opposition (also written on pleading paper), at least five days prior to the motion (CCP §1005(b)). This reply should carefully address any points made by the Opposition, especially if that point was not originally addressed in your motion.
STEP 7: TENTATIVE RULINGS
Pursuant to Local Rule 1.06, the court will make a tentative ruling on the merits of your matter by 2:00 p.m. the court day before the hearing. You may read the tentative ruling online or may obtain the tentative ruling over the telephone by calling (916) 874-8142 to have a deputy clerk will read the ruling to you. For information on how to view the tentative ruling online, see the Legal Resource Guide on the topic on our website at http://www.saclaw.org/pages/tentative-rulings.aspx.
Closely review the tentative ruling. Since you are asking the court for permission to withdraw your admissions and serve new or amended admissions, you are looking for your motion to be "GRANTED." If the court does not grant your request, your motion will be "DENIED." Even if your request is granted, be sure to read the tentative ruling very carefully, since it will likely contain other important information such as if and when you need to serve proposed admissions.
If you are happy with the tentative ruling, you do not need to do anything. You won't have to go to court unless ordered to appear in the tentative ruling or unless the other side calls you and the court between 2:00 p.m. and 4:00 p.m. the court day before your hearing date to request an oral argument in front of the judge. If that happens, you should go to the court hearing and be prepared to argue why your motion should be granted.
If you are not happy with the tentative ruling, and wish to present arguments in front of the judge, you must contact the clerk at (916) 874-7858 (Department 53) or (916) 874-7848 (Department 54) and all opposing counsel and/or self-represented parties before 4:00 p.m. the court day before the hearing to let each know that you are requesting oral argument on the motion. If you do not call the court and all opposing counsel and/or self-represented parties by 4:00 p.m. on the court day before the hearing, no hearing will be held. If neither you nor the opposing counsel or self-represented party requests oral argument, the court will simply make the tentative ruling the order of the court.
Visit the Sacramento County Civil Self-Help Center, located in the Sacramento County Public Law Library. Same-day appointments are made in-person by lottery at 8:30 a.m. Monday through Friday. The Civil Self-Help Center also offers two Discovery sessions:
Introduction to Written Discovery Class
1:30 pm – 3:30 pm, 1st & 3rd Thursdays.
Come to understand what discovery is, how to answer questions you received by mail, and how you can use discovery yourself.Bring a USB flash drive to download sample forms. Arrive by 1:20 p.m.
1:30 pm – 3:30 pm, 2nd & 4th Thursdays.
Work on your discovery requests or responses in this drop-in computer lab. Bring your USB flash drivewith your requests or responses. No entrance after 3:15 pm. Lab closes promptly at 3:30 p.m. The Introduction to Written Discovery Classis a prerequisite for the Discovery Lab.
FOR MORE INFORMATION
At the Law Library:
For more details of the law and procedure, see:
California Civil Discovery Practice Vol. 2, § 9.82 et seq. KFC 1020 .C35
Electronic Access: On the Law Library computers, using OnLaw.
California Practice Guide: Civil Procedure Before Trial Vol. 2, Chap. 8G. KFC 995 .W4
Electronic Access: On the Law Library computers, using Westlaw Next.
California Forms of Pleading and Practice Vol. 16, Chap. 196. KFC 1010 .A65 C3 (Ready Reference)
Electronic Access: On the Law Library computers, using the Matthew Bender CD.
California Civil Practice: Procedure Vol. 2A, Chap.13. KFC 995 .A65
Electronic Access: On the Law Library computers, using Westlaw Next.
California Points and Authorities KFC 1010 .B4 (Ready Reference)
Vol. 8, Chap. 86, "Discovery: Requests for Admissions."
Electronic Access: On the Law Library computers, using the Matthew Bender CD.
IF YOU HAVE QUESTIONS ABOUT THIS GUIDE, OR IF YOU NEED HELP FINDING OR USING THE MATERIALS LISTED, DON'T HESITATE TO ASK A REFERENCE LIBRARIAN.
Templates of Motion for Relief from Admissions
Sample Notice of Motion and Motion (Page 1)
Sample Notice of Motion and Motion (Page 2)
Sample Memorandum of Points and Authorities (Page 3)
Sample Memorandum of Points and Authorities (Page 4)
Sample Declaration (Page 5)
Sample Declaration (Page 6)
Sample Declaration (Page 7)
Sample Declaration (Page 8)