Fact That Seizure Theory Never Told Until After Suit Filed Was Not Determinative.
In Mulhern v. Dungan, Case No. C066731 (3d Dist. Sept. 17, 2012) (unpublished), defendant denied two requests for admissions acknowledging negligence in a car accident with plaintiff. After this accident, defendant apparently was in another rear ender after which a doctor expressed the opinion defendant had partial seizure syndrome or epilepsy in that accident. Although not indicating seizure as a theory in the first accident until after suit was filed, defendant did adduce proof of this possible seizure in plaintiff’s suit to recover from injuries incurred in the first accident. Plaintiff prevailed, and then moved to recover $21,650 in costs-of-proof sanctions under Code of Civil Procedure section 2033.240 (a statutory provision allowing an adverse party to recover fees and costs in proving a denied RFA under certain prescribed circumstances).
The lower court denied the costs-of-proof sanctions, garnering an appeal by plaintiff.
The Third District affirmed. Defendant did have a reasonable, good faith belief behind the denials based on the testimony by the latter physician that a seizure might have caused the first accident. (Laabs v. City of Victorville, 163 Cal.App.4th 1242, 1275-1276 (2008).) Also, defendant had no duty to voluntarily update RFA responses, even though plaintiff did not aid this argument by not requesting any updated or supplemental responses. (Burch v. Gambos, 82 Cal.App.4th 352, 359 (2000) [no duty under California’s Civil Discovery Act to supplement discovery responses, which is more so the case in the federal system].)