Metropolitan News-Enterprise


Wednesday, January 14, 2015


Page 1


C.A. Bars Use of Requests-to-Admit Responses for Impeachment




A party’s denials, or lack of admission, of requests for admissions cannot be used for impeachment, the First District Court of Appeal ruled yesterday.

The panel overturned a judgment of more than $1.2 million in favor of a BMW salesman who was injured during a test drive, allegedly due to the defendant’s reckless driving. Justice Terence Bruiniers, writing for Div. Five, said the cumulative effect of errors by the trial judge and misconduct by the plaintiff’s counsel likely affected the verdict.

The salesman, Kenneth Gonsalves, sued Ran Li after a 2008 incident that the plaintiff claimed left him with back and neck pain that ultimately required surgery after less intrusive treatments failed to provide relief. Li was driving, with his father Xiaoming Li sitting in the front and Gonsalves in the back, when the driver lost control of the vehicle on a highway on-ramp in Concord.

The vehicle spun out, hit a guardrail, and reversed direction after Li pushed the button to activate the BMW M3’s “M Drive.”

The M Drive, according to Car and Driver magazine:

“[Is] a set of fancy buttons on the side of the center console that allow the driver to set the throttle response either to Normal, Sport, or Sport Plus. It also adds a special M Dynamic Mode for the stability-control system. All of these functions can be programmed to a custom combination of settings that is activated by the M Drive button on the steering wheel, which will surely impress your friends.”

Reckless Driving

Gonsalves claimed that Li had been driving on the highway at speeds up to 120 miles per hour, weaving in and out of traffic, then exited the highway, but then decided—on his own—to drive back onto the highway and push the M button. Li denied that he was driving that fast, or that he was weaving, and claimed that the only reason he went back on the highway to test the M Drive was that the salesman suggested he do it.

The M Drive, experts said, may have rendered the vehicle less stable, contributing—along with Li’s speed at the time—to the driver’s loss of control as he accelerated into a turn.  

Li claimed that he and his father only went to the dealership to test drive a less-powerful, automatic-transmission BMW 355, but that after they did so—sharing the driving—Gonsalves talked them into trying out the M3. Gonsalves said the pair, in particular the father, insisted they preferred a stick shift, and that he feared he may have insulted the father, who claimed to be a wealthy man, and thus allowed the son to test drive the more powerful vehicle, which he normally would not have done without first agreeing on a price and verifying ability to pay.

Defense Contention

The defense disputed the plaintiff’s claim that his injuries were entirely a result of the collision, arguing that Gonsalves—53 at the time of the incident—was suffering from degeneration typical of persons his age.

Li was called to the stand as an adverse party witness by Gonsalves’ lawyer. After Contra Costa Superior Court Judge Laurel Brady instructed the jury on requests for admissions, plaintiff’s counsel told the jury that Li was asked to admit that “at the time as you began your turn from Concord Avenue onto the Highway 242 northbound on-ramp you were driving too fast for the conditions,” and that Li replied that he lacked sufficient information to admit or deny.

Counsel then asked a series of questions about that response, and others, and asked him about them again on cross-examination, during which Li responded:

“I stand by my admissions that I signed.”

At the conclusion of Li’s testimony, the judge—again over defense objection—admitted in evidence the full sets of the requests for admissions and special interrogatories that asked Li to explain any denials to the requests as well as Li’s responses to both.

Closing Argument

In closing argument, plaintiff’s counsel urged the jury to consider Li’s failure, in response to the requests to admit, to acknowledge that his pressure on the accelerator was a substantial factor in causing the accident, as evidence of his failure to take responsibility for Gonsalves’ injuries.

Bruiniers, writing for the Court of Appeal, said the use of responses to requests for admissions, other than admissions themselves, to impeach a party’s credibility is not permissible.

While there is a paucity of California authority directly on point, Bruiniers said, the most analogous case is Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255, in which the court condemned the practice of asking, at deposition, “legal contention questions,” such as by directing the witness to state “all facts that support the affirmative defense”; “the identity of each witness who has knowledge of any facts supporting the affirmative defense”; or the identity of “any documents that pertain to the facts or witnesses.”

Bruiniers explained:

“While not directly on point, we agree that the underlying concerns discussed in Rifkind apply to the use of qualified denials to RFA’s in the examinations here.  Li was asked to explain ‘by memory and on the spot’ and without the ability to consult with his attorney why he took the legal position that he could not admit or deny certain RFA’s without further inquiry.  And he was asked to do this not in a deposition, as in Rifkind, but in front of the jury.”

Authority in other states, he added, supports Li’s position.

The justice went on to say, in unpublished portions of the opinion, that the trial judge also erred in allowing plaintiff’s counsel to question Li about causation of the accident and in admitting evidence of Li’s speeding tickets, and that plaintiff’s counsel committed misconduct by restating that he had represented a paralyzed child in prior litigation despite a prior ruling that the statement was inadmissible, and by referencing Gonsalves’s supposed obligation to reimburse the workers’ compensation system from his recovery at trial, a fact not in evidence.

The cumulative effect of the errors, Bruiniers said, likely impacted the verdict because the case was a close one and hinged largely on credibility. Had the jury accepted Li’s account, the jurist reasoned, it might have found that he was not negligent, or that Gonsalves was contributorily negligent. In addition, had jurors not been improperly told that the plaintiff would have to pay back workers’ compensation benefits, they likely would have returned a smaller verdict, the justice said.

The case is Gonsalves v. Li, A140284.


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