Wilcox v. Birtwhistle

Wilcox v. Birtwhistle (1999) 21 Cal.4th 973 involved a medical malpractice case. Shortly after answering the complaint, the defense sent out respondent's requests for admissions (RFA's). The plaintiff neglected to file responses. The defense moved to have the RFA's deemed admitted. The plaintiff did not oppose the motion, but did serve responses before the hearing. However, the responses were unverified, so the trial court disregarded them and granted the motion to deem the RFA's admitted. Several weeks later, the plaintiff engaged new counsel, who prepared properly verified responses, and moved for relief. Attached was a declaration from the former counsel acknowledging his fault in attending to the RFA's. The court denied relief based on appellate cases that held relief under Code of Civil Procedure section 2033, subdivision (m) only applied to amend or withdraw responses that were actually filed, and did not apply to a situation where a party failed to file any responses. The Court of Appeal disagreed, and reversed the trial court. Faced with conflicting appellate court decisions on the identical issue, our Supreme Court granted review to resolve the matter. The Supreme Court held that relief under section 2033, subdivision (m) applied not only where a party wished to amend or withdraw responses that were made, but also where a party had failed to respond at all.