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What You Admit Can Haunt You

PGP Mediation Blog by Phyllis G. Pollack

Oftentimes, during litigation, a party will serve a set of requests for admission on another party asking the latter to admit or deny certain facts or that certain documents are genuine. To the extent that the responding party admits the request, the response is deemed conclusive, and the fact or genuineness of the document is a “given” that need not be proven at trial.

Thus, admitting a fact can come back to haunt a party at trial. Ford Motor Company found this out in Daniel Joyce v. Ford Motor Company, in which the Third Appellate District of the California Court of Appeal (Case No. C064453 – September 6, 2011) reversed the nonsuit entered by the trial court in favor of Ford partially because of its admission and remanded the case back to the trial court for a limited trial on the issue of civil penalties. (Joyce v. Ford)

Plaintiff Joyce filed suit under the Song-Beverly Consumer Warranty Act (“Act”) also known as the “lemon” law, after taking his new 2005 Ford F-250 truck in for repairs many times but getting no satisfaction. He wanted Ford to repurchase or replace the truck. Ford refused.

During the litigation, Joyce, a licensed contractor, admitted that he used the truck as his “work truck” in his own excavation business. (Id. at p. 3). The truck weighed 6,787 pounds and had a gross vehicle weight rating of 10,000 pounds. (Id.)

For a vehicle to quality under the Act, it must be a “new motor vehicle” defined as one that “. . .is bought or used primarily for personal, family or household purposes.” (Id. at p. 13 – Civil Code §1793.22(e)(2).) But this section also defines a “new motor vehicle” to be one that has a gross vehicle weight under 10,000 pounds that is bought or used primarily for business purposes. . . .” (Id.)

During the litigation, Plaintiff Joyce served a set of requests for admission upon Ford asking it, among other things, to admit that his F-250 truck qualified as a “new motor vehicle” under the Act. Ford admitted so.

But then, at trial, Ford moved for a nonsuit on the ground that the truck did not qualify as a “new motor vehicle” under the Act as it was used primarily for business and had a gross vehicle weight rating (vs gross vehicle weight) of 10,000 pounds.

After the jury returned a verdict in favor of Plaintiff, awarding him $35,323.87, the trial court overturned it, by granting Ford’s motion for a nonsuit ruling that as a matter of law, the F-250 did not qualify as a “new motor vehicle” under the Act, despite Ford’s admission to the contrary.

The appellate court reversed. Initially, it noted that one of the applicable California statutes governing admissions states that “[a]ny matter admitted in response to a request for admission is conclusively established against the party making the admission. . . .” (Id. at p. 16 – Code of Civil Procedure §2033.410(a).) Thus, when Ford admitted that the F-250 was a “new motor vehicle” under the Act, this fact was conclusively established; Ford was estopped to argue the contrary (Id. at p. 16-17).

As importantly, the appellate court found that there was substantial evidence that the F-250 did, indeed, qualify as a “new motor vehicle” under the Act. Although Plaintiff used the F-250 primarily for business purposes, rather than personal, family or household purposes, the Act allows for this in its definition of “new motor vehicle.” Further, the court, looking at the plain language of the statute and its legislative history, determined that this definition clearly speaks in terms of actual gross weight of the vehicle being under 10,000 pounds; not in terms of its gross vehicle weight rating. (“Gross vehicle weight” refers to the overall total amount that the vehicle weighs or the vehicle curb weight plus cargo, plus passengers. (Id. at pp. 20, 21). “Gross vehicle weight rating” refers to “the maximum allowable weight of the fully loaded vehicle (including all options, equipment, passengers and cargo.”) (Id.)) Here, the gross vehicle weight of the F-250 was 6,787 pounds, or well under the 10,000 pound limit. The court concluded that the legislative history intended to refer to the gross vehicle weight and not to the gross vehicle weight rating. Further, while Ford argued the term “gross vehicle weight” to be vague and ambiguous and possibly referring to “gross vehicle weight rating”, the appellate court rejected this argument. It found that not only Ford’s own consumer oriented literature but similar literature of both the Department of Transportation and many other automotive manufacturers clearly delineated the difference between “gross vehicle weight” and “gross vehicle weight rating” (as set out above). In short, the appellate court disagreed with Ford’s arguments. (Id. at pp. 18-25).

Finally, the court determined that “. . .there was substantial evidence to support a finding that Ford’s failure to comply with the Act was “willful” entitling plaintiff to a limited jury trial on whether a civil penalty should be assessed against Ford for its refusal to repurchase or replace the truck after numerous unsuccessful attempts to fix it. (Id. at pp. 25-29). The court remanded the case back to the trial court for this purpose.

I have always heard about how powerful requests for admission can be as a tool in litigation, especially at trial. They often come up during a mediation; one party seeks to leverage the fact that the other party admitted such and such. The other party usually makes little of it, discounting the “admission” as much as possible. But now, this case is a reminder that requests for admission are, indeed, powerful, do work and must be taken seriously during a mediation: an admission can, indeed, come back to haunt the admitting party at trial.

. . .Just something to think about!


Phyllis Pollack

Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as… MORE >

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