Opinion
Defendants appeal from a summary judgment that was primarily based upon matters deemed admitted arising from an improper response to plaintiff’s request for admissions. Defendants claim that the trial court abused its discretion in denying their motion for relief from default in responding to the request for admissions. 1 For the reasons that follow, we shall reverse with directions.
Statement of Facts
On October 2,1981, plaintiff filed a verified complaint against defendants for an accounting, breach of fiduciary duty, constructive trust, breach of contract, quantum meruit, money had and received, and fraud and deceit. On November 6, 1981, the defendants filed a verified answer to the complaint.
On February 3,1984, plaintiff filed his first motion for summary judgment based on defendants’ failure to respond to plaintiff’s first set of requests for admissions. This motion was successfully opposed by defendants’ attorney on the grounds that the warning required by Code of Civil Procedure 2 section 2033 had not been appropriately placed with the request for admissions.
On September 5, 1984, plaintiff propounded a second set of requests for admissions to defendants. On October 9, 1984, defendants served plaintiff’s attorney with their responses to the second set of requests for admissions. In submitting defendants’ responses, defendants’ attorney mistakenly believed that he could verify the responses for defendants, Bill Vera and Raul Gomez, who were out of the county where defendants’ attorney has his office. Defendants’ attorney also mistakenly believed that defendant, Michael Ramirez, could verify the responses of the other defendants, since *327 Ramirez had been given a power of attorney by the remaining defendants to sign court documents.
After being notified by plaintiff’s attorney on October 24, 1984, that the verifications were improper and that the requests for admissions were thereby deemed admitted, defendants’ attorney on Nоvember 27,1984, filed a motion for relief from default under section 473. Attached to the motion for relief were the previously submitted responses to the second set of request for admissions.
On January 15, 1985, the trial court denied the motion for relief without prejudice, on the ground that no excusable neglect was shown by defendants. Thereafter, on May 17,1985, plaintiff filed a motion for summary judgment.
After finally being notified by their attorney in May 1985, that no further representation would be taken, defendants substituted present attorneys on June 28, 1985. Immediately thereafter, on July 12, 1985, defendants’ new attorneys filed a motion for reconsideration. In support of their motion for reconsideration, the defendants alleged that, in the period following the court’s denial of their motion for relief on January 15, 1985, their attorney misled them as to his representation of the cases, specifically with respect to the need to file responses to request for admissions, the nature and effect of a default to request for admissions, and the appropriate procedures for overturning a denial of a motion for relief. Attaсhed to the motion and supplemental declarations were properly verified responses of all defendants to the second set of request for admissions.
On August 5, 1985, the trial court denied defendants’ motion for reconsideration and granted plaintiff’s motion for summary judgment. This appeal followed.
Discussion
A summary judgment is proper only if there is no triable issue of fact and, as a matter of law, the moving party is entitled to judgment. (§ 437c.) In reviewing a summary judgment, the appellate court is limited to the facts shown in the affidavits and those admitted and uncontested in the pleadings. Its function is to determine only whether the facts as shown give rise to a triable issue of fact. Moreover, the moving party’s papers are strictly construed while those of the opposing party are liberally construed.
(Gray
v.
Reeves
(1977)
*328 In 1973, amendments were made to section 437c to liberalize the use of the summary judgment procedure, specifically recognizing the use of discovery matters by the trial court in determining whether to grant or deny summary judgment. In the instant case, the trial court’s determination that there was no triable issue of fact was based primarily on matters deemed admitted against defendants because of their failure to properly respond to the second set of requests for admissions of plaintiff. Without the deemed admitted matters, plaintiff would not have been entitled to summаry judgment.
Section 2033, regarding requests for admissions, provides the mechanism whereby one party to a lawsuit may request that another party admit the genuineness of specified documents or the truth of certain facts.
(Elston
v. City of Turlock (1985)
Where the party served with a request for admissions fails to respond within 30 days, the propounding party may serve the nonresponsive party with notice that the genuineness of the documents or the truth of the facts alleged is deemed admitted. The nonresponsive party then has 30 days to move for relief from default under section 473. 3
Sеction 473 provides that the trial court may “relieve a party or his or her legal representative from a judgment, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise or excusable neglect.” A motion seeking relief lies within the sound discretion of the trial court and will not be disturbed except for a trial court’s abuse of discretion.
(Weitz
v.
Yankosky
(1966)
Section 473 is liberally construed because the law strongly favors trial and disposition on the merits. (See 8 Witkin, Cal. Procedure (3d ed. 1985) Attack on Judgment in Trial Court, § 180, p. 582.) This is particularly true where relief is sought from a failure to respond to requests for admissions.
(Carli
v.
Superior Court
(1984)
In the case at bench, defendants’ attorney timely sought relief under section 473, on the grounds that his mistaken belief regarding the verifications to the responses for the requests for admissions was excusable neglect. The trial court denied relief, stating that there was “no excusable neglect.”
It is well settled that relief may be granted for mistake of law by a party’s attorney. (See 8 Witkin,
supra,
§ 150, p. 551.) An honest mistake of law is a valid ground for relief where a problem is complex and debatable.
(A & S Air Conditioning
v.
John J. Moore Co., supra,
Defendants’ attorney’s mistake is excusable if an attorney, given the state of the law on the issue at the time, reasonаbly could have concluded sections 2033 and 446, allowing for attorney verification of pleadings in
*330
certain instances, permitted responses to a request for admissions to be verified by persons other than the party to whom the request is directed. Under section 446, the verification may be by the party’s attorney or any other person when (1) the parties are absent from the county where the attorney has his office; (2) the parties are from some cause unable to verify; or (3) the facts are within the knowledge of the attorney or other person. (§ 446; see 4 Witkin, Cal. Procedure,
supra,
Pleading, § 413, p. 459; also see
Bittleston Law etc. Agency
v.
Howard
(1916)
In the instant case, defendants’ attorney verified responses on behalf of two defendants who were unable to sign since they were out of the county where defendants’ attorney has his office. The other responses were verified by a party defendant who was given the power of attorney to sign court documents on behalf of the other defendants.
Prior to 1986, there was no case authority specifically holding that sеction 2033 required responses to request for admissions be verified by the party to whom the request was directed.
4
In fact,
Chodos
v.
Superior Court
(1963)
215
Cal.App.2d 318 [
From its literal reading, section 2033 merely requires a verification in the form of a “sworn statement.” The section does not specify the form of verification to be employed. This lack of speсificity unquestionably may have caused some doubt about the state of the law. For example, one of the major authoritative reference works which attorneys routinely consult indicated in 1985, when the motion for relief was heard and decided, that section 2033 *331 allowed attorney verifications. (14 Grossman & Van Alstyne, Cal. Practice (1972) Requests for Admissions, § 826, pp. 328-329.) There, the authors stated: “Section 2033 does not specify who is to verify the response. It is arguable that an attorney verification should suffice, since the statute does not preclude this and presumably the response still would be binding on the party. [Fn. omitted.]” (Ibid.; also see 3 DeMeo & DeMeo, Cal. Deposition and Discovery Practice (1986) Admission of Facts, 1i 12.01(38), p. 12.01-80.)
Additionally, in considering rule 36 of the Federal Rules of Civil Procedure (28 U.S.C.), on which section 2033 is bаsed, federal courts have allowed verifications by persons other than the party to whom the request was directed. (See
United States
v.
Taylor
(W.D.La. 1951)
While the above authorities establish that other methods оf verification may be permissible, other authorities have been silent on who is required to verify responses to request for admissions. (See, e.g., 2 Hogan, Modem Cal. Discovery (3d ed. 1981) Discovery in Civil Cases, § 9.08—9.12, pp. 146-162; 2 Witkin, Cal. Evidence (3d ed. 1986) Discovery and Production of Evidence, Request for Admissions, § 1553, pp. 1505-1506; Law Departments Policy Manual of the Los Angeles Superior Court (1985) rule 345, pp. 44-45.)
Evеn the authorities cited by plaintiff", in opposition to defendants’ motion for relief, did not affirmatively establish that propounded parties are the only persons who can verify responses to request for admissions. To the contrary, the authorities cited do not even address the issue of who is required to verify responses.
For example, sections 420 and 422.10 deаl specifically with what constitutes pleadings and not with verification requirements. Additionally, there is no section 466 in California Code of Civil Procedure, as cited by plaintiff. 6
In the only case cited by plaintiff,
Kaiser Steel Corp.
v.
Westinghouse Elec. Corp.
(1976)
Finally, plaintiff cited former section 25 IB of the Discovery Policy Manual of the Los Angeles Superior Court as part of his оpposition to the defendants’ motion for relief from default in failing to properly respond to the request for admissions. However, that section dealt only with interrogatories and provided in part that “[a]nswers to interrogatories are not within the purview of CCP Section 446 and may not be verified by counsel when the client is out of the county.” Moreover, this sectiоn has been renumbered 325(b) and is presently contained in the Law Departments Policy Manual of the Los Angeles Superior Court, supra, at page 36.
The requirements dealing with requests for admissions were formerly in section 270 of the Discovery Policy Manual of the Los Angeles Superior Court, and are now contained in section 345, pages 44-46, of the Law Departments Policy Manual of the Los Angeles Superior Court. Neither section, however, makes any mention of any specific form of verification to be employed. Rather, the section merely requires a “sworn statement.”
Thus, we can safely say that at the time defendants’ motion for relief was heard and decided, the law on who may verify responses under section 2033 was unsettled. It is therefore apparent that defendants’ attorney made an honest mistake of law, justifying relief under section 473. (See
Fidelity Fed. Sav. & Loan Ass'n
v.
Long, supra,
While a mistake in law may warrant relief from default, there are certain procedural requirements that must be satisfied. After the deemed admitted notice is served, the nonresponsive party has 30 days to make a motion for relief from default under section 473. (§ 2033;
Dolin Roofing & Insulation Co.
v.
Superior Court
(1984)
*333
One seeking relief under section 473 must also attach to his moving papers his proposed responses to the request for admissions. The requirеment for submission of proposed responses was first established in
Dolin Roofing & Insulation Co.
v.
Superior Court, supra,
In the instant case, defendants’ attorney did attach responses to his motion for relief under section 473. These were the resрonses that plaintiff contended were improperly verified. However, since there was uncertainty in the law regarding who may verify responses to request for admissions, we find that defendants’ attorney did adequately comply with the attachment requirement.
Since the section 473 motion for relief was properly before the court and there was a reasоnable and justifiable basis for defendants’ attorney’s mistake in law, we determine that the trial court’s denial of the motion for relief was an abuse of its discretion. We therefore conclude that the 473 motion should have been granted and the motion for summary judgment denied.
Disposition
Accordingly, the summary judgment is reversed. The trial court is directed to vacate its order denying the seсtion 473 motion, to grant such motion, and to file defendants’ responses which were attached to the motion for reconsideration and properly verified. Each party is to bear his own costs on appeal.
Lillie, P. J., and Johnson, J., concurred.
Notes
An order denying a motion to vacate a default may be reviewed on appeal from a judgment.
(Winter
v.
Rice
(1986)
Unless otherwise indicated, all statutory references are to the Code of Civil Procedure.
Section 2033 provides in pertinent part: “Upon failure of a party served with requests for admissions... the party making the request may serve upon the othеr party a notice in writing by certified or registered mail, return receipt requested, notifying the party so served that the genuineness of the documents or the truth of the facts has been deemed admitted. Once the notice is served, the party upon whom the notice is served shall not have the right to apply for relief under the provisions of Section 473 unless a motion requesting relief is served and filed within 30 days after service of the notice.”
It was not until 1986, in
Steele
v.
Totah
(1986)
Additionally, new rule 26(g) of the Federal Rules of Civil Procedure (28 U.S.C.) requires that every discovery response must be signed by the party’s attorney.
Assuming plaintiff meant section 446, the applicability of section 446 to section 2033, as previously noted, was uncertain prior to 1986.