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Tim Kowal     April 24, 2020

The judicial admission is a simple concept: when you take a position in a pleading, discovery response, or open court, you're stuck with it. But whenever you see such a plain and sensible rule, expect to find enough exceptions to fill a volume.

For a while, things seemed to go all right. As recently as 2010, the Court of Appeal for the Sixth District of California held unequivocally that "a pleaded fact [i.e. in a complaint] is conclusively deemed true as against the pleader." (Dang v. Smith (2010) 190 Cal.App.4th 646, 657.) And in 2012, Thurman v. Bayshore Transit Management, Inc., 203 Cal.App.4th 1112 at page 1155, the Fourth District held "the trial court may not ignore a judicial admission in a pleading, but must conclusively deem it true as against the pleader." So far so good.

But in 2013, the Second District Court of Appeal held that "not every factual allegation in a complaint automatically constitutes a judicial admission." (Barsegian v. Kessler & Kessler (2013) 215 Cal.App.4th 446, 452.) Instead, a judicial admission "is ordinarily a factual allegation by one party that is admitted by the opposing party." That is, it is less one party's admission than it is a joint stipulation.

What to make of this apparent retelling of the doctrine?

The logic underlying the Second Appellate District's opinion appears flawed; it contends, for example, that if the Dang court's interpretation were true, "a plaintiff would conclusively establish the facts of the case by merely alleging them, and there would never be any disputed facts to be tried." (Id.) But as the Barsegian court itself noted, a judicial admission is a "conclusive concession[] of the truth...by the party whose pleadings are used against him or her." (Id. at 451 (citing Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 746).) In other words, the doctrine may be used against the pleader, but not the responsive party. Simply pleading facts would not, as the Barsegian court incorrectly implies, "conclusively establish the facts of the case."

As retired Judge Michael Marcus helpfully points outBarsegian "misses the point that judicial admissions also occur when language is inconsistent with and not in support of a proponent's position." In this way, Judge Marcus explains, a judicial admission is "like self-serving hearsay, which generally has no exception for its admissibility since it is inherently untruthful, an allegation favorable to the party asserting it is just that - a claim that will have to be proven at a contested hearing. In contrast, an inconsistent statement is admissible hearsay," as the Dang court explained.

One wonders how the Barsegian court so obviously misapplied the law. We would posit the Barsegian decision might have been driven by equitable more than legal concerns. Buried later in the opinion, for example, is a discussion about how the moving parties sought to bind the pleading party to its judicial admissions at one point in the case, while disclaiming the truth of said admissions later in the case. It appears the Barsegian court disliked this attempt to blow hot and cold with the doctrine. Unfortunately, its response throws a perfectly sensible and intelligible doctrine into confusion.

Hard cases not only make bad law, they ruin good law.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
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