Posts Tagged ‘pleadings’

Mediation Message No. 67

BE CAREFUL WHAT YOU PLEAD

This month’s Mediation Message is about the conclusive effect of statements in pleadings, which is relevant to mediations because the consequences of careless language in complaints and answers can have an impact on settlement discussions.

The well-recognized concept of judicial admissions was raised anew in Dang v. Smith (2010) 190 Cal.App.4th 646 which reminded that “statements in a pleading are always admissible against the pleader to prove the matter asserted—as is any other statement by a party.” Such statements are “‘a conclusive concession of the truth of [that] matter,’ thereby ‘removing it from the issues.’ (Citation.) In other words, a pleaded fact is conclusively deemed true as against the pleader.” (Id. at p. 657.)

The earlier case of Valerio v. Youngquist Construction (2002) 103 Cal.App.4th 1264 noted that an admission in a pleading (in that instance, an answer) is not evidence; instead “It is a waiver of proof of a fact by conceding its truth, and it has the effect of removing the matter from the issues. Under the doctrine of ‘conclusiveness of pleadings,’ a pleader is bound by well pleaded material allegations or by failure to deny well pleaded material allegations. (Citations.)” ¶ (In the case of a judicial admission) “’the facts alleged must be assumed to exist. Any finding adverse to the admitted facts drops from the record, and any legal conclusion which is not upheld by the admitted facts is erroneous. (Citations.)’ ‘When allegations in a complaint are admitted by the answer (a) no evidence need be offered in their support; (b) evidence is not admissible to prove their untruth; (c) no finding thereon is necessary; (d) a finding contrary thereto is error.’” (Id. at p. 1271; see also Walker v. Dorn (1966) 240 Cal.App.2d 118, 120 which discussies the distinction between evidentiary and judicial admissions.)

Judicial admissions can be contradicted by amendment “provided the request to do so is supported by a ‘showing … of mistake or other excuse for changing the allegations of fact.’” (Dang v. Smith, supra, at p. 659, fn. 8.)

Dang and its predecessors remind litigators to be careful what they allege in their pleadings because careless wording can come back to haunt the unwary.

Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067
(310) 201-0010

Copyright Michael D. Marcus, March 2011

Please visit my website at www.marcusmediation.com for information about my mediation and arbitration background and experience. Copies of my previous Mediation Messages and Arbitration Insights are available by going to the articles link on the website.