Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RIC376035 Craig G. Riemer, Judge.
Lenore Albert, in propria persona, for Plaintiff and Appellant.
Horvitz & Levy, Peter Abrahams, Alicia A. Pell; Cihigoyenetche, Grossberg & Clouse and Katharine L. Spaniac for Defendant and Appellant.
OPINION
RICHLI J.
On June 1, 2001, plaintiff Lenore Albert was injured in a car accident on the 91 Freeway. The driver of the other car was Renita Lewis; the passenger in the other car was Geraldine Moss. Moss and Lewis were just coming from the business office of Satellite Management Co. (Satellite) in Santa Ana. Moss was an employee of Satellite. Lewis was Moss’s daughter-in-law; Moss had asked her to drive because Moss was feeling sleepy that day.
Albert settled with Lewis, Moss, and other individual defendants, leaving Satellite as the only defendant at trial. A jury found that, when the accident occurred, Moss was acting within the course and scope of her employment. It therefore awarded Albert $1,850,800 against Satellite. The trial court entered judgment on the jury’s verdict.
Satellite moved for a new trial, based on asserted juror misconduct. The trial court denied the motion with respect to liability but granted it with respect to causation and damages.
Albert has appealed from the order granting a partial new trial; Satellite has cross-appealed from the judgment. Satellite contends that the trial court erred by finding that Satellite had made a judicial admission of facts tending to show that Moss was acting in the course and scope of her employment and by instructing the jury to disregard any contrary evidence.
We agree with Satellite. We will hold that the trial court erred by instructing the jury that it had to disregard evidence contrary to Satellite’s supposed judicial admission and that this error was prejudicial. Hence, we will reverse the judgment. We need not consider Albert’s appeal; even if we were to agree that the trial court erred by granting a partial new trial based on juror misconduct, we would still have to reverse the judgment and remand for a new trial. Thus, Albert’s appeal is moot. (Wold v. Luigi Consentino & Sons (1952) 109 Cal.App.2d 854, 856.)
I
SATELLITE’S CROSS-APPEAL
Satellite contends that the trial court erred by instructing the jury that it had to accept certain facts tending to show that Satellite was vicariously liable.
A. Additional Factual and Procedural Background.
1. Satellite’s motion for summary judgment.
Satellite filed a motion for summary judgment. In its separate statement, it listed as undisputed the fact that: “On June 1, 2001 Geraldine Moss was driving to the Satellite business office to collect her and other employees’ paychecks and paperwork.”
In support of this supposed fact, it cited the following deposition testimony of Geraldine Moss:
“Q Why were you on the freeway on June 1st, 2001?
“A I was going to my corporate office, which is in Santa Ana. And I was going there to pick up our payroll and stuff. Every month each manager goes out to the corporate office.”
In its memorandum of points and authorities, however, Satellite argued that it could not be held vicariously liable because the only person who acted negligently was Lewis, not Moss, and Lewis was not an employee of Satellite.
The trial court granted the motion and entered judgment in favor of Satellite.
Albert appealed. This court reversed; we held that Satellite could be held vicariously liable as long as Lewis acted negligently in the presence of, and therefore impliedly under the direction of, Satellite’s employee Moss.
2. Testimony at trial.
Moss worked for Satellite as the onsite property manager of an apartment complex in Rialto. Her husband Curtis Moss also worked for Satellite as the maintenance manager of the complex.
At trial, Moss testified that, on June 1, 2001, she went to Satellite’s office for the sole purpose of picking up an advance on her husband’s salary. She admitted that she sometimes went to the office in the course of her job, but only on “cutoff dates,” which normally fell on the 16th of the month. Thus, this could not have been her reason for going there on June 1, 2001.
Moss explained that at her deposition, she had been mistaken: “I got the two mixed up, the 1st and the 16th.” She stated, “ . . . I always call the first cutoff, and I call the 16th cutoff, so I get kind of confused.”
Tammy Trowbridge, Moss’s supervisor, testified that ordinarily, on the first of the month, it is important that an onsite manager remain onsite to collect rent. On June 1, 2001, however, she gave Moss permission to come to the office to pick up her husband’s paycheck.
Trowbridge also testified that the only time that an onsite manager might have to deliver paperwork to the office would be on cutoff dates, which fall on the 16th of the month; this could never happen on the first of the month.
3. The challenged instructions.
In the midst of trial, outside the presence of the jury, the trial court pointed out that, in connection with the motion for summary judgment, Satellite had listed it as undisputed that Moss had been on her way to Satellite to pick up her own and other employees’ paychecks and paperwork. It opined: “[I]t seems to me . . . that statements of undisputed facts in a moving party’s separate statement in support of a motion for summary judgment are judicial admissions; and that unless . . . relief is sought from that judicial admission, that that is binding on that party at trial. And, therefore, it seems to me that when it comes time to instruct the jury in this case, that I would be instructing them that contrary to some of the testimony that they heard during the trial, Geraldine Moss had gone to Satellite management that day to pick up her own and other employees’ paychecks and paperwork . . . .”
In response, both sides filed memoranda of points and authorities on the issue. Satellite pointed out that Moss’s deposition had been taken on July 9, 2003, whereas the complaint had not been served on Satellite (as a Doe defendant) until July 11, 2003. Thus, Satellite had not been represented at Moss’s deposition and had not had an opportunity to cross-examine her.
After hearing argument, the trial court ruled “that this is properly a judicial admission, that there is no factual basis presented to the court to justify relief from that admission. And, therefore, the court will be instructing the jury in accordance with the facts made by Satellite . . . in its motion for summary judgment.”
Accordingly, over Satellite’s objection, the trial court instructed the jury that:
“Lenore Albert must prove that Geraldine Moss was acting within the scope of her employment when Lenore Albert was harmed. Conduct is within the scope of employment if, A, it is reasonably related to the kinds of task that the employee was employed to perform; or, B, it is reasonably foreseeable in light of the employer’s business or the employee’s job responsibilities.
“Despite any testimony at trial to the contrary, you must accept the following fact as true: On June 1, 2001, Geraldine Moss was driving to the business office of Satellite . . . in Santa Ana to collect her and other employees’ paychecks and other paperwork.” (Italics added.)
As the trial court started to read the next instruction, Juror No. 1 interrupted and asked, “Your Honor, could you read the one before that again, please?” The trial court reread the challenged instruction. Juror No. 1 then asked:
“JUROR NO. 1: Your Honor, could we ask any questions of these facts you’re reading to us?
“THE COURT: If during deliberations you have questions, there will be forms in the package that you can write those questions out on and send them to me. And after meeting with the attorneys, we’ll try to answer those.
“JUROR NO. 1: Okay.”
4. Discussion following the verdict.
By special verdict, the jury found that Lewis was negligent and that Lewis’s negligence was a substantial factor in causing Albert’s damages. It also found, by a vote of 11 to 1, that “Geraldine Moss [was] acting within the scope of her employment when the collision occurred . . . .” Finally, it found that Albert’s damages totaled $1,850,800.
After the verdicts had been read and recorded and the jury had been discharged, there was this discussion:
“JUROR NO. 1: We had one question as a group, I believe. . . . [¶] . . . [¶] . . . You made a statement despite any testimony that you have heard to the contrary that Geraldine Moss was, in fact, picking up her paycheck, other employees’ paychecks, and other paperwork. What we were confused is we heard two witnesses say that they were not picking up that, that none of that was going on.
“THE COURT: Understood.
“JUROR NO. 1: So we were confused. Were witnesses allowed to commit perjury on the stand given your instructions?
“THE COURT: No, they were not. The reason that you heard something different on the stand compared to how I instructed you was that I ruled based on information that I discovered in the middle of trial that the defense had made certain factual concessions in prior court documents years ago. And over the defense’s vigorous objections, I held that they were bound by those factual concessions. And that is why, despite the evidence that you heard, I instructed you that you were to disregard that evidence and rely upon the factual concessions that I found the defense to have made. That is simply because I did not recognize that fact earlier; otherwise, those witnesses would not have testified or would not have testified on those subjects. But because I came to the realization regarding those admissions rather late in the process, it was after those witnesses had already testified, that’s why you were presented with the conflicting instructions in that I had to tell you specifically to disregard the particular witness.
“JUROR NO. 1: That’s how we read it.”
B. Discussion.
1. Judicial admission.
The trial court ruled that the facts listed as undisputed in Satellite’s separate statement were binding as “judicial admissions.”
“ . . . ‘“A judicial admission . . . is entirely different from an evidentiary admission. The judicial admission is not merely evidence of a fact; it is a conclusive concession of the truth of a matter which has the effect of removing it from the issues. . . .”’” (Troche v. Daley (1990) 217 Cal.App.3d 403, 409, quoting Walker v. Dorn (1966) 240 Cal.App.2d 118, 120.)
There are three main types of judicial admissions: (1) an admission of fact in a pleading (Castillo v. Barrera (2007) 146 Cal.App.4th 1317, 1324-1326); (2) a stipulation (Morningred v. Golden State Co. (1961) 196 Cal.App.2d 130, 137); and (3) a request for admissions that has been admitted or deemed admitted (Brigante v. Huang (1993) 20 Cal.App.4th 1569, 1578, disapproved on other grounds in Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 983, fn. 12).
By contrast, “an unsworn statement made as part of the points and authorities supporting a motion” is not a judicial admission. (Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27, 37; accord, Columbia Casualty Co. v. Northwestern Nat. Ins. Co. (1991) 231 Cal.App.3d 457, 474.) Accordingly, a respected treatise states: “The agreement in the separate statement that a fact is ‘undisputed’ is a concession only for purposes of the summary judgment motion. It is not evidence (because not under oath or verified); nor is it a judicial admission. [Citation.]” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2008) ¶ 10:194; see also Wright v. Stang Manufacturing Co. (1997) 54 Cal.App.4th 1218, 1224-1225, fn. 2.)
Here, Satellite listed the critical fact as undisputed, citing Moss’s deposition testimony. “[D]eposition answers are simply evidence. . . . [T]hey are considered and weighed in conjunction with other evidence. They do not constitute incontrovertible judicial admissions as do, for example, concessions in a pleading [citations], or answers to requests for admissions, which are specially designed to pare down disputed issues in a lawsuit. [Citation.]” (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1522.) In other words, Moss would have been free to controvert her own testimony. We see no reason why the fact that Satellite relied on Moss’s testimony should be any more conclusive than that testimony itself.
At oral argument, Albert argued that, because Moss could have corrected her deposition but failed to do so, it could properly be treated as a judicial admission. There is some authority for doing this in connection with a motion for summary judgment. (Mikialian v. City of Los Angeles (1978) 79 Cal.App.3d 150, 159-160; see also Wagner v. Glendale Adventist Medical Center (1989) 216 Cal.App.3d 1379, 1390-1391 [plaintiff’s attempt to correct deposition transcript was ineffective to prevent summary judgment].) At trial, however, the court cannot bar a party from contradicting its discovery responses unless “the failure to answer correctly in the first place prejudiced the other party and a continuance, or using the earlier answers for impeachment, would not cure the prejudice.” (Gordon v. Superior Court (1984) 161 Cal.App.3d 157, 166.) That was not the situation here.
Moreover, Satellite’s separate statement must be considered in context. Satellite could prevail on summary judgment if, and only if, it could eliminate any triable issue of material fact. (Code Civ. Proc., § 437c, subd. (c).) Given Moss’s deposition testimony, there was a triable issue as to whether she was acting in the course and scope of her employment; for purposes of the motion, Satellite had to accept that she was. Hence, the thrust of Satellite’s motion was that, even if Moss was acting in the course and scope of her employment, it was Lewis who was negligent, and Lewis was not Satellite’s employee.
Even statements that do qualify as judicial admissions are not necessarily conclusive for all purposes or for all time. For example, an admission in a pleading is a judicial admission in the proceeding in which the pleading is filed. However, an admission in a pleading is merely an evidentiary admission, not a judicial admission, in any subsequent proceeding. (Magnolia Square Homeowners Assn. v. Safeco Ins. Co. (1990) 221 Cal.App.3d 1049, 1061.) Thus, if Satellite’s admission was binding at all, it was binding only for purposes of the summary judgment motion. Once that motion was denied, it was no longer binding at trial.
Presumably, if Satellite’s summary judgment motion had included a boilerplate disclaimer that it was listing facts as “undisputed” solely for purposes of the motion, and that it reserved the right to contest any or all of those facts at trial, the trial court would have not have found any judicial admission. Thus, if we were to uphold the trial court’s ruling, we would be setting a trap for the unwary; only those parties not cagey enough to include such a disclaimer would be bound. But why should the presence or absence of an explicit disclaimer be controlling? Arguably, requiring a disclaimer would make sense in one situation — if, in the absence of a disclaimer, the opposing party would be misled. Albert, however, is not claiming that Satellite’s supposed admission misled or otherwise prejudiced her. Indeed, the challenged instruction was not even her idea; the trial court proposed it sua sponte.
Albert does contend that Satellite should be equitably estopped to deny its supposed admission. Equitable estoppel, however, requires detrimental reliance. (Pajaro Valley Water Management Agency v. Amrhein (2007) 150 Cal.App.4th 1364, 1383-1384.) Albert argues that she relied on the admission in opposing the motion for summary judgment, but we cannot see how this prejudiced her in any way.
Finally, even a true judicial admission may be set aside if it is the product of mistake or inadvertence. (Savage v. Pacific Gas & Electric Co. (1993) 21 Cal.App.4th 434, 441; Baker v. Ramirez (1987) 190 Cal.App.3d 1123, 1135.) Moss testified that her deposition testimony was simply mistaken. Trowbridge supported Moss’s claim of mistake. And once again, Satellite had simply accepted and relied on Moss’s deposition testimony; if Moss was mistaken, then a fortiori, Satellite was mistaken.
Albert cites Pang v. Beverly Hospital, Inc. (2000) 79 Cal.App.4th 986. There, the plaintiff claimed that she had been fired for taking time off work to care for her mother, in violation of the Moore-Brown-Roberti Family Rights Act (CalFRA). (Pang, at p. 988.) When she brought a motion for summary adjudication, she included statements of undisputed fact, as well as declarations and other evidence, to the effect that, due to her mother’s medical conditions, her mother had had to move but could not move on her own; accordingly, she had taken time off work to help her mother move. (Id. at pp. 991-992.) On its own motion, the trial court deemed the motion to be a motion by the defendant for judgment on the pleadings. It then granted the motion and entered judgment. (Id. at p. 989.)
The appellate court led off by stating: “In addition to the facts pleaded, we may consider matters that may be judicially noticed, including a party’s admissions or concessions which can not reasonably be controverted. [Citation.] At the request of both parties, we will do so here as to certain evidence placed before the trial court by the summary adjudication motion. Specifically, we will judicially notice the declarations of Pang and her sister, excerpts of Pang’s deposition testimony, and her separate statement of undisputed fact, to the extent they bear on her need for family leave. As our discussion below makes clear, these items constitute judicial admissions and concessions that are fatal to Pang’s CalFRA claim.” (Pang v. Beverly Hospital, Inc., supra, 79 Cal.App.4th at pp. 989-990, italics added, fn. omitted.)
This case is doubly distinguishable from Pang. First — and most obviously — both parties are not requesting that we accept the supposed admission; to the contrary, Satellite is kicking and screaming (and appealing). Second, Satellite’s admission is not one “which can not reasonably be controverted.” Satellite could and did controvert it, based on Moss’s trial testimony.
We therefore conclude that the trial court erred by treating Satellite’s statement of undisputed fact as a judicial admission.
2. Judicial estoppel.
Albert argues that the trial court’s ruling is supported by the doctrine of judicial estoppel. As already noted, the trial court characterized Satellite’s statement of undisputed fact as a judicial admission, not judicial estoppel. Nevertheless, in cases such as this, “we review the trial court’s result, not its reasons. [Citation.]” (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037, fn. 9.) Thus, if applying the doctrine of judicial estoppel would have had the same outcome, we may affirm.
“The doctrine of judicial estoppel precludes a party from taking inconsistent positions in judicial or quasi-judicial proceedings. [Citation.]” (Claxton v. Waters (2004) 34 Cal.4th 367, 379, fn. 3.) “‘Judicial estoppel is applied with caution to avoid impinging on the truth-seeking function of the court . . . .’ [Citation.]” (Jogani v. Jogani (2006) 141 Cal.App.4th 158, 175, quoting Teledyne Industries, Inc. v. N.L.R.B. (6th Cir. 1990) 911 F.2d 1214, 1218.) “Because of its harsh consequences, the doctrine should be applied with caution and limited to egregious circumstances. [Citations.]” (Gottlieb v. Kest (2006) 141 Cal.App.4th 110, 132.)
“The doctrine applies when ‘(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.’ [Citations.]” (Aguilar v. Lerner (2004) 32 Cal.4th 974, 986-987, quoting Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183.)
It should be immediately apparent that the third requirement — success in asserting the first position — is not satisfied here. “[I]n deciding whether to apply judicial estoppel, ‘courts regularly inquire whether the party [to be estopped] has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create “the perception that either the first or the second court was misled.” . . . Absent success in a prior proceeding, a party’s later inconsistent position introduces no “risk of inconsistent court determinations,” . . . and thus poses little threat to judicial integrity.’ [Citations.]” (Gottlieb v. Kest, supra, 141 Cal.App.4th at pp. 138-139, quoting New Hampshire v. Maine (2001) 532 U.S. 742, 750-751 [121 S.Ct. 1808, 149 L.Ed.2d 968].) Admittedly, the trial court did grant Satellite’s summary judgment motion. This court, however, reversed that ruling. Thus, Satellite won the battle, but lost the war.
More importantly, for purposes of judicial estoppel, success is not defined as merely prevailing; rather, it is defined as persuading a court to accept or adopt one’s position. Here, in granting summary judgment, the trial court did not in any way accept, adopt, or rely on the supposed fact that Moss went to the office to pick up other employees’ paychecks and paperwork. As already discussed, to grant summary judgment, the trial court did not have to accept this fact; it only had to accept that this fact was irrelevant. Thus, the trial court’s order granting the motion for summary judgment did not constitute “success” for purposes of judicial estoppel. (Gottlieb v. Kest, supra, 141 Cal.App.4th at pp. 142-148 [bankruptcy automatic stay did not constitute success where it was not premised on the fact asserted as judicial estoppel].)
Albert cites Uhrich v. State Farm Fire & Casualty Co. (2003) 109 Cal.App.4th 598. There, however, the court held that the plaintiff was judicially estopped to deny statements that she and her attorney had made in a successful attempt to obtain a judgment in a previous action. (Id. at pp. 607, 611-613.) As the court noted, “[T]he statements were . . . intended to induce the court to grant a judgment in the underlying case . . . and they achieved their intended effect.” (Id. at p. 613, italics added.) Here, by contrast, the requirement of success in asserting the first position is not satisfied.
And finally, as already discussed, the fifth requirement — absence of ignorance or mistake — also is not satisfied.
Albert argues that Satellite did not raise mistake below. That is incorrect. Counsel for Satellite specifically argued: “It is plain from the testimony that’s been presented at trial that these witnesses were simply mistaken as to the date that the accident occurred. They were thinking the 15th which is the cutoff date. It occurred on the first. We had simply no ability to cross-examine these witnesses to set the record straight.” (Italics added.)
We therefore conclude that judicial estoppel does not apply. Because Satellite’s statement of undisputed fact was neither a judicial admission nor judicial estoppel, it follows that the trial court erred by instructing the jury that it had to accept that fact and to disregard any contrary evidence.
3. Prejudice.
“[T]he existence of instructional error alone is insufficient to overturn a jury verdict. A defendant must also show that the error was prejudicial (Code Civ. Proc., § 475) and resulted in a ‘miscarriage of justice’ (Cal. Const., art. VI, § 13). [Citation.] ‘“[A] ‘miscarriage of justice’ should be declared only when the court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.”’ [Citation.]” (Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069, quoting Seaman’s Direct Buying Service, Inc. v. Standard Oil Co. (1984) 36 Cal.3d 752, 770.) “[A] ‘probability’ in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility. [Citations.]” (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 715.)
Here, the evidence on the issue of whether Moss was acting in the course and scope of her employment was closely balanced. On one hand, she testified essentially that she was not; this testimony was corroborated by her husband, as well as by Trowbridge. On the other hand, she was confronted with her deposition testimony. Yet, back on the first hand again, she explained that her deposition testimony was a mistake rather than a lie. It seems at least reasonably probable that, absent the challenged instruction, the jury would have believed her.
At oral argument, Albert argued that, even if Moss’s testimony at trial is accepted as true, Moss was still acting in the course and scope of her employment, because her duties included delivering paychecks to other employees, and her husband was another employee. “‘“Conduct is within the scope of employment only if the servant is actuated to some extent by an intent to serve his master.” [Citations.]’ [Citation.]” (Hendy v. Losse (1991) 54 Cal.3d 723, 740, quoting Saala v. McFarland (1965) 63 Cal.2d 124, 129, quoting Rest.2d Agency, § 235, com. a; see also 3 Witkin, Summary of Cal. Law (10th ed. 2005) Agency and Employment, § 176(3), p. 222 [“courts often look to workers’ compensation cases to decide whether an employee’s tortious act falls within the scope of employment for purposes of the doctrine [of respondeat superior]”].) Moss indicated that that was not the case here. The fact that she was performing a service similar to those that she performed for her employer was not determinative. (Hendy,at p. 741 [“coemployee [who] provides medical services other than those contemplated by the employee’s employment and in so doing is not acting for the employer,” is not within scope of employment].) Accordingly, whether Moss was acting in the scope of her employment was an issue of fact for the jury.
Moreover, the record indicates that the erroneous instruction did, in fact, affect this jury’s deliberations. The fact that a jury asks to have an instruction reread can be one indication that that instruction was prejudicial. (Pool v. City of Oakland, supra, 42 Cal.3d at pp. 1070-1071.) Here, when the trial court read the instruction, Juror No. 1 (who subsequently became the jury foreman) interrupted immediately and asked the trial court to read the instruction again. Moreover, after the verdict was received, he said that the jurors “as a group” were “confused” about whether the instruction meant that “two witnesses” had committed perjury.
Significantly, in her reply brief, Albert does not argue that, if the trial court erred, the error was not prejudicial; she argues only that the trial court did not err.
Albert argues, among other things, that “no error occurred” because “[t]he testimony was not stricken . . . .” To the extent that this can be viewed as an argument that an error did occur but was not prejudicial, we disagree. The erroneous instruction required the jury to disregard all contrary testimony. We see no relevant distinction between this and an order striking such testimony.
We conclude that the erroneous instruction was prejudicial and therefore that we must reverse the judgment.
II
DISPOSITION
The judgment is reversed. The order granting a partial new trial is vacated as moot. In the interests of justice, each side shall bear its own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
We concur: RAMIREZ P.J., GAUT J.
In any event, even assuming Albert is right as to Moss, she is wrong as to Satellite. Satellite had no right to correct Moss’s deposition. Moreover, because Moss had settled with Albert, Moss herself no longer had any incentive to correct it.