Opinion
2:18-cv-01658-KJM-KJN
12-03-2021
Smiley Martin, Plaintiff, v. Officer J. Her, Defendant.
ORDER
The court's final pretrial order in this matter listed several undisputed facts and permitted the parties to object within fourteen days. See FPTO at 2-4, 11. Defendant Officer Her objects that some of these facts are actually disputed. See Objs., ECF No. 62. He claimed unambiguously at summary judgment, however, that the same facts were undisputed. Compare FPTO at 4 with Def.'s Stmt. Undisp. Facts Nos. 18-38, ECF No. 33-7 and with Mem. at 3-4, ECF No. 33-2. Plaintiff urges the court to hold Officer Her to that previous position. See generally Resp., ECF No. 63. The court agrees. “[S]tatements of fact contained in a brief may be considered admissions of the party in the discretion of the district court.” Am. Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 227 (9th Cir. 1988) (emphasis omitted). Officer Her has not argued that his admissions were accidental or incorrect, and he has not cited evidence that might create a dispute that could be adjudicated at trial. Cf. Sicor Ltd. v. Cetus Corp., 51 F.3d 848, 860 (9th Cir. 1995) (“[If] the party making an ostensible judicial admission explains the error . . ., the trial court must accord the explanation due weight.”). His objections are overruled.
IT IS SO ORDERED.