Opinion
Appellant challenges a judgment based on a finding that there was no contract between the parties and allowing quantum meruit recovery. Appellant claims the court erred in ignoring respondent’s judicial admissions that a contract existed. We reverse.
Factual and Procedural Background
Appellant, a general contractor, did business as Birtcher Construction Services (Birtcher). Birtcher solicited bids from subcontractors to build the Brenden Theater complex in Vacaville. Respondent Bart Valerio was awarded the painting subcontract, knowing that he would be required to submit a performance bond. Birtcher sent Valerio two original agreements to be initialed on each page, signed and return to Birtcher. The letter informed Valerio that a “duly executed original will be returned to you for your files.” Valerio was also told to submit his performance bond. Valerio returned the initialed and signed contract. Birtcher wrote Valerio that it had received the contracts, but still needed the performance bond “in order to process and execute.” As Valerio understood Birtcher’s letter, Birtcher had not executed the contract.
Heavy rains delayed construction progress. Valerio began working at the end of June or beginning of July, even though he had not received an executed contract. He received another letter from Birtcher on July 8, 1998, marked “second request,” advising him that the performance bond was required. The letter stated that “[a]n incorrect insurance certificate will hold up execution of the contract and any payments.” Valerio continued working on the project. On August 24, 1998, he received a
Valerio sued, alternatively alleging breach of express written contract and quantum meruit. Birtcher filed a compulsory cross-complaint, and Valerio answered. The matter was tried to the court which found there was no written agreement between the parties. The court denied Birtcher’s motion for a new trial and awarded Valerio attorney’s fees.
Birtcher claims the court’s finding that no written contraсt existed is erroneous in that it ignores Valerio’s express admissions to the contrary and relies on inadmissible evidence.
Discussion
Birtcher contends the court failed to give conclusive effect to Valerio’s judicial admissions regarding the existence of a written contract. We agree.
A. Background
In Valerio’s answer to Birtcher’s cross-complaint for breach of contract, Valerio admitted the following allegation: “Birtcher entered into a written сonstruction services trade contract with Bart Valerio, . . . which was signed by Bart Valerio on March 4, 1998. The essential terms of the contract were that Valerio was to perform waterproofing, caulking, and painting work and to provide the related supplies for the construction project in a timely and workman like manner, and was to provide a performance bond.”
Birtcher propounded requests for admissions pursuant to Code оf Civil Procedure section 2033, and Valerio responded as follows: “The written contract between Bart Valerio . . . and Birtcher Construction for painting services at Brenden Theaters project in Vacaville required Bart Valerio to provide a performance bond [Response: Admitted.],” and “The written contract between Bart Valerio . . . and Birtcher Construction for painting services at Brenden Theaters project in Vacaville рrovide[d] that Birtcher retained] the right to supplement with other workers the work being done by plaintiff and to charge Bart Valerio the costs of the additional workers. [Response: Admitted, subject to further proviso that Valerio was not himself performing the work required under the contract.]”
Seven months before trial, Valerio stated in his February 10, 2000, trial management conference statement: “Only after having gathered together all of the documents and hаving digested the deposition testimony of Birtcher’s Operations Manager did the actual status of the contract become clear. Birtcher intentionally never signed the contract. Since there was no
In its May 10, 2000, trial management conference statement, Birtcher stated: “The existence of the written contract is not in dispute. Valerio admitted to the existence of the written agreement in his complaint and in his answer to the cross-complaint, as well as in response to discovery demands.” Birtcher argued that Valerio was bound by his judicial admissions and discovery answers. Additionally, Birtcher advised: “No motions in limine are expected. However, while not offered as a formal motion in limine, the court should be aware of the evidentiary dispute that will arise if Valerio attempts to offer any evidence at trial that the written subcontract between Valerio and Birtcher is unenforceable . . . .” Birtcher pointed out that Valerio made judicial admissions in his cross-complaint and discovery responses. Accordingly, Birtcher argued that Valerio was bound by those admissions and prohibited from offering contrary evidence at trial. In his trial brief, filed on August 17, 2000, Birtcher again argued that Valerio was bound by his judicial admissions and “[a]s a matter of law, Valerio may not argue that there is no written contract between the parties concerning their respective duties and obligations on the Brenden Theater Project.” Again, after receipt of Birtcher’s conference statement and trial brief, Valerio did not amend his pleadings or discovery responses.
In closing argument, Valerio’s counsel described the issue before the court as follows: “[W]as there an express written contract between these parties or should the plaintiff be held to the fiction that there was an express written contract due to alleged admissions by the plaintiff?” Counsel argued that “if there is an explanation as why testimony is later givеn to the contrary [to the admissions], ... the court can listen to that and the court is not bound.” He explained that at the time of the admissions, the deposition of Birtcher employee Richard Youngquist had not yet been taken and Valerio was not fully aware of all the facts. Birtcher’s counsel responded: “Requests for admissions are [binding.] That’s what they’re for, to preclude issues from coming up at trial. You can’t—the only way out of them is to come in with a mоtion on good cause to be relieved of them before the trial, and that motion has never been made. I think he’s bound to his admissions.”
The court concluded there was no contract because there was no mutuality of assent. It based its ruling on the lack of signature by Birtcher and Birtcher’s communications with Valerio repeatedly reminding him that no executed contract existed without submission of a performance bond. As to the judicial admissions, the court told Birtcher’s counsel: “[Y]our position is that the admissions during the litigation, I guess, are the mutual assent, but I allowed some argument on that.”
Birtcher requested a statement of decision, asking the court to address, among other things, whether there was “an enforceable contract as a matter of law” based on Valerio’s admissions in his pleadings and responses to requests for admissions. As to the admissions under Code of Civil Procedure section 2033, the statement of decision provides: “The requests for admission propounded by Birtcher to Valerio, were couched in terms of ‘ [t]he written contract between Valerio and Birtcher required that . . .’ and ‘provided that . . . The requests for admission did
In a motion for new trial, Birtcher again emphasized Valerio’s answer to the cross-complaint, in which he admitted to the existence of written contract. Birtcher argued that this admission conclusively established the issue, and that contrary evidence was inadmissible. As to the court’s characterization of ambiguity in the request for admissions, Birtcher pointed out that Code of Civil Procedure section 2033, subdivision (f)(1) requires a party to admit “so much of the matter ... as is true” and “deny so much of the matter as is untrue.”
At the hearing on the new trial motion, Birtcher’s counsel focused his argument on Valerio’s answer to the cross-complaint, arguing: “The cross-cоmplaint alleged that a contract existed between Birtcher and Valerio . . . ; and the answer to that complaint was that they admitted that fact. There is no dispute on that and, because of that, as a matter of law, Birtcher should be entitled to a finding that there was a contract on the cross-complaint; and also, on the cross-complaint, a finding that there was a breach of that contract based upon the facts in evidence and admission of Valerio.” The court stated that Birtcher’s argument “is one that concerns the court, as well.” In response, Valerio’s counsel acknowledged that he should have moved to amend the pleadings and responses to request for admissions, but argued that the court retained discretion to entertain contrary evidence.
The court ruled: “The court is cognizant of the point that [Bircher’s counsel] makes. [|] I find the . . . judicial admission to be . . .of substantial significance, [f] The court perceives from the baseline that judicial admissions in the normal course preclude an admitting party from submitting evidence to the contrary. [^[] So there’s a cross-complaint. There’s an admission of the existence of the contract. Under the normal course of things, one would have expected that the pleadings would have been amended. [f] The court takes notice that this is not a mastеr calendar assignment, but a direct calendar assignment. The same judge has heard all the law and motion and ... is cognizant of the following, and that is, back on February 10th, 2000, the plaintiff notified the court and Brenden and Birtcher that since there was no contract, Valerio’s only claim is on the second cause of action for work, labor, and services on a quantum meruit basis. ffl] After that date, on May 12th, 2000, in a trial brief which the court ordered, the court takes nоte that . . . [Valerio stated] . . . ‘There was no contract upon the original proposed terms.’ . . . It is clear at that point that . . . Valerio is not proceeding on the breach of contract action.”
The court observed that Birtcher was on notice that Valerio would no longer proceed on the breach of contract claim, quoting Birtcher’s statement in its trial management conference that Valerio “now intends to abаndon his breach of contract claim, and instead argue that there is no written contract.” It also noted, “There was no motion in limine that the court is aware of to exclude the whole of plaintiff’s testimony on the issue of quantum meruit.”
Finally, the court concluded, “So I think there was no expression of surprise. There was no expression of prejudice.
B. Analysis
Valerio admitted the existence of a written contract in his answer to the cross-complaint. The admission of fact in a pleading is a “judicial admission.” Witkin describes the effect of such an admission: “An admission in the pleadings is not treated procedurally as evidence; i.e., the pleading need not (and should not) be offered in evidence, but may be cоmmented on in argument and relied on as part of the case. And it is fundamentally different from evidence: 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.]” (4 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 413, pp. 510-511.)
The law on this topic is well sеttled by venerable authority. Because an admission in the pleadings forbids the consideration of contrary evidence, any discussion of such evidence is irrelevant and immaterial.
(Braverman v. Rosenthal
(1951)
Valerio contended at oral argument that the trial court retained the inherent or equitable power to fashion a remedy that would avoid an unjust result. He argues, in effect, that the court could disregard the judicial admission in light of other evidence presented at trial and Valerio’s efforts to apprise Birtcher of a change in case theory. This argument is without merit. An admission in a pleading is conclusive on the pleader. (4 Witkin, Cal. Procedure, supra, Pleading, § 415, p. 512.) “He cannot offer contrary evidence unless permitted to amend, and a judgment may rest in whole or in part upon the admission without proof of the fact.” (Ibid., italics added.) While a court has inherent power to relieve a party from the effects of judicial admissions by amendment to the pleadings (Code Civ. Proc., § 473), Valerio never sought to amend his answer to the cross-complаint.
Additionally, for the first time on appeal, Valerio asserts that his answer to the cross-complaint is a “nullity” and should be disregarded. He contends that at the time he filed his answer, there was no cross-complaint on file. Because the court permitted
Additionally, the court erroneously ignored the effect of Valerio’s admissions made pursuant to Code of Civil Procedure section 2033. A matter admitted in response to a request for admission is conclusively established against the party making the admission, unless the court has permitted amendment or withdrawal of the admission. (Code Civ. Proc., § 2033, subd. (n).) Section 2033 permits a party to withdraw or amend an admission with leave of court. The court may grant leave if it dеtermines the admission was the result of mistake, inadvertence, or excusable neglect and that the party who obtained the admission will not be substantially prejudiced by the withdrawal or amendment. (§ 2033, subd. (m).) Here, Valerio acknowledges he knew before trial that his admissions were mistaken. However, Valerio made no request to amend or withdraw them. Birtcher was entitled to rely on those admissions in defending against Valerio’s complaint and in pursuing its cross-comрlaint.
Valerio argues that the court correctly interpreted his Code of Civil procedure section 2033 admissions to concern only requirements and provisions of the contract and not an acknowledgment that a contract was actually formed. He relies on In
Fredericks v. Kontos Industries, Inc.
(1987)
Unlike the circumstances of
Fredericks v. Kontos Industries, Inc., supra,
It is apparent from the court’s remarks that motions to amend or withdraw would have been granted. While the result here is rigorous, the rule is clear and Birtcher is entitled to rely upon it. To hold otherwise would undermine well-settled rules of pleading relied upon to properly structure litigation. Valerio failed to take the necessary procedural steps to remove his judicial admissions, even when Birtcher’s trial management conference statement and trial brief highlighted the issue. Contrary to the court’s reasoning below, informal notification to the opposing party of a change in case theory does not obviate the conclusive effect of judicial admissions. In view of our conclusions, we need not consider Birtcher’s other contentions on appeal.
Disposition
The matter is reversed and remanded for a new trial. Birtcher asks that we rеmand the matter with instructions to the trial court to find that the parties entered into a written trade contract. We decline to do so. “After an ordinary general reversal, the cause is at large for retrial. [Citation.] The court has the same authority to allow amendments as in a case not yet tried, and leave to amend is granted with about the same liberality. [Citations.]” (5 Witkin, Cal. Procedure, supra, Pleading, § 1140, p. 595.) Each side is to bear its own costs on appeal.
McGuiness, P. J., and Parrilli, J., concurred.
On December 3, 2002, the opinion was modified to. read as printed above.