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Shelton v. City of Manhattan Beach9/28/2004
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As noted above, on August 26, 2002, five days after he filed his original complaint in this action, plaintiff appeared on a radio talk show. Plaintiff told the interviewer: "I had no problem with the anti-gay slurs and the jokes. I understand that is a cop thing." At his deposition, plaintiff explained that statement: "I wouldn't normally have a problem with [the anti-gay slurs and jokes]. I survived 14 years on the job listening to it. If I had a significant problem with it, I wouldn't have made it." Plaintiff was then asked, "And was that the truth when you said that on the radio show?" Plaintiff responded, "It's the truth now." Plaintiff's deposition testimony further included the following: "Q And the anti-gay slurs never bothered you, did they? [ ] A Sure they did. [ ] Q Did you ever tell anybody that anti-gay slurs didn't bother you? [ ] A That they didn't bother me? [ ] Q Yes. [ ] A Well, what I have said is that being third generation, I prepared myself for the fact that that was going to be part of the job, and you just have to accept it. But internally, of course, it bothers you. I mean, you don't jump the gun, and let everything that is said bother you or you would be crazy. It's just . . . . [ ] Q Did you ever tell anyone that even if it was a joking matter, I can take it . . . . [ ] A Even if what was a joking matter? [ ] Q The anti-gay slurs, did you ever say that? [ ] A That I can take it? [ ] Q Yes. [ ] A I can take it."; "Q Even people who made antigay slurs you were friendly with? [ ] A Sure. [ ] Q So it must not have offended you? [ ] A It offended me deeply inside."
The rule of law on which defendants rely stems from the Supreme Court's decision in D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22. There the court held that a "clear and unequivocal admission" in a deposition must be accepted as conclusive as to the nonexistence of a triable issue of material fact; moreover, the discovery admission cannot be contradicted by a declaration in opposition to a summary judgment motion. (Ibid.) However, the D'Amico rule is inapplicable when a discovery admission is equivocal. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 473; Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 77-78; Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 961-962; People ex rel. Dept. of Transportation v. Ad Way Signs, Inc. (1993) 14 Cal.App.4th 187, 200; Kirby v. Albert D. Seeno Construction Co. (1992) 11 Cal.App.4th 1059, 1066; Mason v. Marriage & Family Center (1991) 228 Cal.App.3d 537, 546; Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 482; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2004) ยงยง 10:156-10:156.2, pp. 10-55 to 10-56 (rev. #1, 2004); see also Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, 860-862 [unequivocal deposition testimony].) As the Court of Appeal explained in Price: " n uncritical ap
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