(PC) Martin v. Her

9 UNITED STATES DISTRICT COURT 10 FOR THE EASTERN DISTRICT OF CALIFORNIA 1] | Smiley Martin, No. Case 2:18-cv-01658-KJM-KJIN 13 Plaintiff, ORDER 14 v. 15 Officer J. Her, 16 Defendant.

18 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 | (Oth 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.

3 IT IS SO ORDERED.

4 DATED: December 3, 2021. [\ (] 5 ( ti / { q_/ CHIEF NT] ED STATES DISTRICT JUDGE