PERB: Answer Constitutes a Judicial Admission

City of Calexico (2017) PERB Decision No. 2541-M (Issued on 10/20/17) and Turlock Unified School District (2017) PERB Decision No. 2543-E (Issued on 11/14/17)

In both these cases, the proposed ALJ decision found that the employer had committed an unfair practice. The legal issues involved were not novel, but what caught my attention was that in both cases the ALJ held that the employer made a key admission by admitting material allegations in the Answer.  In affirming both proposed decisions, the Board held that if the Answer to the Complaint admits facts in the Complaint, such an admission constitutes a “judicial admission which conclusively removes the issue from controversy.” (Turlock, p. 8.) The Board went on to hold that the effect of admitting facts in the Answer is that it “forbids consideration of contrary evidence…” (Turlock, p. 9.)

Comments:

  1. While this rule is not new, it does seem like the Board is being more strict on applying it than before. In both of these cases there was some ambiguity, in my opinion, as to whether the admitted facts precluded the defenses proffered by the employers.
  2. Nevertheless, this brings up a couple of practice pointers. When answering the allegations in a Complaint, the respondent generally must ADMIT or DENY each material allegation. However, the regulations do allow the respondent to state that it “does not have knowledge of information sufficient to form a belief as to the truth of a particular allegation…” (PERB Reg. 32644.) This statement then acts as a denial of the allegation. So if you’re responding to a Complaint and don’t have sufficient facts to ADMIT or DENY, keep this option in mind.
  3. Next, it’s not uncommon to learn more facts about a case after filing the Answer. I always recommend double-checking that all the necessary affirmative defenses have been set forth in the Answer at least a few months before hearing. Based on these cases, it would also be wise to double-check what facts were ADMITTED. In Turlock, the Board noted that Answers, just like Complaints, can be amended. The key issue in whether an amendment is allowed is often times whether the other party will suffer any prejudice.  That’s why if you need to amend the Answer it should be done early enough so that there is no argument of prejudice by the other side.
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