Luna v. Luna

2019 UT App 57
THE UTAH COURT OF APPEALS
LUIS LUNA,
Appellant,
v.
M ARIA LUNA,
Appellee.
Opinion
No. 20170994-CA
Filed April 11, 2019
Third District Court, Salt Lake Department
The Honorable James D. Gardner
No. 160903176
Daniel F. Bertch, Attorney for Appellant
Joel D. Taylor and Matthew D. Church,
Attorneys for Appellee
JUDGE R YAN M. HARRIS authored this Opinion, in which
JUDGES K ATE A PPLEBY and JILL M. POHLMAN concurred.
HARRIS, Judge:
¶1 	While giving her brother Luis Luna (Luna) a ride to work,
Maria Luna (Sister) was involved in an automobile accident
in which Luna was injured. Luna sued Sister for negligence,
yet during depositions testified unequivocally that the traffic
light 	was 	green 	in 	Sister’s 	favor. 	Sister 	contends—and 	we
agree—that 	this 	testimony 	constitutes 	a 	binding 	judicial
admission that Luna cannot contest at trial, and we therefore
conclude 	that 	the 	district 	court 	properly 	entered 	partial
summary judgment against Luna on the issue of whether the
light was green. While this fact alone does not entitle Sister to
complete summary judgment, the court’s entry of judgment in
Sister’s favor was appropriate on the facts of this case, where
Luna produced no evidence of negligence other than potential

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testimony about the color of the traffic light. We therefore affirm
the 	district 	court’s 	summary 	judgment 	order, 	as 	well 	as 	a
challenged discovery order.
BACKGROUND
¶2 	Sister was giving Luna a ride to work one morning when
their 	vehicle 	was 	struck 	by 	another 	driver 	(Driver) 	at 	an
intersection controlled by a traffic light. Because Driver and
Sister each entered the intersection perpendicular to one another,
the light could not have been green for both of them. Luna
sustained injuries from the accident, and eventually brought suit
against both Driver and Sister for negligence and other related
claims. In his complaint, Luna alleged that Driver had caused the
accident by running a red light or, in the alternative, that Sister
had caused the accident by running a red light. Luna also
alleged that both drivers had failed to maintain a proper lookout
and failed to yield to the other vehicle.
¶3 	All parties to the suit were deposed, and Sister and Driver
each testified that they had the green light when they entered the
intersection. 	Luna 	was 	deposed 	twice 	and, 	during 	each
deposition, his testimony was given through a Spanish-language
interpreter. Each time, he testified—repeatedly—that the light
was green for Sister when she entered the intersection. At his
first deposition, he testified as follows:
Q. Did you see the color of the light as you were
entering the intersection?
A. Yes. It was green.
Q. How long had the light been green before you
entered the intersection?
A. Since we went through it until it hit us.

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Q. How many seconds had the light been green
before you entered the intersection?
A. I would not be able to tell you.
. . . .
Q. You don’t know how far back you were from
the intersection when you first noticed the color
of the light?
A. I will repeat myself. It was green when we went
through it.
. . . .
Q. So what I want to know is exactly where was
your car in relation to the intersection when
you first noticed the color of the light. . . . I’m
just trying to figure out where you were when
you first noticed the light.
A. Well we saw it—we were driving, we saw that it
was green, and when we passed through the
intersection 	it 	was 	already 	green. 	We 	were
okay.
. . . .
Q. Was the light always green from the moment
that you first saw it until the moment of the
impact?
A. Yes.
¶4 	Three weeks later, Luna was again deposed. Though he
stated that he did not give the road the same attention as he
would have had he been the one behind the wheel, he again

Luna v. Luna
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emphasized that the light was green when Sister entered the
intersection:
Q. Now based on your previous testimony the last
time 	we 	were 	here, 	you 	were 	absolutely
adamant 	that 	the 	light 	was 	green 	as 	you
proceeded 	through 	the 	intersection; 	is 	that
correct?
A. Yes.
. . . .
Q. 	You 	were 	in 	the 	car 	the 	day 	the 	accident
happened; correct?
A. Yes, of course.
Q. You saw the light was green as you were going
through the intersection; correct?
A. Well, I’ll tell you again, yes, I was looking, but I
wasn’t looking to see who else was looking. I
was merely focused on the idea that I was
headed to work. So I’ll tell you again, all I had
on my mind was what I would be doing when I
got 	to 	work, 	and 	that’s 	what 	occupied 	my
thinking. . . . Any other type of question I
couldn’t tell you, but my attorney could tell
you.
Q. Did you see the light green as you proceeded
through the intersection?
A. Yes.

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¶5 	During 	the 	second 	deposition, 	defense 	counsel 	asked
Luna about his opinion of Sister’s driving on the day in question:
Q. So in terms of the accident, do you have any
problems with the way your sister operated her
vehicle on the day of the accident?
[Luna asks for the question to be repeated]
A. 	Well, 	no. 	To 	me, 	I 	mean, 	with 	all 	that’s
happened to me, and I’ll tell you again, things
have changed. So it was one thing before and
now 	it’s 	different 	in 	terms 	of 	how 	I 	am.
Everything has changed for me, and that’s why
I am putting forth this suit with [Sister]. I don’t
think I could say anything more. I would defer
to my attorney.
Q. Well, you just answered my question, and I
want to just confirm it that you just said that
you had no problems with the way [Sister]
operated her vehicle on the day of the accident.
Is that what you said?
A. Yes.
¶6 	Luna eventually reached a settlement with Driver, who
was then dismissed from the case. Thereafter, Sister filed a
motion 	for 	summary 	judgment, 	arguing 	that 	there 	was 	no
genuine dispute as to material facts between Luna and Sister,
because each of them agreed not only that the light was green,
but 	also 	that Sister was properly operating 	her vehicle. 	In
opposition 	to 	Sister’s 	motion, 	Luna 	pointed 	only 	to 	the
conflicting testimony of Driver regarding the color of the traffic
light, arguing that,

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[Luna’s] testimony is disputed by [Driver]. . . . The
jury is no more bound by [Luna’s] testimony than
[Sister’s]. The jury might conclude that [Luna’s]
testimony was protective of [Sister], and conclude
that [Driver] was truthful . . . . Or the jury might
attribute only a small percentage of fault to [Sister].
Luna offered no other evidence to show negligence, attaching
only two pages of Driver’s deposition testimony in which Driver
testified that his light was green. Specifically, Luna offered no
evidence that Sister was driving improperly by, for instance,
failing to keep a proper lookout, speeding, or driving while
distracted.
¶7 	The district court held a hearing, after which it requested
supplemental briefing from the parties on whether some of the
statements Luna made in his deposition should be considered
binding admissions. Sister argued that Luna’s statements were
“judicial 	admissions” 	that 	Luna 	should 	be 	precluded 	from
contradicting. 	Luna 	acknowledged 	that 	he 	had 	consistently
testified that the light was green, but argued that his testimony
was ordinary testimony that a jury should be able to disregard in
favor of Driver’s account of the relevant events. After oral
argument, the district court determined that Luna’s deposition
testimony—including both his statements about the color of the
light as well as his statements about how Sister was driving her
vehicle—contained judicial admissions that he was not free to
contradict, 	and 	that 	therefore 	summary 	judgment 	was
appropriate in favor of Sister.
¶8 	During the course of the litigation, Luna designated his
treating physicians as non-retained expert witnesses who may
testify at trial in support of his claims. After some litigation
about the propriety of those disclosures, Sister’s counsel noticed
and took the depositions of two of Luna’s treating physicians.
The parties were unable to agree on which party, if any, should

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pay the fees charged by the treating physicians for their time
spent in deposition and, after the depositions were taken, Luna
filed a statement of discovery issues asking the court to compel
Sister to pay those fees. Luna argued that rule 26(a)(4)(B) of the
Utah Rules of Civil Procedure required Sister to do so, because
she 	had 	requested 	the 	depositions. 	Sister 	objected 	to 	the
statement, arguing that the rule required a party to pay an
expert’s professional fee for attending a deposition only if the
expert was a retained expert. The court issued an order denying
Luna’s statement of discovery issues on the same day it issued
its grant of summary judgment in favor of Sister.
ISSUES AND STANDARDS OF REVIEW
¶9 	Luna appeals the district court’s orders, and asks us to
consider three issues. First, Luna argues that the district court
erred in treating his deposition statements as non-rebuttable
judicial admissions. “We review the legal questions underlying
the admissibility of evidence for correctness and the district
court’s decision to admit or exclude evidence for an abuse of
discretion.” Rocky Mountain Power Inc. v. Marriott, 2018 UT App
221, ¶ 18 (quotation simplified); see also Caponi v. Larry’s 66, 601
N.E.2d 1347, 1355 (Ill. App. Ct. 1992) (“The determination of
whether a party’s statement is sufficiently unequivocal to be
considered a judicial admission is a question of law.”).
¶10 	Next, 	Luna 	argues 	that 	the 	district 	court 	erred 	in
dismissing the entire action, because even if the traffic light is
conclusively considered to be green, this fact did not necessarily
establish that Sister was not negligent. “[W]e review a district
court’s grant of summary judgment for correctness, affording no
deference to the court’s legal conclusions.” Poulsen v. Farmers Ins.
Exch., 2016 UT App 170, ¶ 8, 382 P.3d 1058.
¶11 	Lastly, Luna argues that the district court abused its
discretion when it did not require Sister to pay the hourly

Luna v. Luna
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professional 	fee 	charged 	by 	Luna’s 	treating 	physicians 	for
appearing at depositions taken by Sister. “We review discovery
rulings for an abuse of discretion.” Dahl v. Harrison, 2011 UT
App 389, ¶ 11, 265 P.3d 139, abrogated on other grounds by R.O.A.
Gen., Inc. v. Chung Ji Dai, 2014 UT App 124, 327 P.3d 1233.
ANALYSIS
I
¶12 	First, Luna argues that the district court erred by deeming
conclusive—as 	non-rebuttable 	judicial 	admissions—Luna’s
sworn deposition testimony that the traffic light was green as
Sister drove into the intersection and that he had no concerns
with the manner in which Sister was operating her vehicle. Luna
asserts that his testimony should be treated as ordinary evidence
that a factfinder is free to ignore in favor of other competent
evidence. In resolving this issue, we first consider, under Utah
law, whether and under what circumstances a party’s testimony
may be deemed a non-rebuttable judicial admission. We then
analyze the two statements at issue and conclude that Luna’s
statement that “the light was green” is a conclusive judicial
admission, but that Luna’s statement about Sister’s driving does
not qualify as such.
A
¶13 	Before beginning our analysis, we consider it necessary to
carefully frame the question presented in this case. Here, Luna is
not seeking to alter or change his deposition testimony, and
therefore we are not confronted with the question of whether
Luna 	ought 	to 	be 	permitted 	to 	contradict 	his 	deposition
testimony with his own affidavit or testimony. Whether a party
may alter his or her own deposition testimony with a later-filed

Luna v. Luna
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contradictory affidavit in an attempt to create a factual issue is a
question 	with 	which 	Utah 	appellate 	courts 	have 	already
grappled. See, e.g., Webster v. Sill, 675 P.2d 1170, 1172–73 (Utah
1983) (stating that “when a party takes a clear position in a
deposition, that is not modified on cross-examination, he may
not thereafter raise an issue of fact by his own affidavit which
contradicts his deposition, unless he can provide an explanation
of the discrepancy”); Gaw v. Department of Transp., 798 P.2d 1130,
1140–41 (Utah Ct. App. 1990) (applying Webster and stating that
a 	party 	may 	vary 	his 	deposition 	testimony 	if 	he 	has 	an
explanation for doing so that is “plausible”). In both of these
cases, the question presented is one of admissibility: whether a
party opposing summary judgment is allowed to create an issue
of fact by presenting his or her own affidavit at odds with his or
her previously-rendered deposition testimony.
¶14 	That is not the question at issue here, because Luna is
content with the state of his deposition testimony and makes no
effort to alter it. Instead, Luna seeks to introduce evidence from a
different witness—rather than from his own mouth—to call into
question 	his own 	testimony. 	This case 	therefore presents a
distinct issue: where a party either does not wish to, or is not
allowed 	to, 	change 	a 	factual 	admission 	made 	during 	a
deposition, what is the evidentiary effect of that admission?
And, specifically, should that party’s admission be deemed
conclusive, such that the party will not be allowed to introduce
evidence from other sources to contradict it?
¶15 	In Utah, as in other jurisdictions, a party’s admission of
fact in a pleading is normally treated as a conclusive admission
that the party is not later permitted to contradict, even with
evidence from other sources. See Baldwin v. Vantage Corp., 676
P.2d 413, 415 (Utah 1984) (“An admission of fact in a pleading is
a judicial admission and is normally conclusive on the party
making it.”); 2 McCormick on Evidence § 257 (7th ed. 2016) (stating
that pleadings “are used as judicial and not as evidentiary

Luna v. Luna
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admissions, 	and 	they 	are 	conclusive 	until 	withdrawn 	or
amended”); 	29A 	Am. 	Jur. 	2d 	Evidence 	§ 	788 	(2d 	ed. 	2019)
(“Stipulations and admissions in the pleadings are generally
binding on the parties and the court.”). Statements made in
depositions are not exactly the same thing as statements made in
pleadings, and no Utah court has yet given definitive guidance
about whether, and under what circumstances, a party will be
conclusively held to statements he makes in a deposition.
¶16 	Commentators 	and 	courts 	in 	other 	jurisdictions 	have
directly addressed the issue, though, and have identified two
basic approaches. See 2 McCormick on Evidence § 258. Some
jurisdictions treat the sworn testimony of a party like that of any
other 	witness, 	allowing 	parties 	to 	contradict 	their 	own
statements with the testimony of other witnesses. Id.; see also, e.g.,
Whitmire v. Ingersoll-Rand Co., 109 Cal.Rptr.3d 371, 379–80 (Cal.
Ct. App. 2010) (“[N]either a party’s deposition testimony nor its
responses to interrogatories constitute incontrovertible judicial
admissions of a fact that bar the party from introducing other
evidence that controverts the fact.” (quotation simplified)); D.R.
Horton, Inc.-Denver v. D&S Landscaping, LLC, 215 P.3d 1163, 1170
(Colo. App. 2008) (stating that deposition testimony “is not a
judicial admission absolutely binding on that party” and may be
contradicted by the party who gave it (quotation simplified)).
But 	other 	jurisdictions 	consider 	a 	party’s 	sworn 	deposition
testimony 	to 	be 	binding 	on 	that 	party, 	provided 	that 	the
statements are unequivocal and made about facts within the
party’s knowledge. 2 McCormick on Evidence § 258; see also, e.g.,
Hansen v. Ruby Constr. Co., 508 N.E.2d 301, 304 (Ill. App. Ct.
1987) (stating that unequivocal “assertions made in a deposition
constitute binding judicial admissions”); Yockey v. State, 540
N.W.2d 418, 421 (Iowa 1995) (stating that “the rule is well
established that” a party will be held to unequivocal deposition
testimony “as an informal judicial admission”); Body v. Varner,
419 	S.E.2d 	208, 	211 	(N.C. 	Ct. 	App. 	1992) 	(stating 	that
“unequivocal and unambiguous” statements made by a party at

Luna v. Luna
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a deposition are “judicial admission[s] and are conclusively
binding”); Aguirre v. Vasquez, 225 S.W.3d 744, 756 (Tex. App.
2007) (stating that a party’s statement at a deposition “will be
treated as a true judicial admission” that is “conclusive on the
party making it,” so long as certain factors are met). Leading
legal encyclopedias appear to espouse the second approach. See,
e.g., 29A Am. Jur. 2d Evidence §§ 783–84 (stating that “[a] judicial
admission is a party’s unequivocal concession of the truth of a
matter, and removes the matter as an issue in the case,” and that
“statements made during a discovery deposition” can “be held
to be judicial admissions” under appropriate circumstances);
32A 	C.J.S. 	Evidence 	§ 	1650 	(2019) 	(stating 	that 	“a 	party’s
deposition testimony may be treated as a judicial admission”
under 	appropriate 	circumstances). 	We 	think 	the 	second
approach is the better rule, for two reasons.
¶17 	First, allowing cases to proceed to trial when the two
parties do not disagree about the matter to be tried is a poor use
of our limited judicial resources. The main function of the
judicial system in our society is to act as a forum for the fair and
impartial 	resolution 	of 	bona 	fide 	disputes 	between 	parties.
“Private-rights 	disputes 	lie 	at 	the 	core 	of 	the 	historically
recognized judicial power.” Jenkins v. Swan, 675 P.2d 1145, 1149
(Utah 1983) (quotation simplified). To this end, “[t]he courts
[have] 	developed 	ways 	of 	identifying 	and 	categorizing
particular grievances, techniques for the receipt of information,
and principles for arriving at a resolution of these disputes,” id.,
always with the end goals of justice and truth in mind, see, e.g.,
Moler v. CW Mgmt. Corp., 2008 UT 46, ¶ 12, 190 P.3d 1250
(describing the “truth-finding function of courts”); see also, e.g.,
Utah R. Evid. 102 (“These rules should be construed so as to
administer every proceeding fairly . . . to the end of ascertaining
the truth and securing a just determination.”).
¶18 	If two parties do not actually have a dispute about a
particular issue, there seems little point in bringing the power of

Luna v. Luna
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the judicial system to bear to weigh in on the matter. See Utah
Animal Rights Coal. v. Salt Lake City Corp., 371 F.3d 1248, 1262
(10th Cir. 2004) (McConnell, J., concurring) (stating that “courts
exist to resolve live controversies, to remedy wrongs, and to
provide prospective relief,” and are “not debating societies”
convened for the purpose of discussing academic questions);
State v. Smith, 401 P.2d 445, 447 (Utah 1965) (stating that “[t]he
resolution of disputes is the purpose for which courts and juries
exist”). Judicial resources are finite, and courts have enough to
do without spending time and effort on cases in which the
litigants do not disagree. Indeed, to allow a party to pursue
recovery under a set of facts that he himself has sworn to be false
would run counter to the goals courts are designed to further.
¶19 	Second, 	there 	is 	something 	unjust 	about 	allowing 	a
litigant to convene a trial so that a jury can determine if the facts
are other than what the litigant swears they are. As one court put
it, a litigant should not be permitted to “make out a better case
for himself than he himself has testified to where his case
involves facts within his own knowledge.” Bell v. Harmon, 284
S.W.2d 812, 816 (Ky. 1955). Allowing otherwise may tempt a
party 	to 	commit 	perjury, 	see 	Hansen, 	508 	N.E.2d 	at 	304
(explaining that one “frequently stated purpose of the doctrine
of judicial admissions is to eliminate the temptation to commit
perjury”), “would be tantamount to permitting him to say for his
own advantage that his own testimony should be regarded as
false, and that of some other witness as true,” Bell, 284 S.W.2d at
816, and would open the door for litigants to argue that they
should 	recover 	despite 	their 	own 	sworn 	statements 	to 	the
contrary, see Aguirre, 225 S.W.3d at 757 (“The policy underlying
this rule is that it would be unjust to permit a party to recover
after it has negated its right to recover by clear, unequivocal
evidence.”); Hodnett v. Friend, 352 S.E.2d 338, 340–41 (Va. 1987)
(holding that, with regard to “a statement of fact, [a party]
cannot expect a court or jury to believe that he has not told the
truth in making the statement” (quotation simplified)); 32A

Luna v. Luna
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C.J.S. Evidence § 1649 (“[I]t would be absurd and unjust to allow
a party to recover after he or she has clearly and unequivocally
sworn to facts that defeat his or her cause of action or defense.”).
¶20 	Luna points out that he is allowed to plead his case using
alternative theories of recovery, and argues that considering his
deposition testimony as conclusive would curtail his ability to
plead in the alternative. Modern rules do allow parties to plead
alternative theories of relief, see Helf v. Chevron U.S.A. Inc., 2015
UT 81, ¶¶ 72–74, 361 P.3d 63 (observing that the old rules that
did not allow pleading in the alternative “frequently result[ed]
in injustice,” and that the modern, liberal pleading standards
“ha[ve] eliminated this harsh interpretation” and now “allow
parties the opportunity to fully adjudicate their claims on the
merits” (quotations simplified)), and even allow parties to plead
facts in the alternative in cases where the facts are unknown or
disputed, see 32 C.J.S. Evidence § 546 (“When a pleader pleads
alternatively or inconsistently, such allegations may not be used
against the pleader, at least, in the case of alternative fact
allegations, where such allegations are made in good faith and
based on genuine doubt.” (quotation simplified)); 29A Am. Jur.
2d Evidence § 791 (“The pleader states facts in the alternative
because he or she is uncertain as to the true facts, so that the
pleader is not ‘admitting’ anything other than uncertainty . . . .”).
But once the potentially disputed factual issues necessitating
alternative 	pleading 	are 	resolved, 	the 	need 	for 	alternative
pleading is eliminated. Cf. Helf, 2015 UT 81, ¶ 76 (stating that
“[o]nce the fact-finder and the judge have resolved all factual
and legal disputes related to the inconsistent theories of liability,
the plaintiff is then entitled to the one remedy (if any) that is
supported by the final determination of the law and the facts”).
¶21 	This 	case 	illustrates 	the 	point. 	Here, 	Sister 	does 	not
assert—and we do not discern—anything inappropriate about
the fact that, in his original complaint, Luna pled facts about the
color of the light in the alternative. At the time parties file

Luna v. Luna
20170994-CA 	14 	2019 UT App 57
complaints, they may not have all of the facts at their disposal,
and may be uncertain as to their true state. At the time Luna
filed his complaint, we can perhaps give him the benefit of the
doubt about whether he was completely sure about the color of
the traffic light at the time Sister entered the intersection. But
after discovery was complete, the record contained Luna’s sworn
deposition testimony, in which he repeatedly and unequivocally
stated that the light was green in Sister’s favor. At that point,
Luna no longer has any colorable basis upon which to plead that
the light was anything other than green, and therefore there is no
longer any role for “alternative facts.”
¶22 	For these reasons, then, we reject Luna’s argument that all
statements a party makes at a deposition are nothing more than
ordinary 	evidentiary 	admissions 	that 	can 	never 	constitute
conclusive judicial admissions. We think the better rule—and the
one 	we 	adopt 	here—is 	that 	a 	party’s 	sworn 	deposition
statements, provided certain factors are present, can constitute
binding judicial admissions.
B
¶23 	Next, we consider the precise circumstances under which
a party will be conclusively deemed to have admitted a matter in
a deposition. Our review of both Utah case law and persuasive
authority 	from 	other 	jurisdictions 	reveals 	that 	four 	factors
largely drive the analysis and that, in order to be considered a
binding judicial admission, a statement must meet all four of the
following criteria.
¶24 	First, the statement at issue must be made under oath in
the course of the current judicial proceeding. See Aguirre v.
Vasquez, 225 S.W.3d 744, 756 (Tex. App. 2007). This requirement
puts parties on notice of the gravity of their statements and the
need to be both thoughtful and forthright in what they say.

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¶25 	Second, the testimony in question must be clear and
unequivocal—that is, it must not be ambiguous or susceptible to
multiple interpretations, there must be no contention that the
party made any mistake in their testimony, and there must not
be any rational or sufficient explanation for the discrepancy
between the testimony and the pleadings. See id. (noting that
“the hypothesis of mere mistake or slip of the tongue must be
eliminated” (quotation simplified)). Parties sometimes misspeak,
misunderstand, or simply fall prey to the frailties of human
memory. See Webster v. Sill, 675 P.2d 1170, 1173 (Utah 1983).
Parties testifying through an interpreter, or in a language that is
not their first, might be particularly susceptible to providing
equivocal 	testimony. 	But 	if 	a 	party testifies unambiguously
about a fact within the party’s personal knowledge, and there
exist no concerns that the party failed to understand the question
or that the party’s testimony is otherwise unreliable, the party
rightly should be held to that testimony.
¶26 	Third, the statement in question must be about a factual
issue within the party’s personal knowledge, rather than about a
matter of opinion, ultimate fact, or legal conclusion. See Hansen v.
Ruby Constr. Co., 508 N.E.2d 301, 305 (Ill. App. Ct. 1987) (stating
that “[f]or testimony to be binding, it must also be peculiarly
within the knowledge of the deponent”); Yockey v. State, 540
N.W.2d 418, 421 (Iowa 1995) (stating that, to be a judicial
admission, a statement at a deposition must be about “a concrete
fact, not [about] a matter of opinion, estimate, appearance,
inference or uncertain memory” (quotation simplified)); Celli v.
Santos, 888 P.2d 1067, 1069 (Or. Ct. App. 1995) (stating that
“[w]hen a party testifies about a series of observations that
express matters of opinion, judgment, estimate, inference or
uncertain 	memory, 	as 	opposed 	to 	concrete 	facts 	peculiarly
within the party’s own knowledge, the court should allow for
the obvious possibility of mistake by allowing consideration of
all available evidence”). But see Body v. Varner, 419 S.E.2d 208,
211 (N.C. Ct. App. 1992) (allowing even statements going to

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20170994-CA 	16 	2019 UT App 57
ultimate 	issues 	like 	“negligence” 	to 	qualify 	as 	judicial
admissions). Legal conclusions are for courts to determine. And
statements about matters of opinion, including statements going
to ultimate issues—for instance, whether a party was negligent
or whether a party acted reasonably—are not the sort of fact-
bound statements that logically lend themselves to being treated
as binding admissions.
¶27 	Finally, giving conclusive effect to the testimony must be
consistent 	with 	the 	public 	policies 	of 	conserving 	judicial
resources, preventing perjury, and advancing the quality of
justice. See supra ¶¶ 17–20; see also Aguirre, 225 S.W.3d at 756
(stating that a declaration will not be considered a binding
judicial admission unless “the giving of conclusive effect to the
declaration will be consistent with the public policy upon which
the 	rule 	is 	based” 	(quotation 	simplified)). 	There 	may 	exist
situations in which the first three factors are met but in which
holding a party to his testimony would be unjust or at odds with
the policies underlying the rule. Our test provides trial judges
with 	the 	flexibility 	to 	address 	such 	(presumably 	unusual)
situations.
¶28 	Accordingly, we hold that a party’s statement will be
considered 	a 	binding 	judicial 	admission 	only 	if 	all 	of 	the
following criteria are met: (1) the statement is made under oath
during the course of the judicial proceeding; (2) the statement is
clear and unequivocal; (3) the statement is about a factual matter
within 	the 	party’s 	personal 	knowledge 	(as 	opposed 	to 	a
statement offering an opinion or legal conclusion); and (4) giving
binding effect to the statement would be consonant with the
policies underlying the “judicial admission” rule.
C
¶29 	Next, we must apply this test to the two categories of
statements Luna made during his deposition: (1) his statements

Luna v. Luna
20170994-CA 	17 	2019 UT App 57
that the traffic light was green; and (2) his statement that he “had
no problem with” the manner in which Sister operated her
vehicle on the day of the accident. Sister seeks to hold Luna to
both categories of statements. We agree with Sister that Luna’s
statements about the color of the traffic light meet the criteria
required 	to 	be 	considered 	judicial 	admissions 	and 	should
therefore be considered as such, but we agree with Luna that his
statement about the way in which Sister was driving does not
meet the criteria.
1
¶30 	With regard to Luna’s statements that the traffic light was
green when Sister entered the intersection, we conclude all of the
necessary 	elements 	are 	met. 	Luna 	acknowledges 	that 	the
statements were made under oath at a deposition in the course
of the judicial proceeding at issue, and does not dispute that the
statements concern an almost archetypal matter of fact (whether
the light was red or green) that is certainly within the realm of
his 	personal 	knowledge. 	Luna 	argues, 	however, 	that 	his
testimony was not sufficiently unequivocal, when taken as a
whole,1 to qualify as a judicial admission. On the facts presented
here, we disagree.
1. Luna argues that his testimony must be “taken as a whole,”
but submitted only four pages of his deposition transcript into
the record. We are thus unable to review Luna’s testimony “as a
whole”; 	our 	review 	is 	necessarily 	limited 	to 	the 	excerpts
contained in the record. Litigants in similar situations—who
may want to ask the court to consider deposition testimony “as a
whole”—might find it best to err on the side of inclusiveness
when attaching deposition excerpts (in four-pages-on-one-page
format, 	if 	burdening 	the 	record 	is 	a 	concern) 	to 	summary
judgment memoranda.

Luna v. Luna
20170994-CA 	18 	2019 UT App 57
¶31 	When 	asked 	about 	the 	color 	of 	the 	light, 	Luna 	was
adamant that it was green for Sister. Indeed, Luna so testified
seven different times over the course of his two depositions. At
times, Luna even appeared annoyed by the multiple questions
about the matter, twice stating: “I will repeat myself. It was
green 	when 	we 	went 	through 	it.” 	In 	the 	portions 	of 	the
deposition transcript Luna provided, he never expressed the
slightest doubt or equivocation about the color of the light.
Moreover, Luna did not seek to correct or amend his deposition,
nor did he ever file an affidavit seeking to explain away or
contradict his testimony. Indeed, by his own admission, Luna’s
testimony on this point has remained remarkably consistent.
¶32 	And 	giving 	conclusive 	effect 	to 	Luna’s 	testimony
regarding the color of the light is consistent with the public
policies 	underlying 	judicial 	admissions—conserving 	judicial
resources, preventing perjury, and advancing the quality of
justice. Luna and Sister do not have a dispute about the color of
the light: they each clearly swore, under oath, that it was green.
It makes little sense to convene a jury to consider the matter.
¶33 	The 	circumstances 	presented 	here 	constitute 	a 	clear
example for application of the “judicial admission” rule. Luna
testified clearly and unequivocally, under oath in a deposition,
about a factual matter well within his personal knowledge. It
would be unjust to relieve him of the consequences of this
admission. Accordingly, the district court correctly determined
that 	Luna’s 	testimony 	on 	this 	point 	constituted 	a 	judicial
admission, 	and 	correctly 	deemed 	the 	light 	“green” 	for 	the
purposes of adjudicating the dispute between Luna and Sister.
2
¶34 	We reach a different conclusion, however, with regard
to Luna’s deposition testimony about the manner in which
Sister 	was 	operating 	her 	vehicle 	on 	the 	day 	in 	question.

Luna v. Luna
20170994-CA 	19 	2019 UT App 57
Although 	that 	statement 	was 	offered 	under 	oath 	in 	a
deposition in this judicial proceeding, it does not meet two of the
other elements: the statement was not unequivocal, and—as
construed 	and 	offered 	by 	Sister—it 	concerned 	a 	matter 	of
opinion.
¶35 	First, when asked if he had “any problems with the
way [Sister] operated her vehicle on the day of the accident,”
Luna’s answer was far from clear and unequivocal. His response
was: “Well, no. To me, I mean, with all that’s happened to
me, and I’ll tell you again, things have changed. So it was
one thing before, and now it’s different in terms of how I am.”
When 	asked 	to 	confirm 	that 	he 	“just 	said 	that 	[he] 	had
no problems with the way [Sister] operated her vehicle on
the 	day 	of 	the 	accident,” 	Luna 	replied 	“Yes.” 	Luna 	was
not 	asked 	any 	specific 	follow-up 	questions 	about, 	for
instance, 	whether 	Sister 	appeared 	distracted, 	whether 	she
was speeding, or any other particular fact about her driving that
day.
¶36 	In our view, the question posed was not particularly clear.
Whether a person has “any problems” with the way someone
else 	is 	operating 	a 	vehicle 	is 	a 	question 	open 	to 	various
interpretations. It is not at all clear, from context, whether Luna
even understood this question to be asking about potential
negligent actions Sister might have taken; this lack of clarity is
only heightened by the fact that Luna was testifying through a
Spanish-language interpreter. Luna first asked for the question
to be repeated, perhaps indicating some confusion about what
the question meant, then gave a rather rambling and (at least
partially) 	non-responsive 	answer. 	The 	attorney 	asking 	the
question tried to restate it, at which point Luna answered in the
affirmative. In sum, this particular exchange between lawyer
and witness does not leave us with any confidence that Luna
was offering knowing testimony about the particulars of Sister’s
driving that day.

Luna v. Luna
20170994-CA 	20 	2019 UT App 57
¶37 	Second, if we construe the question as one asking for
Luna’s opinion about whether Sister was operating her vehicle
in a negligent manner—the only context for which Sister offers
it—Luna’s answer would be in the nature of an opinion on an
ultimate issue, rather than on a particular factual matter within
his personal knowledge. Negligence, and the apportionment of
negligence in a case where two or more parties may be at fault,
are ultimate facts, see, e.g., Acculog, Inc. v. Peterson, 692 P.2d 728,
730 (Utah 1984) (“The ultimate facts in a comparative negligence
case embrace only negligence, causation and the percentages of
negligence attributed to plaintiff and defendant.”), and these
facts are usually best left to a factfinder. Had counsel asked
specific follow-up questions about factual matters (was Sister
speeding, did Sister appear to be watching the road, was Sister
talking on her cellphone, and so on), Luna’s answers would
constitute factual testimony that might—if all the other factors
were 	satisfied—constitute 	judicial 	admissions. 	But 	a 	party’s
ultimate opinion about whether the other side was negligent is
not the sort of matter that will be considered a binding judicial
admission.
II
¶38 	Had we determined that both of Luna’s statements were
judicial 	admissions, 	it 	would 	have 	followed 	therefrom 	that
summary judgment in favor of Sister is appropriate. But given
our ruling that only Luna’s statements about the color of the
traffic light constitute judicial admissions, we must proceed to
the next step: whether it is possible for Luna’s case to survive
Sister’s motion for summary judgment when (a) his statement
about Sister’s driving is merely an ordinary admission, but (b) it
is deemed a conclusive fact that Sister did not run a red light.
¶39 	Luna correctly points out that, even if his statement that
the light was green is considered conclusive, and the factfinder
must therefore find that the light was green, that fact alone does

Luna v. Luna
20170994-CA 	21 	2019 UT App 57
not 	inexorably 	exonerate 	Sister 	from 	negligence. 	In 	certain
instances, drivers proceeding through a green light may still be
considered to have acted negligently. See, e.g., Keller v. Martinez,
2014 UT App 2, ¶ 11, 318 P.3d 1147 (“[A] green arrow never
permits 	a 	driver 	to 	proceed 	carelessly, 	oblivious 	to 	the
conditions at hand; the driver must take reasonable precautions
to avoid a collision.”); see also Model Utah Jury Instructions 2d
CV 614 (Utah Judicial Council 2014) (stating that even “the
driver with the green light has a duty to use reasonable care to
avoid a collision”).
¶40 	Sister acknowledges this point, but argues that the district
court’s 	summary 	judgment 	ruling 	should 	nevertheless 	be
affirmed due to a lack of competent evidence from any source
that 	would 	indicate 	that 	Sister 	was 	driving 	in 	a 	negligent
manner. As the plaintiff in a negligence action, Luna bore the
burden of proof at trial. See Asael Farr & Sons Co. v. Truck Ins.
Exch., 2008 UT App 315, ¶ 12, 193 P.3d 650 (“On issues essential
to the cause of action for negligence, the plaintiff, in general, has
the 	burden 	of 	proof.” 	(quotation 	simplified)). 	When 	Sister
moved for summary judgment, she “had the initial burden to
show through reference to the pleadings, depositions, answers to
interrogatories, and admissions on file that there was no genuine
issue of material fact concerning [Luna’s] claim.” See Jones v.
Mackey Price Thompson & Ostler, 2015 UT 60, ¶ 28, 355 P.3d 1000
(quotation simplified). Sister met this burden by showing that
she and Luna agreed about the facts that led to the accident, that
no other fact witness could offer any evidence that Sister was
driving 	negligently, 	and 	pointing 	out 	that 	Luna 	“failed 	to
identify 	any 	accident 	reconstructionist 	or 	expert 	witness 	to
opine” about the cause of the accident or Sister’s driving.
¶41 	Once Sister met her initial burden, the burden shifted to
Luna, “who may not rest upon the mere allegations or denials of
the pleadings, but must set forth specific facts showing that there
is a genuine issue for trial.” Id. ¶ 29 (quotation simplified). In

Luna v. Luna
20170994-CA 	22 	2019 UT App 57
opposition 	to 	Sister’s 	motion, 	Luna 	pointed 	only 	to 	the
conflicting testimony of Driver about the color of the light. Luna
offered no other evidence to show Sister’s negligence. Instead, he
offered “mere allegations,” not “specific facts showing that there
is a genuine issue for trial.” Id. In fact, Luna alleges no specific
action by Sister that could lead a jury to find her at fault. In both
his complaint and his opposition to Sister’s motion for summary
judgment, 	Luna’s 	allegations 	of 	Sister’s 	negligence—save
running a red light—merely recite provisions from Utah’s model
jury instructions. A plaintiff who “merely state[s] elements of the
claimed causes of action and allege[s] in vague and conclusory
terms” that defendant committed acts amounting to tortious
conduct is not entitled to survive summary judgment. See Rusk v.
University of Utah Healthcare Risk Mgmt., 2016 UT App 243, ¶ 7,
391 P.3d 325 (per curiam).
¶42 	Because 	Luna’s 	deposition 	testimony 	about 	Sister’s
driving is not deemed conclusive, Luna was entitled to the
opportunity to present other evidence that might tend to show
that—even 	though 	she 	had 	a 	green 	light—Sister 	was
nevertheless driving in a negligent manner. Luna did not take
advantage of this opportunity. He produced no evidence—other
than Driver’s testimony that he had the green light, which
testimony is of no use to Luna—that Sister was operating her
vehicle in a negligent manner. For this reason, we affirm the
district court’s grant of summary judgment in favor of Sister on
the merits of Luna’s claim.2
2. The district court based its grant of summary judgment on its
determination 	that 	both 	categories 	of 	Luna’s 	statements—
including his statement that he had no complaints about Sister’s
driving on the day of the accident—were judicial admissions.
Although we reach a different conclusion than the district court
did 	about 	the 	binding 	effect 	of 	the 	second 	category 	of
(continued…)

Luna v. Luna
20170994-CA 	23 	2019 UT App 57
III
¶43 	Lastly, Luna argues that Sister should be required to pay
the fee apparently charged by his treating physicians for the time
they spent sitting for depositions taken by Sister. Luna grounds
his argument in the text of rule 26(a)(4)(B) of the Utah Rules of
Civil 	Procedure, 	which 	states 	that 	“the 	party 	taking 	the
deposition shall pay the expert’s reasonable hourly fees for
attendance at the deposition.” Sister accuses Luna of taking the
language of that provision out of context, because she reads that
particular 	subsection 	as 	being 	concerned 	only 	with 	retained
experts, and the depositions in question here were of non-retained
experts. Sister points out that the applicable section of the rule
dealing with non-retained experts contains no similar provision
about allocation of costs, see Utah R. Civ. P. 26(a)(4)(E), and
asserts that, in this situation, the rule does not require either
party to pay a professional witness fee to non-retained experts,
and that therefore the allocation of any such costs is a matter left
to the discretion of the district court. We think Sister has the
better of this argument.
¶44 	Rule 26(a)(4) begins, in subsection (A), with a discussion
of the disclosure requirements for witnesses who are “retained
or 	specially 	employed 	to 	provide 	expert 	testimony.” 	Id. 	R.
26(a)(4)(A). Specifically, with regard to those witnesses, parties
(…continued)
statements, “we can affirm summary judgment on any ground
or theory apparent on the record, regardless of whether it was
identified by the district court as the basis of its ruling.” Gardiner
v. Anderson, 2018 UT App 167, ¶ 16, 436 P.3d 237. In our view, it
is apparent from the record that Luna has no evidence of Sister’s
negligence other than Driver’s testimony about the color of the
light, and that Sister is entitled to summary judgment on this
alternative ground.

Luna v. Luna
20170994-CA 	24 	2019 UT App 57
must provide a disclosure that includes, among other things, the
expert’s 	“qualifications, 	including 	a 	list 	of 	all 	publications
authored within the preceding 10 years” and “a list of any other
cases in which the expert has testified . . . within the preceding
four years,” as well as “all data and other information that will
be relied upon by the witness in forming” her opinions. Id.
Immediately 	following 	this 	list 	of 	specific 	requirements 	for
disclosure of retained experts, subsection (B) appears, and reads,
in its entirety, as follows:
Further discovery may be obtained from an expert
witness either by deposition or by written report. A
deposition shall not exceed four hours and the party
taking the deposition shall pay the expert’s reasonable
hourly fees for attendance at the deposition. A report
shall be signed by the expert and shall contain a
complete statement of all opinions the expert will
offer at trial and the basis and reasons for them.
Such an expert may not testify in a party’s case-in-
chief concerning any matter not fairly disclosed in
the report. The party offering the expert shall pay
the costs for the report.
Id. R. 26(a)(4)(B) (emphasis added). Luna focuses solely on the
emphasized 	language, 	while 	Sister 	asks 	us 	to 	consider 	the
provision as a whole, and in context. When viewed in context,
we 	think 	it 	evident 	that 	subsection 	(B)—as 	opposed 	to
subsection (E)—covers only retained experts.
¶45 	It is clear that subsection (A) deals only with retained
experts. The specific disclosure requirements found there differ
markedly from the less-stringent disclosure requirements found
in subsection (E), the subsection regarding non-retained experts,
with regard to whom parties need only disclose “a written
summary of the facts and opinions to which the witness is
expected 	to 	testify.” 	Id. 	R. 	26(a)(4)(E). 	The 	first 	words 	of

Luna v. Luna
20170994-CA 	25 	2019 UT App 57
subsection (B)—“[f]urther discovery”—are a clear reference to
subsection (A), and indicate that a party may obtain more
information, in addition to that already disclosed, regarding a
retained expert in one of two ways: “by deposition or by written
report.” Id. R. 26(a)(4)(B). This provision cannot possibly be
referring to non-retained experts, because the rule does not
contemplate reports from non-retained experts. See id. R. 26
advisory committee notes (stating that, “because a party who
expects to offer . . . testimony [from non-retained experts]
normally cannot compel such a witness to prepare a written
report, further discovery must be done by interview or by
deposition”); see also Drew v. Lee, 2011 UT 15, ¶ 18, 250 P.3d 48
(stating that “written reports are required only of retained or
specially employed experts” (quotation simplified)). Moreover,
the entire “report or deposition” choice that is the subject of
subsection (B) is one that the rule contemplates will be made
only 	with 	regard 	to 	retained 	experts. 	And 	finally, 	there 	is
language in subsection (B) that, if it applied to non-retained
experts, 	would 	render 	similar 	language 	in 	subsection 	(E)
superfluous. Compare Utah R. Civ. P. 26(a)(4)(B) (stating that “[a]
deposition shall not exceed four hours”), with id. R. 26(a)(4)(E)
(stating that “[a] deposition of such a witness may not exceed
four hours”). Thus, the language in rule 26(a)(4)(B) applies only
to discovery from retained experts, and therefore does not assist
Luna here, because the depositions Sister took were of Luna’s
non-retained experts.
¶46 	The rule that does apply here is the subsection dealing
with non-retained experts. See Utah R. Civ. P. 26(a)(4)(E). But, as
noted, that subsection does not contain any provision assigning
responsibility for payment of any hourly fee the non-retained
expert might charge for her time during a deposition.3 Thus,
3. Not only does this rule differ from the Utah rule regarding
retained experts, see Utah R. Civ. P. 26(a)(4)(B), but it also differs
(continued…)

Luna v. Luna
20170994-CA 	26 	2019 UT App 57
nothing in any applicable rule requires Sister to pay the hourly
fee of any non-retained expert witness that she deposes, and
nothing in any applicable rule requires the district court to
allocate those fees or related costs to any particular party in any
particular way.4
¶47 	Luna argues—and Sister does not dispute—that there
exists 	a 	“custom” 	among 	lawyers 	in 	Utah 	that 	the 	party
requesting a deposition pay the court reporter’s fee for the
original deposition transcript, and analogizes that the same rule
should 	hold 	true 	for 	hourly 	fees 	charged 	by 	non-retained
experts. See Caldwell v. Wheeler, 89 F.R.D. 145, 147 (D. Utah 1981)
(citing 	a 	study 	indicating 	that, 	“[p]rior 	to 	1970, 	. 	. 	. 	the
overwhelming custom among lawyers was that the instigating
party 	paid 	for 	the 	original 	deposition” 	transcript); 	see 	also
Kirkham v. Societe Air France, 236 F.R.D. 9, 12 (D.D.C. 2006)
(stating that “professional standards in some areas may permit
treating 	physicians 	to 	be 	compensated 	for 	time 	spent 	as 	a
witness or at a deposition”). But in the posture of this case,
questions about the existence of any such “custom” are academic
(…continued)
from the applicable federal rule, see Fed. R. Civ. P. 26(b)(4)(E)
(stating that “unless manifest injustice would result, the court
must require that the party seeking discovery: (i) pay the expert
a reasonable fee for time spent in responding to discovery
under” the rule providing for depositions of experts).
4. The Utah Rules of Civil Procedure require parties to pay
subpoenaed witnesses “the fees for one day’s attendance and the
mileage allowed by law,” Utah R. Civ. P. 45(b)(2), which Sister
did in this case. These fees are nominal and calculated on a per
diem basis, see Utah Code Ann. § 78B-1-119 (LexisNexis 2018),
whereas a professional witness’s fee is usually calculated by the
hour and may constitute a more significant amount of money.

Luna v. Luna
20170994-CA 	27 	2019 UT App 57
because, even if it were the custom in Utah that the party
requesting the deposition of a non-retained expert should pay
any costs or fees associated with that deposition, such a custom
would not serve to create a mandatory obligation in the absence
of 	a 	rule 	so 	stating, 	and 	could 	conceivably 	be 	varied 	in
appropriate cases.5
¶48 	In a situation like this, where no rule mandates the
allocation of these fees in any particular way, we default to the
general rule that “[district] courts have broad discretion in
matters of discovery.” Daniels v. Gamma West Brachytherapy, LLC,
2009 UT 66, ¶ 54, 221 P.3d 256 (quotation simplified). While
district courts could conceivably take asserted “custom” into
account when assessing discovery disputes like this one, there is
no indication on this record that the district court abused its
discretion in reaching its decision to deny Luna’s statement of
discovery issues. We disagree with Luna that any provision of
rule 26 mandates the opposite result, and Luna has not met his
burden 	of 	demonstrating 	that 	the 	district 	court 	otherwise
committed an abuse of discretion.
CONCLUSION
¶49 	We 	conclude 	that 	the 	district 	court 	properly 	treated
Luna’s deposition testimony about the color of the traffic light as
a binding judicial admission. However, the district court erred
when 	it 	treated 	Luna’s 	equivocal 	testimony 	regarding 	his
opinion of Sister’s driving that day as a judicial admission.
Nevertheless, we affirm the district court’s ultimate grant of
summary judgment on the merits of this case, because Luna
presented 	the 	district 	court 	with 	no 	evidence 	of 	Sister’s
5. To the extent that the text of the rules does not match local
custom, that is a matter the parties can bring to the attention of
the committee tasked with drafting and amending the rules.

Luna v. Luna
20170994-CA 	28 	2019 UT App 57
negligence, other than Driver’s testimony about the color of the
light. Finally, we discern no abuse of discretion in the district
court’s discovery order.
¶50 	Affirmed.