LECHLER v. CITY AND COUNTY OF SAN FRANCISCO (1998)

In this slip-and-fall case we conclude the trial court erred in granting defendants' motion for summary judgment.   That court determined that plaintiff's affidavits submitted in opposition to the motion must as a matter of law be disregarded because they contradicted “admissions” contained in her deposition testimony concerning the cause of her slip and fall.   We hold that the trial court's rule was not compelled by D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 112 Cal.Rptr. 786, 520 P.2d 10, and that the ruling denied plaintiff her right to jury trial conferred by the California Constitution, article I, section 16.

Our Case

A stretch of public sidewalk outside a Zim's restaurant in San Francisco has three imperfections:  a crack (1) running perpendicular to the street and traversing most of the sidewalk;  a height disparity (2) where adjoining sidewalk plates meet, which is perpendicular to the street and traverses the entire width of the sidewalk, and a crack (3) which runs parallel to the street and leads away from a square hole cut around a tree planted in the sidewalk.

On the evening of July 28, 1994, plaintiff Margaret Lechler was going to have dinner at the restaurant when she tripped and fell on the sidewalk.   Plaintiff, who was 61 years old at the time, filed a complaint for damages against Zim's and the City and County of San Francisco (City).   Her complaint consisted of one cause of action for premises liability.   Plaintiff alleged that she was injured after she “tripped over a root of a tree on the property of Defendant [ ] Zim's ․ which had been allowed by Defendant[ ] City ․ to protrude through the sidewalk.”

These allegations suggest that plaintiff was identifying defect (3) as the cause of her injuries.   At her deposition, however, she stated that it was defect (2) which caused her to trip.   Armed with this information, the City moved for summary judgment on the ground that defect (2) constituted a “trivial defect” as a matter of law.   A second ground for the motion was the City's claimed lack of notice of any defect in the sidewalk.   Zim's embraced both of these grounds when it joined the City's motion.

The gist of plaintiff's opposition to the motion was that her injuries resulted from her tripping on either defect (1) or defect (3).   The City responded that plaintiff's showing in opposition to the motion was “inadmissible because [it] contradicts her deposition testimony.”   The trial court granted the City's motion, concluding (among other things) that “the alleged defective condition is trivial as a matter of law” and that plaintiff's opposition “did not raise a triable issue of fact as to the nature of the defect because:  (1) it contradicted her deposition testimony ․ and (2) it demonstrates that Plaintiff cannot meet her burden of establishing that a dangerous condition caused her injuries because she is unsure of what caused her to fall.”   Separate judgments in favor of Zim's and the City were entered, from which plaintiff perfected this timely appeal.

The City and Zim's were not entitled to summary judgment on the theory that plaintiff was injured by what was a trivial defect as a matter of law

 The so-called “trivial defect” doctrine is well established:  “It is a matter of common knowledge that it is impossible to maintain a sidewalk in a perfect condition.   Minor defects are bound to exist.   A municipality cannot be expected to maintain the surface of its sidewalks free from all inequalities and from every possible obstruction to travel.   Minor defects due to continued use, or action of the elements, or other cause, will not necessarily make the city liable for injuries caused thereby.   What constitutes a minor defect is not always a mere question of fact.   If the rule were otherwise the city could be held liable upon a showing of a trivial defect.”  (Whiting v. City of National City (1937) 9 Cal.2d 163, 165, 69 P.2d 990.) ¹

 California does not classify defects as trivial or substantial according to a tape measure test-the mere depth or height of the defect in comparison to the rest of the sidewalk.   Instead, courts look to the totality of the circumstances, which include the physical characteristics of the defect (i.e., size, jagged edges, broken pieces, exposed rebar), the setting (lighting, weather, other factors affecting visibility), and history (plaintiff's familiarity with the area, any previous injuries attributable to the defect).  (E.g., Dolquist v. City of Bellflower (1987) 196 Cal.App.3d 261, 267-268, 241 Cal.Rptr. 706;  Ursino v. Big Boy Restaurants (1987) 192 Cal.App.3d 394, 396, 237 Cal.Rptr. 413;  Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 731-732, 139 Cal.Rptr. 876.)

Many of the relevant circumstances are established by plaintiff's testimony at her deposition.

The accident occurred at approximately 9 p.m. She had been to this particular Zim's many times.   She was walking at her normal brisk pace (“I always walk fast”).   She was looking straight ahead, not at her feet.   There was no rain, and the sidewalk was dry.   There was no “loose debris” where she fell.   Plaintiff did not recall whether a moon was out, or whether there were street lights;  all she remembered was that it was dark and “there was the lights coming from the restaurant” but they provided “not much” illumination.

Most crucially, in her deposition plaintiff testified that she fell on a “raised portion” of the sidewalk, not a crack.   The clear implication is that plaintiff was referring to defect (2) as the cause of her fall.   But plaintiff went further-she specifically marked defect (2) on photographs shown to her at her deposition.   However, in the declaration she submitted in opposition to the summary judgment motion, plaintiff stated that she tripped on “either a large crack in the sidewalk or a raised portion of the sidewalk near a tree.”   She further stated she “is not certain whether she tripped over the one to two inch crack in the sidewalk or over pavement that had been pushed up by roots protruding from a tree.”   When compared to photographs of the sidewalk, it is obvious these statements refer to defects (1) and (3).

Relying upon a commonly understood tenet of summary judgment procedure, the so-called D'Amico rule which provides that a party opposing the motion cannot use statements in her declarations to contradict her own previously given deposition testimony to create a disputed issue of material fact, defendants maintain plaintiff is bound by her deposition testimony that she tripped on defect (2).

With respect to defect (2), the City and Zim's argue that the uncontradicted evidence shows that the height differential between the sidewalk slabs was no more than one-half inch.   Having pinpointed the exact location and nature of the cause of plaintiff's fall, the City and Zim's then rely upon a number of decisions supposedly holding that defects of this nature up to one inch in height are trivial as a matter of law.   This amounts to invoking the discredited tape measure test and treating the result as dispositive.   Such an approach has long been recognized as inappropriate.   As Division Two of this Court noted more than 40 years ago:  “The size of the defect is only one circumstance [ ] to be considered, as no court has fixed an arbitrary measurement in inches below which a defect is trivial as a matter of law and above which it becomes a question of fact whether or not the defect is dangerous.”  (Beck v. City of Palo Alto (1957) 150 Cal.App.2d 39, 43, 309 P.2d 125.)

The topic of height differential between adjoining pavement sections, and the decisions cited by the City, were exhaustively examined in Fielder v. City of Glendale, supra, 71 Cal.App.3d 719, 139 Cal.Rptr. 876.   The court's conclusion was that “The defect of a slightly depressed sidewalk only has been held to be not dangerous, as a matter of law, in those cases where no aggravating circumstances or facts were present.”  (Id. at p. 726, 139 Cal.Rptr. 876.)   Defects have been found trivial as a matter of law where the accident occurred in broad daylight (e.g., Barrett v. City of Claremont (1953) 41 Cal.2d 70, 72, 256 P.2d 977;  Meyer v. City of San Rafael (1937) 22 Cal.App.2d 46, 47, 70 P.2d 533), or perfect weather (Ursino v. Big Boy Restaurants, supra, 192 Cal.App.3d 394, 396, 237 Cal.Rptr. 413), or when the defect was plainly visible (Whiting v. City of National City, supra, 9 Cal.2d 163, 165, 69 P.2d 990), or known to the victim (e.g., Whiting v. City of National City, supra;  Dunn v. Wagner (1937) 22 Cal.App.2d 51, 53, 70 P.2d 498).   Here, however, there is evidence of several “aggravating circumstances.”

In plaintiff's favor are the factors that her accident did not occur in broad daylight, nor did it involve a patently visible defective condition.   It is undisputed that plaintiff's fall occurred at night.   The photographs submitted by the City de-emphasize the size of the defects by showing them in full sunlight.   Plaintiff's photographs were taken at night, and are therefore more illustrative of conditions at the time of her fall.   Plaintiff's photographs were obviously made with flashbulbs, but their detail is still poor.   Neither side's photographs suggest that overhead lighting was a factor.   Neither side's photographs show the amount of light cast by Zim's at night, but the darkness of plaintiff's photographs suggests that it is not much.   Unlike the actual cracks, defect (2) has no jagged edges or discernible changes in appearance.   Defect (2) seems to have a uniform height differential across the entire width of the sidewalk slab.   Thus it appears that the defect would not be prominent in low light at night.   The net effect of the evidence tends to corroborate plaintiff's assertion that defect (1) was hardly conspicuous.   It is relevant to note that a pedestrian “is not required to keep ․ eyes fixed on the ground or to be on a constant lookout for danger.”  (Peters v. City & County of San Francisco (1953) 41 Cal.2d 419, 424, 260 P.2d 55.)   Plaintiff was not shown to have been walking at such a brisk pace that it impaired her ability to perceive or avoid a dangerous condition on the sidewalk.   A final circumstance favoring plaintiff is that while she may have been a frequent patron of the Zim's, she had, according to her uncontradicted declaration, “previously ․ park[ed] in the lot behind the restaurant and enter[ed] through the back door.”   Prior to the night of her fall she had “never walked to the restaurant before this evening and was unfamiliar with the sidewalk that abuts it in front.”   On the other hand, there was no complicating weather condition, nor was there debris or other extraneous material on the sidewalk.

In these circumstances the question has to be posed in these terms:  Could reasonable persons differ as to whether elevation of the walkway of no more than one-half inch higher than the adjoining section of sidewalk, viewed at night and in poorly lit conditions, would pose a danger to a pedestrian who had never been on the sidewalk?   We believe that reasonable minds could differ.   Accordingly, defect (2) should not have been characterized as trivial as a matter of law for purposes of a summary judgment motion.

The City, but not Zim's, is nevertheless entitled to summary judgment because plaintiff failed to produce evidence that the City had notice of the injury-causing defect

 As a governmental subdivision, the City could not be subject to liability unless it had actual or constructive notice of a dangerous condition of its property.  (Gov.Code, § 835.)   The City's motion for summary judgment was supported by evidence that the City had not received any complaints about the condition of the sidewalk prior to plaintiff's fall.   Plaintiff stated in her declaration that approximately six months before her accident “and on two separate occasions” she was inside the restaurant where she observed “two persons who fell on this same sidewalk․”  Plaintiff's showing might ordinarily suffice to establish constructive notice of the sidewalk's condition as a material fact in dispute.  (See, e.g., Cal. Government Tort Liability Practice 3d (Cont.Ed.Bar 1992) §§ 3.34-3.37, pp. 342-349.)   It does not matter in this context whether plaintiff is confined to defect (2).   Her declaration has nothing in it establishing that the City was aware of injuries caused by, or dangers posed by, any of the defects in the sidewalk outside the Zim's. This omission is fatal to her sole cause of action against the City. (See id.   § 3.34, p. 342;  State of California v. Superior Court (1968) 263 Cal.App.2d 396, 399, 69 Cal.Rptr. 683[“[I]t is not enough to show that ․ [public] employees had a general knowledge․  There must be some evidence that the employees had knowledge of the particular dangerous condition in question”].)   The summary judgment in favor of the City is therefore sound and must be affirmed.

 The same conclusion does not apply to Zim's. In the absence of clear and unambiguous statutory language expressly establishing liability, Zim's would not have a duty to maintain the public sidewalk abutting its property.  (E.g., Sexton v. Brooks (1952) 39 Cal.2d 153, 157, 245 P.2d 496;  Williams v. Foster (1989) 216 Cal.App.3d 510, 515-522, 265 Cal.Rptr. 15.)   San Francisco has enacted an ordinance imposing such a duty.²  The duty to maintain premises encompasses a duty to inspect.  (See, e.g., Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 714-715; , 52 Cal.Rptr.2d 821 6 Witkin, Summary of Cal. Law (9th ed.   1988) Torts, § 926, p. 297.)   The sole evidence submitted by Zim's on the motion was a three-paragraph declaration from the restaurant's president, who stated that prior to plaintiff's accident he “had never received any complaints about the condition of the sidewalk,” nor was he aware “that anyone had been injured on the sidewalk located in front of the restaurant.”   There is no mention of any inspections.   Zim's evidence is clearly insufficient to establish as a matter of law that Zim's did not breach its duty to maintain the sidewalk in good condition.   The summary judgment in favor of Zim's must be reversed.

The D'Amico decision

In ruling upon the motion for summary judgment the court concluded plaintiff had failed to raise a triable issue of fact as to whether a dangerous condition caused her to fall because her declaration identified defects (1) and (3) and this “admission” contradicted her deposition testimony which identified defect (2) as the culprit.   Its ruling is consistent with a line of case authority which relies upon D'Amico v. Board of Medical Examiners, supra, 11 Cal.3d 1, 22, 112 Cal.Rptr. 786, 520 P.2d 10.³

 The limited question before us is whether D'Amico holds that in ruling on a motion for summary judgment the trial court may disregard statements in a declaration by the party opposing the motion if it concludes those statements conflict with previously given deposition testimony by that same party.

In D'Amico our Supreme Court addressed the question of how the fruits of discovery could be used by a party moving for summary judgment.   In that case the Board of Medical Examiners was served with “an extensive set of interrogatories and requests for admissions” which were “directed to determining what facts if any, might justify” for the purposes of licensure, distinctions it was making between medical practitioners with osteopathic degrees and those with allopathic degrees.  (D'Amico v. Board of Medical Examiners, supra, 11 Cal.3d at pp. 10, 22, 112 Cal.Rptr. 786, 520 P.2d 10.)   Certain of the answers to requests for admissions filed on behalf of the Board were relied upon by plaintiffs in their affidavits in support of their motion for summary judgment.  (Id. at p. 11, fn. 8, 112 Cal.Rptr. 786, 520 P.2d 10.)

Thus the only two discovery tools at issue in D'Amico were interrogatories and requests for admissions.   Against this procedural background the court then described the rationale for its holding by explaining that “admissions against interest have a very high credibility value.   This is especially true when, as in this case, the admission is obtained not in the normal course of human activities and affairs, but in the context of an established pretrial procedure whose purpose is to elicit facts.   Accordingly, when such an admission becomes relevant to the determination ․ of whether or not there exist triable issues of fact ․ between the parties, it is entitled to and should receive a kind of deference not normally accorded evidentiary allegations in affidavits.”  (Original italics.)  (D'Amico v. Board of Medical Examiners, supra, 11 Cal.3d at p. 22, 112 Cal.Rptr. 786, 520 P.2d 10.) ⁴

 We are as a lower court obliged under the doctrine of stare decisis to follow the holding of D'Amico.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)   Therefore we are bound by D'Amico's holding, but not by its dicta.   The opinion of an appellate court is not authority for every statement it contains, but only for those points raised and decided.  (Santisas v. Goodin (1998) 17 Cal.4th 599, 620, 71 Cal.Rptr.2d 830, 951 P.2d 399.)   For the purposes of stare decisis we construe the language of an opinion with reference to the facts presented by the case.  (Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1157, 278 Cal.Rptr. 614, 805 P.2d 873.)

D'Amico did not present a factual conflict between deposition testimony and a subsequent declaration from the same party.   Moreover, it did not raise an issue of party credibility at all because the admissions in D'Amico involved “binding concessions” made by the Attorney General as to certain facts upon which the constitutionality of the legislative scheme depended.  (D'Amico v. Board of Medical Examiners, supra, 11 Cal.3d at pp. 13, 15-16, 112 Cal.Rptr. 786, 520 P.2d 10.)   These binding concessions were made in response to a formal request for admissions directed to a party.   (Id. at pp. 10-11, 112 Cal.Rptr. 786, 520 P.2d 10;  Code Civ. Proc., § 2033.)   Such admissions are conclusive against the party who makes them.   (Code Civ. Proc., § 2033, subd. (n).)

Therefore the procedural context of D'Amico does not require us to read the opinion's general comments about “admissions” or “admissions against interest” to be more than dicta as to statements contained in deposition testimony by a party which statements at best constitute evidentiary “admissions.” ⁵

a. Admissions in Discovery

Not all admissions are created equal.   The distinction between conclusive or judicial admissions and evidentiary admissions has been blurred by an overbroad reading of D'Amico.   Treatises on California discovery note the unique nature of a formal request for admissions made under Code of Civil Procedure section 2033.   Such admissions expedite trial by limiting the scope of the dispute.  (Brigante v. Huang (1993) 20 Cal.App.4th 1569, 1576-1577, 25 Cal.Rptr.2d 354;  Fredericks v. Kontos Industries, Inc. (1987) 189 Cal.App.3d 272, 276, 234 Cal.Rptr. 395.)   They represent “ ‘a studied response, made under sanctions against easy denials' that occur ‘under the direction and supervision of counsel, who has full professional realization of their significance.’  [Citation.]  There would be little point to this method of discovery if the resulting admissions are no different from the evidentiary ones that a litigant can obtain from an opponent via deposition or interrogatories.”  (1 Hogan & Weber, Cal. Civil Discovery (1997) § 9.20, p. 508;  see also DeMeo & DeMeo, Cal. Deposition and Discovery Practice (1998) § 63.01[3], p. 63-12.)

b. Admissions on Summary Judgment

Nonetheless a leading practice guide, citing D'Amico, asserts that a party opposing a motion for summary judgment may be bound not only by Code of Civil Procedure section 2033 admissions, but by admissions made in answers to interrogatories or admissions made in the course of deposition, all three of which it collectively characterizes as “judicial admissions.”  (Weil & Brown, Cal. Practice Guide:  Civil Procedure Before Trial 3 (Rutter 1998) § 10:155 rev. # 1, 1998.)   Without comment the same guide a few paragraphs later notes that if the case went to trial the trier of fact could believe the party's trial testimony instead of what the party had said in deposition.  “But for summary judgment purposes, deposition testimony carries ‘great weight’;  and affidavits repudiating deposition testimony can be disregarded.  ․ [Citation.]”  (Id. at § 10.157.3.)

While many courts have restated this “rule” uncritically in reliance upon D'Amico, others have expressed reservations about its application.   For example, another division of this court has cautioned that “an uncritical application of the D'Amico decision can lead to anomalous results, inconsistent with the general principles of summary judgment law.”  (Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 482, 261 Cal.Rptr. 735.)   That decision further cautioned that “summary judgment should not be based on tacit admissions or fragmentary and equivocal concessions, which are contradicted by other credible evidence.”  (Ibid.;  accord, People ex rel. Dept. of Transportation v. Ad Way Signs, Inc. (1993) 14 Cal.App.4th 187, 200, 17 Cal.Rptr.2d 496.)

And there's the rub.   On summary judgment a court which disregards a declaration it finds to be in conflict with an earlier deposition given by the party-declarant is making a credibility determination.   It is deciding that the “admission” plaintiff made in his deposition which would be merely evidentiary at trial is in fact a judicial or conclusive admission.   Some courts have attempted to avoid the D'Amico problem by finding a credible explanation for the inconsistent positions plaintiff has taken.  (Niederer v. Ferreira (1987) 189 Cal.App.3d 1485, 1504, 234 Cal.Rptr. 779 [conflict between original declaration and deposition explained by supplemental declaration].)

Occasionally a court will candidly concede it is making a credibility determination as in Leasman v. Beech Aircraft Corp. (1975) 48 Cal.App.3d 376, 121 Cal.Rptr. 768, decided by another division of this court.   Ms. Leasman alleged injuries to her nervous system caused by an emergency landing then conceded at deposition that her nervous condition was a consequence of marital difficulties.   She did not create a triable issue of fact by opposing summary judgment with a counterdeclaration attributing her condition to the landing.  (Id. at p. 380, 121 Cal.Rptr. 768.)   The court declared with “due regard for the issues of credibility in this case ․ as a matter of law the evidentiary facts stated in [her] counterdeclaration are irrelevant and evasive.”  (Id. at p. 383, 121 Cal.Rptr. 768;  see also People ex rel. Dept. of Transportation v. Ad Way Signs, Inc., supra, 14 Cal.App.4th at pp. 187, 200-201, 17 Cal.Rptr.2d 496 [“credible evidence” of a course of conduct created a triable issue despite a conflicting Code Civ. Proc., § 2033 admission.].)

Right to Jury Trial

Under our state Constitution litigants have a right to trial by jury;  finding facts is the task of that jury.  (Cal. Const., art.   I, § 16;  Dixon v. Superior Court (1994) 30 Cal.App.4th 733, 746, 36 Cal.Rptr.2d 687.)   Witness credibility is the quintessential issue of fact.  (People v. Cudjo (1993) 6 Cal.4th 585, 612, 25 Cal.Rptr.2d 390, 863 P.2d 635;  Estate of Teel (1944) 25 Cal.2d 520, 526, 154 P.2d 384.)

 The role of the court in granting summary judgment is to decide whether issues of fact exist, not to resolve them on the merits.  (Molko v. Holy Spirit Assn., supra, 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46.)   There is then, a considerable problem which goes beyond mere consistent treatment of the products of discovery when courts on summary judgment become involved in weighing credibility of what at trial are merely “evidentiary admissions.”   As we have pointed out, were these same “admissions” made in depositions to be contradicted at trial by the party-declarant who takes the witness stand, at worst the party could be impeached.   But ultimately the credibility of that party would be decided by the jury after it had an opportunity to assess the party's demeanor.

 When-as in the case at hand-a court determines as a matter of law that deposition testimony must prevail over any conflicting statements in declarations submitted by the same party in opposing summary judgment, the court in effect usurps the role of a trier of fact.   Thus, when the trial court concluded that plaintiff's “admission” in her deposition testimony that she tripped over defect (2) was conclusive and for that reason disregarded her declaration “admissions” identifying defects (1) and (3) as the cause of her fall the court denied plaintiff her right to trial by jury.

Conclusion

 In the case before us, to affirm the summary judgment as to Zim's we would have to conclude that plaintiff's deposition “admission” that she had tripped over defect (2) automatically rendered incredible her subsequent declaration submitted in opposition to the motion stating she had tripped over defect (1) or (3).   To make such a determination purely on the basis of a conflict between plaintiff's deposition and her later declaration constituted a credibility determination that was beyond the province of the trial court to make on a motion for summary judgment and denied plaintiff her right to jury trial conferred by the California Constitution, article I, section 16.

The summary judgment in favor of the City is affirmed.   The City shall recover its costs on appeal from plaintiff.   The summary judgment in favor of Zim's is reversed.   Plaintiff shall recover her costs on appeal from that judgment.

FOOTNOTES

1.   Whiting was the first time our Supreme Court had occasion to adopt and to apply the trivial defect doctrine (and use it to reverse a plaintiff's judgment), but a year before it made favorable reference to the rule in a related context in Nicholson v. City of Los Angeles (1936) 5 Cal.2d 361, 365, 54 P.2d 725.  Nicholson cited and quoted with obvious approval a statement of the trivial defect doctrine from Taylor v. Manson (1908) 9 Cal.App. 382, 99 P. 410.  Taylor, which appears to be the earliest California expression on the subject, is also notable because almost a century ago a court of this state deemed it “a matter of common knowledge that no sidewalk is perfect, and that certain irregularities and inequalities in the surface of such sidewalks exist, not only in the city and county of San Francisco, but in all cities.”  (Id. at pp. 393-394, 99 P. 410, emphasis added.)

2.   The pertinent part of section 706 of the San Francisco Public Works Code provides:  “It shall be the duty of the owners of lots or portions of lots immediately adjacent to any portion of a public street, avenue, alley, lane, court or place to maintain the sidewalks and sidewalk area ․ fronting or adjacent to their property in good repair and condition․  Any person who suffers injury or property damage as a legal result of the failure of the owner to so maintain the sidewalks and sidewalk areas shall have a cause of action for such injury or property damage against such property owner.   The City and County of San Francisco shall have a cause of action for indemnity against such property owner for any damages it may be required to pay as satisfaction of any judgment or settlement of any claim that results from such injury to persons or property as a legal result of the failure of the owner to maintain the sidewalks and sidewalk areas in accordance with this Section.”

3.   E.g., Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1120, 75 Cal.Rptr.2d 27;  Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 961, 62 Cal.Rptr.2d 142;  St. Mary Medical Center v. Superior Court (1996) 50 Cal.App.4th 1531, 1540, 58 Cal.Rptr.2d 182;  Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 653-654, 51 Cal.Rptr.2d 907;  Daddario v. Snow Valley, Inc. (1995) 36 Cal.App.4th 1325, 1340-1341, 43 Cal.Rptr.2d 726;  Jacobs v. Fire Ins. Exchange (1995) 36 Cal.App.4th 1258, 1270, 42 Cal.Rptr.2d 906;  Worthington v. Rusconi (1994) 29 Cal.App.4th 1488, 1493, fn. 4, 35 Cal.Rptr.2d 169;  Spinello v. Amblin Entertainment (1994) 29 Cal.App.4th 1390, 1396, fn. 7, 34 Cal.Rptr.2d 695;  Frazer v. Dixon Unified School Dist. (1993) 18 Cal.App.4th 781, 796, fn. 18, 22 Cal.Rptr.2d 641;  Preach v. Monter Rainbow (1993) 12 Cal.App.4th 1441, 1451, 16 Cal.Rptr.2d 320;  Tinsley v. American President Lines, Ltd. (1992) 6 Cal.App.4th 562, 570, 8 Cal.Rptr.2d 851;  Visueta v. General Motors Corp. (1991) 234 Cal.App.3d 1609, 1613, 286 Cal.Rptr. 402;  Sandoval v. Mercury Ins. Group (1991) 229 Cal.App.3d 1, 10, 278 Cal.Rptr. 533;  Rivera v. Southern Pacific Transportation Co. (1990) 217 Cal.App.3d 294, 299-300, 266 Cal.Rptr. 11;  Thompson v. Williams (1989) 211 Cal.App.3d 566, 573, 259 Cal.Rptr. 518;  Nunez v. R'Bibo (1989) 211 Cal.App.3d 559, 563, 260 Cal.Rptr. 1;  Hejmadi v. AMFAC, Inc. (1988) 202 Cal.App.3d 525, 553, 249 Cal.Rptr. 5;  Advanced Micro Devices, Inc. v. Great American Surplus Lines Ins. Co. (1988) 199 Cal.App.3d 791, 800, 245 Cal.Rptr. 44;  Hoover Community Hotel Development Corp. v. Thomson (1985) 167 Cal.App.3d 1130, 1141-1142, 213 Cal.Rptr. 750;  State Farm Mut. Auto. Ins. Co. v. Eastman (1984) 158 Cal.App.3d 562, 573, 204 Cal.Rptr. 827;  Girard v. Ball (1981) 125 Cal.App.3d 772, 781-782, 178 Cal.Rptr. 406;  Gray v. Reeves (1977) 76 Cal.App.3d 567, 573-574, 142 Cal.Rptr. 716;  Leasman v. Beech Aircraft Corp. (1975) 48 Cal.App.3d 376, 382, 121 Cal.Rptr. 768.)

4.   To the extent D'Amico says anything about a conflict between deposition testimony and the same party's declaration it does so only indirectly by discussing King v. Andersen (1966) 242 Cal.App.2d 606, 51 Cal.Rptr. 561.   In King plaintiff had been stopped by a store security guard for shoplifting.   Acquitted of a criminal charge he then sued for false arrest and assault.  (Id. at p. 608, 51 Cal.Rptr. 561.)   In deposition plaintiff twice asserted the security guard had not used force to detain him, but in his affidavit in opposition to summary judgment plaintiff asserted the guard had used force.  (Id. at p. 610, 51 Cal.Rptr. 561.)   The King court concluded plaintiff's account in deposition could not possibly be withdrawn without “committing the grossest perjury” and accordingly his deposition testimony constituted “a clear and unequivocal admission” no force had been used against him.  (Ibid.) King concluded that in the face of plaintiffs' deposition testimony that no force had been used there was no substantial evidence of a triable issue of fact.  (Ibid.)

5.   The issue of a conflict between depositions and declarations on a motion for summary judgment did arise in Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 252 Cal.Rptr. 122, 762 P.2d 46.   In that case the plaintiffs had testified at deposition that they joined the Unification Church because it satisfied their “personal concerns and anxieties.”   When the Church moved for summary judgment on a claim of fraud plaintiffs submitted declarations from a psychologist and psychiatrist supporting plaintiffs' theory that they had been brainwashed into a mental state in which they no longer could exercise their will to turn down membership in the Church.  (Id. at pp. 1108-1110, 252 Cal.Rptr. 122, 762 P.2d 46.)Finding that the declarations of the experts were not in conflict with the deposition testimony of the plaintiffs, the court held that the declarations were not made inadmissible by D'Amico.  (Molko v. Holy Spirit Assn., supra, 46 Cal.3d at pp. 1110-1111, 252 Cal.Rptr. 122, 762 P.2d 46.)

POCHÉ, Associate Justice.

HANLON, P.J., and REARDON, J., concur.