## Facts

- Terry Cole, a carpenter employed by framing subcontractor R.M. Stowall, fell about 20 feet to a concrete floor while working on a Los Angeles construction project and was injured.
- Cole was standing with one foot on each of two wooden ceiling joists while nailing a spreader block between them; the joists sat in strap-like hangers welded to steel I-beams.
- Cole sued Shepard & Morgan (general contractor) and Simpson Company (manufacturer of the joists/hangers).
- Shepard filed a cross-complaint for indemnity against Stowall, Simpson, and Lee & Daniel, Inc. (subcontractor/supplier of the joists and hangers).
- In response to Cole’s requests for admissions under Cal. Code Civ. Proc. § 2033, Shepard admitted without qualification that it contended the joist and hanger did not constitute a hazard to Cole.
- On Cole’s motion in limine, the trial court barred Shepard from introducing evidence that the joists/hangers were hazardous or defective in Cole’s action.
- Cole settled with Simpson, and then Cole and Shepard settled; litigation continued only on Shepard’s cross-complaint for indemnity.

## Issues

1. Whether a defendant’s admissions made in response to a plaintiff’s request for admissions under Cal. Code Civ. Proc. § 2033 are binding against that defendant in its cross-action for indemnity against a subcontractor.
2. Whether a defendant may defend the plaintiff’s tort action on a “no hazard” theory while prosecuting an indemnity cross-claim on the alternative theory that, if a hazard existed, it was caused by the cross-defendant.

## Decision

- The California Supreme Court reversed the summary judgment entered for Lee & Daniel, Inc.
- Shepard’s admissions to Cole were not binding in Shepard’s indemnity cross-action against Lee under the circumstances.
- Shepard was permitted to take seemingly inconsistent positions: denying the existence of a hazard in defending Cole’s claim, while alleging in the cross-action that any hazard was attributable to Lee.
- Because the admissions were not conclusive in the cross-action, they did not eliminate triable issues of fact on defect, hazard, or Lee’s responsibility; summary judgment was improper.
- The matter was remanded for further proceedings on Shepard’s cross-complaint.

## Legal Principles

- Requests for admissions under Cal. Code Civ. Proc. § 2033 are procedural devices intended to narrow issues for trial by removing the need to prove undisputed matters.
- Admissions under § 2033 are generally binding only within the action and between the requesting party and the responding party, and are not automatically conclusive in related claims involving different parties.
- A party may assert alternative and even inconsistent theories when litigating responsibility among multiple actors, including simultaneously defending against a plaintiff while pursuing indemnity against another party.
- Admissions may have evidentiary significance (e.g., for impeachment), but do not necessarily operate as a complete bar to an indemnity claim in a separate adversarial posture.

## Conclusion

The court held that a general contractor’s § 2033 admission made to an injured worker did not conclusively bind the contractor in its indemnity cross-action against a subcontractor, and that the contractor could assert inconsistent theories across the two contexts; therefore, summary judgment for the subcontractor was reversed.


Shepard & Morgan v. Lee & Daniel, Inc., 31 Cal. 3d 256 (Cal. 1982)