The subject of this write-up is a short discussion of the needs for an affidavit or declaration in the State of California. Any celebration who has been served with a motion, opposition, or other pleading that consists of an affidavit or declaration ought to very carefully assessment it to ascertain if it does in truth meet California needs for a declaration.
California permits the use of a declaration rather of, or in lieu of, an affidavit. The relevant code section is Code of Civil Process Section 2015.five.
The important point to keep in mind is the truth that a declaration signed outdoors of California that does not state that, “I certify (or declare) beneath penalty of perjury beneath the laws of the State of California that the foregoing is correct and appropriate.” does not conform with California law, namely Section 2015.five, and ought to be objected to on that basis.
The California Supreme Court has also ruled in a 2004 case that a declaration that does not comply with the provisions of Section 2015.five is not admissible if correctly objected to.
The typical particular person would be astounded at what defects the author sees on a frequent basis with declarations. In truth the author just completed preparing an evidentiary objection to the declarations of two defendants in help of a motion to dismiss since the declarations had been signed in the State of Illinois and did not include things like the essential language.
And readers ought to note that Section 2015.five also applies to verifications as properly. The author also just completed drafting a meet and confer letter to opposing counsel since the verification attached to quite a few discovery responses did not include the essential statement, and was vague as to exactly where it was signed, stating only that it was “Executed inside the United States… ”
And the details stated in any affidavit or declaration will have to be positively set forth, if only conclusions or opinions are stated that will not be enough.
Unless a statement is particularly created on facts and belief it will be essential that details be shown as to how the particular person producing the statement has individual know-how of the details. Otherwise the opposing celebration could object to the affidavit or declaration on the grounds of a lack of individual know-how.
In certain, an affidavit or declaration that consists of mainly conclusions and hearsay is specifically objectionable as in a single case, a California Court of Appeal stated that an affidavit consisting of mere conclusions and hearsay was “a nullity and of no evidentiary worth.