Decisional Notes on Affidavits, Declarations and Certifications

Where declaration, in support of summary judgment motion, was undated and did notindicate where it was executed and affiant declared only that all of facts stated werewithin his personal knowledge without declaring that facts set forth were true,declaration was defective in form and was improperly considered by trial court. Baron v.Sarlot (App. 2 Dist. 1975) 120 Cal.Rptr. 675, 47 Cal.App.3d 304. Judgment 185.1(1);Judgment 185.1(3)

Failure of declaration to state that it was executed within state and was based onpersonal knowledge of declarant who was competent to testify thereto at trial could notbe raised for first time on appeal. Rader v. Thrasher (App. 1 Dist. 1972) 99 Cal.Rptr.670, 22 Cal.App.3d 883. Appeal And Error 223

1. In general

Where insurer, notwithstanding that he had filed in a separate action in violation of §1292.6 a petition to vacate arbitration award, participated without objection in hearing oninsured's petition to confirm arbitration award with respect to claim under fire policy andmotions by insurer, filed before hearing, to consolidate the two actions were nevercalendared or heard until after hearing at which insurer offered no evidence, court didnot err in proceeding with hearing and confirming award. Precision Automotive v.Northern Ins. Co. of New York (App. 1 Dist. 1967) 61 Cal.Rptr. 200, 252 Cal.App.2d1036. Insurance 3323

Statement with regard thereto, contained in declaration supporting motion fordisqualification of magistrate, was prima facie evidence of place where declaration wasmade. McCauley v. Superior Court of California In and For San Bernardino County(App. 4 Dist. 1961) 12 Cal.Rptr. 119, 190 Cal.App.2d 562. Criminal Law 90(1)

2. Construction and application

A declaration is defective under governing statute absent an express facial link toCalifornia or its perjury laws. Kulshrestha v. First Union Commercial Corp. (2004) 15Cal.Rptr.3d 793, 33 Cal.4th 601, 93 P.3d 386. Affidavits 9

For purposes of statute permitting submission of unsworn declarations provided theyare certified by the declarant to be true under penalty of perjury and subscribed by himor her, "subscribe" means to sign with one's own hand. Stockinger v. Feather RiverCommunity College (App. 3 Dist. 2003) 4 Cal.Rptr.3d 385, 111 Cal.App.4th 1014.Affidavits 11

For purposes of statute permitting submission of unsworn declarations provided theyare certified by the declarant to be true under penalty of perjury and subscribed by him

or her, "subscribe" means to sign with one's own hand. In re Marriage of Reese & Guy(App. 4 Dist. 1999) 87 Cal.Rptr.2d 339, 73 Cal.App.4th 1214. Affidavits 11

Unsworn statement under penalty of perjury executed under this section may be used inCalifornia courts with the same force and effect as the affidavit of non-military servicerequired by the Soldiers' and Sailors' Civil Relief Act (Mil. & V.C. § 395.1). 34Op.Atty.Gen. 60.

This section providing that written certificates or declarations may be made "underpenalty of perjury" in situations where the law permits or requires written statementsunder oath is applicable to corporation documents required to be filed by the secretaryof state and is also applicable to declarations, verifications, certificates, oaths oraffidavits, which by law, rule or regulation are required or permitted to be filed with, orpresented to, any state agency or officer. 30 Op.Atty.Gen. 294.

Unsworn statement executed "under penalty of perjury" pursuant to this section isapplicable to the issuance of criminal complaints, except in extradition proceedings. 34Op.Atty.Gen. 234.

Unsworn statement under penalty of perjury executed under this section, permitting useof such statement whenever affidavits are required "under any law of this State or underany rule, regulation, order or requirement made pursuant to law" may be used with thesame force and effect as affidavit required for commencing action in small claims court.34 Op.Atty.Gen. 60.

3. Construction with federal laws

There are no provisions in the Federal Rules of Civil Procedure for the state practice offiling "declarations under penalty of perjury" in lieu of affidavits. Arney v. U. S., C.A.9(Cal.)1973, 479 F.2d 653.

4. Discretion of court

On defendants' motion to dismiss libel action for want of prosecution, trial judge wouldhave been justified in ignoring "affidavit" which had not been notarized as an unswornstatement not made under penalty of perjury; and if he considered such "affidavit" indetermining any factual conflict, he had not only right but duty to pass upon credibility ofthose executing same and to weigh evidence therein. Bonelli v. Chandler (App. 1958)165 Cal.App.2d 267, 331 P.2d 705. Pretrial Procedure 682.1

5. Purpose of declaration

Purpose of permitting a declaration under penalty of perjury, in lieu of a swornstatement, is to help insure that declarations contain a truthful factual representationand are made in good faith. In re Marriage of Reese & Guy (App. 4 Dist. 1999) 87Cal.Rptr.2d 339, 73 Cal.App.4th 1214. Affidavits 1

A declaration under penalty of perjury that unsworn statement is true and correct servessame function as a sworn statement in that each acts as a vehicle to convey to themagistrate facts on which reliance is placed as constituting a showing of probable causefor issuance of a complaint. People v. Salazar (App. 2 Dist. 1968) 71 Cal.Rptr. 894, 266Cal.App.2d 113. Criminal Law 211(2)

6. Definitions

Legislature, in using word "subscribe" in this section, such matter may be established byan unsworn statement in writing subscribed to by maker, gave word the primarymeaning "to write underneath." Dodge v. Free (App. 4 Dist. 1973) 108 Cal.Rptr. 311, 32Cal.App.3d 436. Affidavits 11

7. Requisites of certification or declaration

Declaration which was attached to recall petition but which did not state date ofexecution and was not subscribed was not a declaration under penalty of perjury withinmeaning of this section providing that whenever any matter is required to be supportedby a sworn statement in writing such matter may be established by an unsworndeclaration in writing subscribed by maker and certified to be true under penalty ofperjury. Dodge v. Free (App. 4 Dist. 1973) 108 Cal.Rptr. 311, 32 Cal.App.3d 436.Officers And Public Employees 70.7

This section providing that whenever any matter is required to be supported by swornstatement in writing, such matter may with like force and effect be established byunsworn statement in writing subscribed to by the maker requires that the documentmust be subscribed by the declarant. People v. Pierce (1967) 56 Cal.Rptr. 817, 66Cal.2d 53, 423 P.2d 969. Affidavits 11

This section providing that whenever any matter is regarded to be supported by swornstatement in writing, it may with like force and effect be established by unswornstatement in writing subscribed to by the maker and certified by him to be true underpenalty of perjury does not require declaration under penalty of perjury to appear at endof document. People v. Pierce (1967) 56 Cal.Rptr. 817, 66 Cal.2d 53, 423 P.2d 969.Affidavits 11

8. Place of execution

Defendant's failure to indicate place of execution when he completed driver's licenseapplication form did not preclude application from qualifying as sworn document, sodefendant could be convicted of perjury for false statement in application, whereapplication expressly stated that it was certified under penalty of perjury "under the lawsof the state of California." People v. Flores (App. 2 Dist. 1995) 44 Cal.Rptr.2d 585, 37Cal.App.4th 1566, rehearing denied, review denied. Perjury 5

9. Date of execution

Defendant's failure to indicate date of execution when he completed driver's licenseapplication form was not fatal defect that would preclude defendant's perjury convictionfor making false statement on form, in light of evidence regarding date application wasexecuted, including defendant's testimony that he signed application on same day hecompleted it and turned it over to Department of Motor Vehicles (DMV) employee,evidence regarding when defendant received license, and testimony of DMV employeethat according to DMV procedure, license would be issued within a few weeks ofsubmission of application. People v. Flores (App. 2 Dist. 1995) 44 Cal.Rptr.2d 585, 37Cal.App.4th 1566, rehearing denied, review denied. Perjury 5

10. Arrest warrants

A penalty of perjury declaration may be used to support issuance of an arrest warrant.People v. Nagel (App. 4 Dist. 1970) 84 Cal.Rptr. 353, 4 Cal.App.3d 458. Criminal Law211(1)

11. Injunctions

Pleadings in action seeking to enjoin municipal employees of City of San Francisco fromengaging in illegal strikes and picketing were properly verified where complaint wasaccompanied by a declaration of the city attorney, under penalty of perjury; declarationwas the equivalent of an affidavit and, furthermore, a pleading of the city attorney,acting in his official capacity, need not be verified. City and County of San Francisco v.Evankovich (App. 1 Dist. 1977) 137 Cal.Rptr. 883, 69 Cal.App.3d 41. Labor AndEmployment 2102; Labor And Employment 2095

Oath or declaration of affidavit made in support of injunction pendente lite must be insuch form that criminal sanctions of perjury might apply where material facts sodeclared to be true, are in fact not true or are not known to be true. Ancora-CitronelleCorp. v. Green (App. 1 Dist. 1974) 115 Cal.Rptr. 879, 41 Cal.App.3d 146. Injunction 145

A certification by a supervising deputy in office of commissioner of corporations and adeclaration by a deputy attorney general both under penalty of perjury, were properlyfiled in support of a complaint praying for issuance of a preliminary injunction. People exrel. Savage v. Los Angeles Trust Deed and Mortg. Exchange (App. 2 Dist. 1961) 12Cal.Rptr. 144, 190 Cal.App.2d 66. Injunction 144

12. Contempt

Any elements of contempt of court by nonappearance of subpoenaed witness fordeposition which were derived from declaration of plaintiff's attorney given under penaltyof perjury which is a satisfactory substitute for an affidavit under this section metrequirements of § 1211 directing judicial officer to prepare statement of factsconstituting the contempt committed not in the presence of the court. Application of Jess(App. 2 Dist. 1970) 91 Cal.Rptr. 72, 11 Cal.App.3d 819. Pretrial Procedure 73

In the absence of a sufficient affidavit, a contempt proceeding is void ab initio in itsentirety. Palm Springs Alpine Estates, Inc. v. Superior Court for Los Angeles County(App. 2 Dist. 1967) 63 Cal.Rptr. 618, 255 Cal.App.2d 883. Contempt 54(1)

12.5. Amendment of petition

Successor trustee was entitled to amend supplemental petition to modify and terminatetrust to attest that verification of petition was made "under penalty of perjury," whereomission appeared to be a clerical error. Finkbeiner v. Gavid (App. 2 Dist. 2006) 39Cal.Rptr.3d 871, 136 Cal.App.4th 1417. Trusts 61(1)

13. Admissibility of evidence--In general

Testamentary trustee's petition for instructions and beneficiary's written objections, bothverified in form of declarations under penalty of perjury, were properly considered asevidence in hearing on the petition, absent objection. In re Estate of Nicholas (App. 3Dist. 1986) 223 Cal.Rptr. 410, 177 Cal.App.3d 1071. Evidence 208(1)

Rule that relevant and material but incompetent and thus inadmissible evidencereceived without proper objection or motion to strike suffices to establish a fact insupport of order or judgment applies to incompetent statements in affidavits as well asstatements made under penalty of perjury. Nalley's Inc. v. Corona Processed Foods,Inc. (App. 2 Dist. 1966) 50 Cal.Rptr. 173, 240 Cal.App.2d 948. Trial 105(4)

14. ---- Hearsay, admissibility of evidence

General rule in civil actions is that, absent statutory authorization, stipulation of theparties, or a waiver by failure to object, an affidavit or a declaration under penalty ofperjury is not competent evidence; it is hearsay because it is prepared without theopportunity to cross-examine the affiant. Windigo Mills v. California Unemployment Ins.Appeals Bd. (App. 5 Dist. 1979) 155 Cal.Rptr. 63, 92 Cal.App.3d 586. Evidence 266

Permittee's secretary's declaration as to effect that suspension of pharmacy permitswould have on permittee's customers and that never before had board imposedsuspension for like violations constituted inadmissible hearsay. West Romaine Corp. v.California State Bd. of Pharmacy (App. 2 Dist. 1968) 72 Cal.Rptr. 569, 266 Cal.App.2d901. Evidence 317(2)

15. Sufficiency of certification or declaration

Family law attorney's custom of signing declarations under penalty of perjury on behalfof her clients and witnesses was improper, even if attorney was not intending to deceivethe court by so doing. In re Marriage of Reese & Guy (App. 4 Dist. 1999) 87 Cal.Rptr.2d339, 73 Cal.App.4th 1214. Attorney And Client 42

Defective verification of property tax refund claims, signed by taxpayers' attorney, wasnot fatal to claims, despite attorney's failure to state explicitly that he had read therefund claim, and that he was informed and believed the matters therein to be true andon that ground alleged that the matters stated therein were true, where there was noallegation of counsel's bad faith. Mission Housing Development Co. v. City and Countyof San Francisco (App. 1 Dist. 1997) 69 Cal.Rptr.2d 185, 59 Cal.App.4th 55, modifiedon denial of rehearing, review denied. Taxation 2789

Cross-complaint was not verified, where purported verification was made "under penaltyof perjury under the laws of the State of Illinois," not under California law. Myzer v.Emark Corp. (App. 4 Dist. 1996) 53 Cal.Rptr.2d 60, 45 Cal.App.4th 884, modified ondenial of rehearing, review denied. Pleading 301(1)

In action brought by foreign government against member of former royal family, trialcourt did not err in setting aside order for service of summons by publication where, as itbecame clearer subsequent to the publication order, jurisdictional facts were missing,since affidavit presented with motion for service of publication was not sufficientlyverified for purpose of showing that cause of action existed against defendant, eventhough it probably qualified as a declaration under this code, and where its contentswere a medley of conclusions and political declamation failing to formulate acomprehensible cause of action. Islamic Republic of Iran v. Pahlavi (App. 2 Dist. 1984)206 Cal.Rptr. 752, 160 Cal.App.3d 620. Process 96(2)

Where declarant's address was immediately below her signature and she madedeclaration under penalty of perjury, declaration substantially complied with provision ofthis section requiring that declaration state place of execution and is true under penaltyof perjury. People v. Pacific Land Research Co. (1977) 141 Cal.Rptr. 20, 20 Cal.3d 10,569 P.2d 125. Affidavits 8; Affidavits 11

Verified petition constitutes evidence which is sufficient to support a judgment in aproceeding on a petition for writ of mandate. Hand v. Board of Examiners in VeterinaryMedicine (App. 1 Dist. 1977) 136 Cal.Rptr. 187, 66 Cal.App.3d 605. Mandamus 168(4)

Even if "Non-Collusion Declaration" filed in support of surety's motion to vacate bailforfeiture and to exonerate bail bond was invalid on ground that it failed to state dateand place that it was executed, such did not preclude granting of motion, in thatdeclaration was merely repetitive of sworn statements in "surety's declaration" thatsurety did not willfully disobey orders of court and that defendant's failure to appear waswithout knowledge and consent of surety. People v. Resolute Ins. Co. (App. 2 Dist.1975) 120 Cal.Rptr. 17, 46 Cal.App.3d 249. Bail 79(2)

Purported affidavits or declarations attached to notice of motion to vacate forfeiture andto exonerate bond which lacked jurat or place or date of execution did not constitutecompetent evidence on motion. People v. United Bonding Ins. Co. (App. 2 Dist. 1969)77 Cal.Rptr. 310, 272 Cal.App.2d 441. Bail 79(2)

Purported affidavit which contained acknowledgment reciting only that alleged affianthad appeared before a notary public and acknowledged that she had executed thedocument was not a sufficient affidavit to form basis for contempt proceeding in that itwas not a written declaration under oath or an unsworn statement of alleged factscertified or declared to be true under penalty of perjury so that contempt proceedingwas void ab initio. Palm Springs Alpine Estates, Inc. v. Superior Court for Los AngelesCounty (App. 2 Dist. 1967) 63 Cal.Rptr. 618, 255 Cal.App.2d 883. Contempt 54(2)

Undenied declaration of property owner that she did not have her glasses andunknowingly signed grant deed attached to escrow instructions for sale of her propertyand that in signing escrow instructions she relied on assurance by prospectivepurchaser that they contained his agreement to lease back the property to her for twoyears established a complete defense to his actions for declaratory relief andreformation of contract. Truslow v. Woodruff (App. 2 Dist. 1967) 60 Cal.Rptr. 304, 252Cal.App.2d 158. Judgment 185.3(18)

Declarations in support of vacation of forfeiture of bail bond that did not show either dateor place of execution were insufficient to meet requirements of this section thatdeclaration show date and place of execution; however, where no objection was madeto trial court and defect could easily have been cured, the defect was waived. People v.United Bonding Ins. Co. (App. 2 Dist. 1966) 50 Cal.Rptr. 198, 240 Cal.App.2d 895. Bail79(2)

Affidavit of corporate officer in support of motion for change of venue reciting that officerdeclared under penalty of perjury certain specific facts was sufficient, although it failedto state that facts declared were true. Pacific Air Lines, Inc. v. Superior Court In and ForCity and County of San Francisco (App. 1 Dist. 1965) 42 Cal.Rptr. 68, 231 Cal.App.2d587. Affidavits 9

Unverified statement wherein it appeared that maker of statement did not have orpretend to have personal knowledge of matters necessary to be shown to obtain orderfor substituted service on foreign corporation was insufficient to give court jurisdiction toorder substituted service. Tri-State Mfg. Co. v. Superior Court for Los Angeles County(App. 2 Dist. 1964) 36 Cal.Rptr. 750, 224 Cal.App.2d 442. Corporations 668(14)

Unless it affirmatively appears from other language in declaration supporting motion forsummary judgment that declarant can testify competently to facts alleged therein,declaration is incompetent. Johnson v. Drew (App. 2 Dist. 1963) 32 Cal.Rptr. 540, 218Cal.App.2d 614. Judgment 185.1(4)

Husband's declaration, which was purportedly, though probably not properly, executedin compliance with this section and was filed with return to alternative writ of mandatecompelling vacation and setting aside of order denying wife's motion for change ofvenue of divorce action against her could not be considered in determining sufficiencyof affidavits before superior court with relation to the motion. Pearson v. Superior Court,

City and County of San Francisco (App. 1 Dist. 1962) 18 Cal.Rptr. 578, 199 Cal.App.2d69. Mandamus 172

Declaration, reciting that it was executed in San Bernardino County, sufficientlycomplied with this section; and motion for disqualification of magistrate was improperlydenied for alleged failure of such supporting declaration to indicate place of executionthereof. McCauley v. Superior Court of California In and For San Bernardino County(App. 4 Dist. 1961) 12 Cal.Rptr. 119, 190 Cal.App.2d 562. Criminal Law 90(1)

16. Waiver of error

In challenging trial court's award of attorney fees to appellee, appellants waived theirobjections that letter from one of appellee's attorneys had not been signed underpenalty or perjury and that neither of appellee's attorneys had itemized their services,where appellants had never objected in trial court to either the letter or lack ofitemization. Robinson v. Grossman (App. 4 Dist. 1997) 67 Cal.Rptr.2d 380, 57Cal.App.4th 634. Appeal And Error 226(2)

Plaintiff waived technical defects in defendant's declarations in support of motion forsummary judgment, with respect to failure to specify where declarations were executed,by failing to object. Fuller v. Goodyear Tire & Rubber Co. (App. 4 Dist. 1970) 86Cal.Rptr. 705, 7 Cal.App.3d 690. Judgment 189

17. Summary judgment

Although a declaration which consisted of a recital of facts followed by the statementthat declarer stated under penalty of perjury that the foregoing was true and correct wasnot an affidavit in compliance with summary judgment rule, neither the trial court nor thecourt of appeals was precluded from considering the declaration in determining whethera factual issue had been raised precluding summary judgment, where no motion tostrike or other objection was made to the declaration. U. S. for Use and Benefit of Austinv. Western Elec. Co., C.A.9 (Cal.)1964, 337 F.2d 568. Federal Civil Procedure 2554;Federal Courts 752

Under statute specifying that a declaration must either reveal a "place of execution"within California, or recite that it is made "under the laws of the State of California," adeclaration executed out-of-state submitted in opposition to summary judgment motion,was invalid where it did not state it was made "under the laws of the State of California."Kulshrestha v. First Union Commercial Corp. (2004) 15 Cal.Rptr.3d 793, 33 Cal.4th 601,93 P.3d 386. Judgment 185.1(1)

Statements of witnesses declaring statements they made to plaintiff's investigator to betrue under penalty of perjury, which were reflected in transcripts of telephoneconversations between investigator and witnesses, did not convert witnesses'statements into admissible affidavits or declarations for purpose of opposingdefendants' summary judgment motion; witnesses did not subscribe any statement, and

there was no indication that investigator was authorized by law to administer oaths.Stockinger v. Feather River Community College (App. 3 Dist. 2003) 4 Cal.Rptr.3d 385,111 Cal.App.4th 1014. Judgment 185.1(6)

Where declaration, in support of summary judgment motion, was undated and did notindicate where it was executed and affiant declared only that all of facts stated werewithin his personal knowledge without declaring that facts set forth were true,declaration was defective in form and was improperly considered by trial court. Baron v.Sarlot (App. 2 Dist. 1975) 120 Cal.Rptr. 675, 47 Cal.App.3d 304. Judgment 185.1(1);Judgment 185.1(3)

Memorandum in opposition to motion for summary judgment could not serve asdeclaration if not made under penalty of perjury. Truslow v. Woodruff (App. 2 Dist. 1967)60 Cal.Rptr. 304, 252 Cal.App.2d 158. Judgment 185.1(6)

That declarations filed by cross-defendant in support of his motion for summaryjudgment did not include customary notation of date and place of execution, wheredeclarations filed by cross-defendant personally was dated and indicated on its facecounty of execution, was not fatal defect. Hirschman v. Saxon (App. 2 Dist. 1966) 54Cal.Rptr. 767, 246 Cal.App.2d 589. Judgment 185.1(6)

If it appears from examination of affidavits that no triable issue of fact exists and thataffidavits in support of motion state facts which if proved would support a judgment infavor of movant, then summary judgment is proper. Weir v. Snow (App. 2 Dist. 1962) 26Cal.Rptr. 868, 210 Cal.App.2d 283. Judgment 185.2(8)

18. Review

Failure of declaration to state that it was executed within state and was based onpersonal knowledge of declarant who was competent to testify thereto at trial could notbe raised for first time on appeal. Rader v. Thrasher (App. 1 Dist. 1972) 99 Cal.Rptr.670, 22 Cal.App.3d 883. Appeal And Error 223

Where declaration under penalty of perjury was executed in foreign jurisdiction, andadded nothing of substance to what was shown by both respondents' declaration and bysettled statement of plaintiffs' testimony, it was unnecessary to determine whether itsunsworn recital since unobjected to, could be accorded evidentiary status. Waller v.Waller (App. 3 Dist. 1970) 83 Cal.Rptr. 533, 3 Cal.App.3d 456. Appeal And Error 843(3)

Declaration attached to motion to stay execution of judgment, which declaration wasneither subscribed nor dated by declarant, was considered by reviewing court, where itwas attached to motion that was subscribed and dated. Hicks v. Hicks (App. 2 Dist.1968) 70 Cal.Rptr. 878, 264 Cal.App.2d 890. Appeal And Error 837(9)

In reviewing summary judgment, testimony which declarant stated would be testified toby specified witness was not considered. Hayward Union High School Dist. of Alameda

County v. Madrid (App. 1 Dist. 1965) 44 Cal.Rptr. 268, 234 Cal.App.2d 100. Appeal AndError 837(1)

West's Ann. Cal. C.C.P. § 2015.5, CA CIV PRO § 2015.5

§ 11:14. Effect of failure to comply with requirements

Affidavits and declarations under penalty of perjury are live testimony in writing. [SeeLive Testimony in Writing. 7 Cal Law 22 No.4 (April 1987)] An affidavit or declaration issufficient if drawn in such a manner that a perjury charge would lie if any materialallegation contained within was found to be false. [Mack v. Superior Court In and ForSacramento County (1968) 259 Cal.App.2d 7, 66 Cal.Rptr. 280]

Technical defects in an affidavit or declaration often prevent their consideration by thetrial court. A declaration filed in support of a summary judgment motion was ruledtechnically defective where it was not signed, did not state that the matters were trueand correct, did not state the place of execution, did not state that the information wasbased on personal knowledge, and did not state that it was made under penalty ofperjury. [See Witchell v. De Korne (1986) 179 Cal.App.3d 965, 225 Cal.Rptr. 176; andsee also Palm Springs Alpine Estates, Inc. v. Superior Court for Los Angeles County(1967) 255 Cal.App.2d 883, 63 Cal.Rptr 618 (holding that in the absence of atechnically sufficient affidavit an entire contempt proceeding was void ab initio)]However, technical defects do not always make a declaration insufficient. For instance,to contend that a declaration under penalty of perjury is invalid because it fails to statethe date and place of execution, is to elevate form over substance. [See People v.Resolute Ins. Co. (1975) 46 Cal.App.3d 249, 120 Cal.Rptr. 17] The practitioner shouldbe aware of the possibility of amending a declaration to make it formally sufficient. [SeeBaron v. Mare (1975) 47 Cal.App.3d 304, 120 Cal.Rptr. 675]

Declarations and affidavits may also be ruled substantively insufficient for a variety ofreasons, including lack of evidentiary facts, inadmissible evidence, and failure tocontrovert allegations. [See 6 Witkin, California Proc. (3d ed.), Proceedings WithoutTrial §§ 288–290] Declarations and affidavits that fail to state that they are based on thepersonal knowledge of the declarant or affiant, when this is a statutory requirement, areinsufficient. [See Witchell v. De Korne (1986) 179 Cal.App.3d 965, 225 Cal.Rptr 176(declaration that failed to state that the information contained within it was based onpersonal knowledge, was insufficient to support a motion for summary judgment underCode Civ. Proc. § 437c); and Bowden v. Robinson (1977) 67 Cal.App.3d 705, 136Cal.Rptr. 871. (affidavits containing statements made to the best of affiant's knowledgedid not indicate sufficient personal knowledge to support summary judgement motionunder Code Civ. Proc. § 437c] Declarations that are conclusionary rather than factualare substantively insufficient and are inadmissible as evidence. [Baron v. Mare (1975)47 Cal.App.3d 304, 120 Cal.Rptr. 675] Similarly, affidavits that recite matters which

would be excluded under the rules of evidence are defective. [Southern Pac. Co. v. Fish(1958) 166 Cal.App.2d 353, 333 P.2d 133 (excluding hearsy, conclusions, andopinions)]

Practice Note: Whenever points and authorities contain argument, that argumentmust be supported by evidence.

[FNa] This chapter was written in consultation with J. Alan Frederick, an attorney inthe law firm of Marrone, Robinson, Frederick & Foster in Burbank, California. Mr.Frederick received his J.D. degree from University of California at Los Angeles and wasadmitted to the California Bar in 1974.

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