1Dear [FIRSTNAME], I hope you had a great Thanksgiving weekend.

The topic of the newsletter this week is a brief discussion of the requirements for an affidavit or declaration in the State of California. Any party who has been served with a motion, opposition, or other pleading that contains an affidavit or declaration should carefully review it to determine if it does in fact meet California requirements for a declaration. California allows the use of a declaration instead of, or in lieu of, an affidavit. The relevant code section is Code of Civil Procedure § 2015.5 which states that, “Whenever, under any law of this state or under any rule, regulation, order or requirement made pursuant to the law of this state, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn statement, declaration, verification, certificate, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may with like force and effect be supported, evidenced, established or proved by the unsworn statement, declaration, verification, or certificate, in writing of such person which recites that it is certified or declared by him or her to be true under penalty of perjury, is subscribed by him or her, and (1), if executed within this state, states the date and place of execution, or (2), if executed at any place, within or without this state, states the date of execution and that it is so certified or declared under the laws of the State of California. The certification or declaration may be in substantially the following form: (a) If executed within this state: "I certify (or declare) under penalty of perjury that the foregoing is true and correct": _____________ _________ (Date and Place) (Signature) (b) If executed at any place, within or without this state: "I certify (or declare) under penalty of perjury under the laws of the State of California that the foregoing is true and correct": _____________ _________ (Date) (Signature)” The key thing to remember is the fact that a declaration signed outside of California that does not state that, “I certify (or declare) under penalty of perjury under the laws of the State of California that the foregoing is true and correct.” does not conform with California law, namely Section 2015.5 of the Code of Civil Procedure , and should be objected to on that basis. The California Supreme Court has also ruled that a declaration that does not comply with the provisions of Section 2015.5 is not admissible, see Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 606. (Internal citations omitted.) The average person would be astounded at what defects the author sees on a regular basis with declarations. In fact the author just finished preparing an evidentiary objection to the declarations of two defendants in support of a motion to dismiss because the declarations were signed in the State of Illinois and did not include the required language. And readers should note that Section 2015.5 also applies to verifications as well. The author also

just finished drafting a meet and confer letter to opposing counsel because the verification attached to several discovery responses did not contain the required statement, and was vague as to where it was signed, stating only that it was “Executed inside the United States...” And the facts stated in any affidavit or declaration must be positively set forth, if only conclusions or opinions are stated that is not sufficient. Unless a statement is made on information and belief it will be required that facts be shown as to how the person making the statement has personal knowledge. “In an affidavit facts must be positively set forth, and an affidavit which merely states conclusions or opinions of the affiant is insufficient. The true test of the sufficiency of an affidavit is whether it has been drawn in such a manner that perjury could be charged thereon if any material allegation contained therein is false. It is evident that an affidavit which simply states opinions and conclusions does not come within this rule.” Tri-State Mfg. Co. v. Superior Court (1964) 224 Cal. App. 2d 442, 445. (Internal citations and quotations omitted.) The Court in Tri-State Mfg. Co. v. Superior Court , supra 224 Cal. App. 2d at 445 also stated that an affidavit consisting of mere conclusions and hearsay was “a nullity and of no evidentiary value.” If you enjoy this newsletter, tell others about it. They can subscribe by visiting the following link: http://www.legaldocspro.net/newsletter.htm Have a great week and thanks for being a subscriber. Yours Truly, Stan Burman The author of this newsletter, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995. The author's website: http://www.legaldocspro.net View numerous sample document sold by the author: http://www.scribd.com/legaldocspro Copyright 2012 Stan Burman. All rights reserved. DISCLAIMER: Please note that the author of this newsletter, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this newsletter is NOT intended to constitute legal advice.

These materials and information contained in this newsletter have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this newsletter is not intended to create, and receipt does not constitute, any business relationship between the sender and receiver. Subscribers and any other readers should not act upon this information without seeking professional counsel.