Motions for Summary Judgments: Prepare your declarations according to C.C.P. section 2015.5

A motion for summary judgment or opposition thereto may be supported by “affidavits, declarations admissions, answers to interrogatories, depositions, and matter of which judicial notice shall or may be taken.”  (Code of Civil Procedure section 437c(b)(1).)  Subsection 437c(d) also requires that “[s]upporting and opposing affidavits or declarations shall be made by any person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations.  Any objections based on the failure to comply with the requirements of this subdivision shall be made at the hearing or shall be deemed waived.”

The form of declarations is governed by Code of Civil Procedure section 2015.5, which requires that the declaration “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)

If the declaration is executed outside of California but fails to include the language “under the laws of the State of California” as indicated in option (2) above, then the declaration will be considered to be inadmissible hearsay.  “[C]ourts do not find compliance with section 2015.5 to be both substantial and sufficient unless all statutory conditions appear on the face of the declaration in some form.” (Kulshrestha v. First Union Comm’l Corp. (2004) 33 Cal.4th 601, 612.)    Add these certifications to every declaration you prepare, and if it doesn't exist in your opponent's declarations, be sure to object.