More on preparing declarations for motions for summary judgment

In preparing declarations, think about what your declarant is saying.  Sometimes attorneys will take the easy way out, and rather than getting several declarations to cover the facts, they will seek to have as few declarations as possible.  For instance, if someone is testifying to a situation that occurred at the workplace, but then states he or she has worked at the company for a certain number of years (after the occurrence), then it would appear that based on the statements made in the declaration, the declarant can’t possibly possess personal knowledge of the facts stated in the declaration.  A similar situation might arise where the declarant works out of the main out-of-state office of a company and yet purports to describe a situation occurring at a local branch office.

Be careful of the language used.  For instance, using the term “I learned,” “I discovered,” “I believe,” or “I am informed,” all may indicate a lack of personal knowledge and should be objected to.  “The phrase ‘To the best of my knowledge’ indicates something less than the ‘personal knowledge’ required under Code of Civil Procedure section 437c, and implies that the declarant’s statement is based on something similar to information and belief." (Bowden v. Robinson (1977) 67 Cal. App.3d 705, 719-720.)  “Declarations based on information and belief are insufficient to satisfy the burden of either the moving or opposing party on a motion for summary judgment or adjudication.”  (Lopez v. University Partners (1997) 54 Cal.App.4th 1117, 1124.)

Keep in mind that declarations that are not controverted must be accepted as true for purposes of the motion.  (Code of Civil Procedure section 437c(e).) The judge cannot deny the motion because he or she suspects the statements lack credibility.

The court may deny the motion for summary judgment if the opposing party is unable to controvert the declarations; however, this is a discretionary call on the judge’s part.  Subsection 437c(e) provides, “If a party is otherwise entitled to a summary judgment pursuant to this section, summary judgment may not be denied on grounds of credibility or for want of cross-examination of witnesses furnishing affidavits or declarations in support of the summary judgment, except that summary judgment may be denied in the discretion of the court, where the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness to the fact; or where a material fact is an individual’s state of mind, or lack thereof, and that fact is sought to be established solely by the individual’s affirmation thereof.”  These circumstances may arise where the declarant is the sole witness to a fact or the declaration is addressing the declarant’s statement of mind, particularly as to intent.  (Meighan v. Shore (1995) 34 Cal.App.4th 1025, 1046; KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1031.)