Declarations and Exclusions

For Want of a Phrase, The Case is Lost . . .

In Herman Melville's immortal Billy Budd [take that as your literary recommendation for the day], the conflicted Captain Vere avers that "Form is everything." The California Supreme Court provides a case in point:

California Code of Civil Procedure §2015.5 permits declarations -- unsworn statements executed under penalty of perjury -- to be used as the evidentiary equivalent of a sworn/notarized affidavit. However, the statute incorporates certain explicit formal requirements: It "defines a 'declaration' as a writing that is signed, dated, and certified as true under penalty of perjury. In addition, [the statute] specifies 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.'"

Dheeraj Kulshrestha sued his former employer, claiming that he had been induced to move from Ohio to California by promises of a management position, and that he was subsequently terminated for unlawful and discriminatory reasons. The employer filed a motion for summary judgment. Kulshrestha's opposition papers included his own declaration, which stated that it had been signed by him in Ohio "under penalty of perjury." The declaration did not state that the penalties of perjury were those "under the laws of the State of California." The trial court concluded that the declaration was inadmissible; in a 22-page unanimous opinion, the California Supreme Court agrees:

In this suit against a firm for which he briefly worked, the plaintiff sought to prevent summary judgment by filing a declaration under penalty of perjury that showed a 'place of execution' in another state. Moreover, the document did not reference California’s “laws.” The evidence was excluded, summary judgment was granted, and dismissal was affirmed on appeal.

We now decide if declarations signed under penalty of perjury outside this state satisfy section 2015.5, and are admissible in summary judgment and other authorized proceedings, even though the contents are not certified as true “under the laws of the State of California.” The answer to this narrow question is no.

Section 2015.5 seeks to enhance the reliability of all declarations used as hearsay evidence by disclosing the sanction for dishonesty. Thus, the statute requires some acknowledgement on the face of the declaration that perjured statements might trigger prosecution under California law. The Legislature has determined that such knowledge can be inferred from the 'place of execution' where the document shows it was signed here. All other declarations, including those signed in other states, must invoke 'the laws of the State of California.' Indeed, when lawmakers added this phrase to section 2015.5 in 1980, it was deemed necessary to alert out-of-state declarants that California’s perjury laws — which were made extraterritorial at the same time — might apply. The lower courts correctly found the present declaration flawed in this regard. We will affirm the judgment.

(Italics in original; citations omitted.)

The decision in Kulshrestha v. First Commercial (July 19, 2004), Case No. S11564, is available at these links in PDF and Word formats.

The UCL Practitioner

Although it has been running since last October, I have only today discovered The UCL Practitioner weblog, which is devoted to issues surrounding California's "Unfair Competition Law," Business and Professions Code §17200. If you are a Californian and are not familiar with that statute, you should be, especially given that Proposition 64 on the November ballot proposes significant changes to the statute to respond to perceived (and actual) abuses.

Today's post provides a useful introduction to section 17200 and its proper uses.

Recommended, and now added to the Decs&Excs links list to the right. The site was brought to my attention via a link from The Southern California Law Blog.

The Ills the Flesh is Heir To: Continuance is Mandated by Attorney's Emergency Hospitalization

Whatever else they say about us, most attorneys are only human, and the forces of mortality occasionally interfere with our ability to serve our clients as vigorously or punctually as we might wish. A case in point:

There are times when respect for the human condition dictates a compassionate response to a request for a continuance. This is one of those times.

I reported this past February on a decision finding that the sudden death of a plaintiff's attorney provided good cause to continue a trial date. Now, the 4th District Court of Appeal provides another, non-fatal, example of circumstances in which granting a continuance is just the Right Thing To Do. As before, the defendant's attorneys (and the trial court judge) come off as cold fish indeed, in the face of a fellow advocate's frailty.

The appellate Court's introductory summary, quoted above, states the case plainly (all emphasis is added). The grisly details follow:

In the case before us, plaintiffs’ counsel was served with a motion for summary judgment on the day he was admitted to the hospital to have his cancerous bladder removed. The attorney was unaware that he had been served with the motion until the day after he was released from the hospital. He then had two business days in which to obtain affidavits, and prepare and file an opposition to the motion, or lose his clients’ case. Even though the attorney was in no condition to work, he managed to timely file a perfunctory opposition, together with a gut-wrenching request for a continuance. He was largely nonspecific as to the particular affidavits he might file, and the explicit facts he might adduce in opposition to the motion, if only he had the time to do so. He was, however, painfully specific about the reasons why he was in a position to be no more complete at that moment in time.

The trial court [denied] the continuance request, and thereafter put an end to the plaintiffs’ case, by granting summary judgment in the defendants’ favor. . . .

The defendants argue that the attorney should have already had on hand all evidence necessary to oppose the motion, and that, therefore, a continuance should have been unnecessary. The defendants seem to overlook the fact that, even if all the necessary evidence was contained in files located only 10 feet away from the attorney’s desk, there are times when walking those 10 feet, lifting each individual file, and searching through documentation to find each specific item of evidence, is simply beyond human ability. The fact that the incapacitated attorney filed anything at all was nothing short of heroic. The request he filed unquestionably showed good cause for a continuance and the court abused its discretion in denying the request. We reverse and remand.

The decision in Lerma v. County of Orange (July 13, 2004), Case No. G032120, is available at these links in PDF and Word formats.

Giving Insurers the Willies? Former Assembly Speaker Brown Considers Run for Insurance Commissioner

The San Francisco Chronicle and others report the surprising announcement that Willie Brown has filed to run for California Insurance Commissioner in 2006.

Even more surprised was [fellow Democrat] John Garamendi, the Walnut Grove Democrat now serving as insurance commissioner. Term limits won't force the veteran politician out of office until 2010, and he already has begun raising money for either a re-election campaign or a run for another statewide office.

Brown's low-key announcement came as a surprise to Garamendi and his aides. The commissioner released a brief statement and declined further comment.

"Willie Brown is always full of surprises, and he's a great friend,'' Garamendi said.

Brown is a well-known figure in California politics, having served in the Legislature for some 30 years, 14 of them as Speaker of the Assembly. Forced out by term limits, Brown was twice elected Mayor of San Francisco; again term limits precented his running for reelection. A none too flattering profile of Brown's terms as Mayor can be found here.

How would Brown deal with insurers and insurance consumers if he follows through, runs, and is elected Commissioner? His political reputation has always been that of a deal maker, as the Contra Costa Times noted as Brown prepared to leave the Mayor's office last December:

Critics say Brown's greatest achievement was cultivating his own image, and gaining a grip on power fed by insider alliances and special interests: Republicans got their dearest wants, Democrats got theirs. Brown got power and longevity.

He was the top recipient of tobacco company donations of any public official in the country, and critics often point to a now-legendary deal Brown swung on tort reform. Known as the "Napkin Deal," it was a peace pact forged on a restaurant napkin with lobbyists for doctors, trial attorneys, insurance interests and manufacturers. The deal, a point of pride for Brown, included tobacco company immunity from liability lawsuits.

Brown's defenders say the criticism overlooks his commitment to justice and liberal ideals.

Lord of Lloyd's Loathes Enlarged Litigiousness

In an interesting piece from December, 2003, Lord Levene of Portsoken, chair of Lloyd's of London -- aka The Little Coffee House That Could (read the article, if that description baffles you) -- bemoans the increasing Americanization of the philosophy of British civil justice, in the form of a rising "compensation culture." His complaints will have a familiar ring to those who have followed the Business vs. Trial Lawyers battles of recent years in this country:

The real winners are the ambulance chasers, so-called “lawyers” — for many are not qualified, but are really just advisers. “No win, no fee”, they hiss, luring anyone with a possible claim into court. After the “have-a-go hero”, we now have the “have-a-go victim” — go to court and try your luck.

Some things have changed. There is more mediation of cases, which has speeded up the process and reduced costs. There is greater clarity in the claims process.

But as claims across society increase, insurers, sadly, will have no choice but to increase premiums. We don’t want those rises any more than consumers. But if we do not have enough capital to cover policies, we risk not being able to meet claims, and our reputation begins to unravel.

The system we have at the moment is worse than a mess — it’s a blight on our lives and our economy. Politicians and regulators in Whitehall and Westminster need to wake up and, as Edward Lloyd might have said, smell the coffee.

[Link via All American tort reform advocate Walter Olson at PointofLaw.com.]