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Waiver of Right to Appeal

False Declaration Signed Under Pressure Does Not Create a Triable Issue

Tim Kowal     October 12, 2021

It is rare that the Court of Appeal will issue a writ instructing the trial court to grant summary judgment. But that is what happened in the published opinion in Forest Lawn Memorial-Park Association v. Superior Court (D4d2 Oct. 7, 2021) ___ Cal.Rptr.3d ___ 2021 WL 4618080 (no. E076549)(https://lnkd.in/gmx5GNmi). After the defendant filed a motion for summary judgment, the plaintiff's attorney pressured a witness to sign a declaration. Based on that declaration, the court denied the motion. But a later deposition revealed nothing about the declaration was true, and that the witness signed it just to get the attorney to leave her place of employment to avoid trouble.

The Court of Appeal held it was error to consider the declaration in a vacuum. Where other evidence showed the declaration lacked foundation, the court was required to consider that evidence and sustain the foundation objections. Writ issued to grant summary judgment.

In this injury case following an auto accident, the plaintiff sued the defendant mortuary, contending the accident happened while its employee, Joshua Brown, was driving for work-related reasons. The mortuary filed a motion for summary judgment supported by Brown's statements that he never did any driving-related tasks. But the plaintiff's attorney suspected otherwise, and obtained a declaration from a woman who worked at a local store that sold flowers stating that Brown sometimes came in to pick up flowers for the defendant mortuary. Based on that declaration, the court denied summary judgment.

But shortly after the ruling, the defendant took the declarant's deposition. The declarant testified that, as the court put it, "the only thing true in her declaration was her name." Essentially, the plaintiff's attorney had called her 15 to 20 times, had showed up at her work, pressured the declarant to sign the declaration, and was, in general, a real pest. Ultimately, the declarant signed it because "I just wanted to sign and get him out of there because my bosses were really looking."

The trial court was troubled by all this, but concluded it had to look at the declaration "in and of itself," and thus denied the defendant mortuaries renewed motion for summary judgment.

Summary Judgment Must Be Based on Admissible Evidence:

The Court of Appeal did not agree with the trial court. Ultimately, the court concluded the declaration was not admissible because it lacked foundation in personal knowledge.

First, the court noted that “A party may not raise a triable issue of fact at summary judgment by relying on evidence that will not be admissible at trial.” (Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 543.) While Code of Civil Procedure section 437c(b) allows the moving party to rely on declarations, those declarations “shall be made by a 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.” (Code Civ. Proc., § 437c, subd. (d).)

Here, the false declaration lacked foundation. A statement lacks foundation “if no jury could reasonably find” that the witness has personal knowledge of the matter. (People v. Johnson (2018) 6 Cal.5th 541, 583 (quoting People v. Anderson (2001) 25 Cal.4th 543, 573.) The court concluded that "From the evidence presented for the renewed summary judgment hearing, no jury could reasonably find Scott [the declarant] had the requisite personal knowledge."

The court stressed that "the required foundation for personal knowledge is not high," and that the declaration would have been admissible if there was any independent basis for foundation. But given the declarant's deposition testimony was unequivocal, no basis was present here.

Evidentiary Rulings on Summary Judgment May Be Reviewed De Novo:

While the law is not entirely clear whether evidentiary rulings in the summary judgment context are reviewed under the traditional abuse-of-discretion standard or de novo, the court here reviewed the foundation determination de novo: "Because the trial court's approach of limiting its consideration of foundation to the declaration itself was a construction of the summary judgment statute, our review of it is de novo. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 527.)"

The False Declaration Was Not Admissible as a Prior Inconsistent Statement:

The court also rejected the plaintiff's argument that the declaration was admissible as a prior inconsistent statement under Evidence Code section 1235. Under that section, the prior inconsistent statement is admissible “not only to impeach [Scott's] credibility, but also to prove the truth of the matters asserted therein.” (People v. Williams (1976) 16 Cal.3d 663, 666.) The court rejected this for two reasons:

"First, under Evidence Code section 1235, impeachment evidence without foundation may be excluded at trial. (People v. Jones (2013) 57 Cal.4th 899, 956; People v. Cooks (1983) 141 Cal.App.3d 224, 272-273.) Second, Evidence Code section 1235 does not apply to a summary judgment determination."

Comment: I was surprised to find the court offered no admonition against the conduct of plaintiff's counsel. What counsel did here seems to me very close to suborning perjury. True, the case is not over, and the trial court will have the opportunity to make whatever admonitions are appropriate. But then again, the indulgent trial court would have credited the false declaration — even after the evidence showed it was false — had the Court of Appeal not stepped in. I think a word about ethics was called for here.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
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