Decisional Notes on Affidavits, Declarations and Certifications

Where declaration, in support of summary judgment motion, was undated and did not
indicate where it was executed and affiant declared only that all of facts stated were
within his personal knowledge without declaring that facts set forth were true,
declaration was defective in form and was improperly considered by trial court. Baron v.
Sarlot (App. 2 Dist. 1975) 120 Cal.Rptr. 675, 47 Cal.App.3d 304. Judgment 185.1(1);
Judgment 185.1(3)

Failure of declaration to state that it was executed within state and was based on
personal knowledge of declarant who was competent to testify thereto at trial could not
be raised for first time on appeal. Rader v. Thrasher (App. 1 Dist. 1972) 99 Cal.Rptr.
670, 22 Cal.App.3d 883. Appeal And Error 223

1. In general
Where insurer, notwithstanding that he had filed in a separate action in violation of
1292.6 a petition to vacate arbitration award, participated without objection in hearing on
insured's petition to confirm arbitration award with respect to claim under fire policy and
motions by insurer, filed before hearing, to consolidate the two actions were never
calendared or heard until after hearing at which insurer offered no evidence, court did
not err in proceeding with hearing and confirming award. Precision Automotive v.
Northern Ins. Co. of New York (App. 1 Dist. 1967) 61 Cal.Rptr. 200, 252 Cal.App.2d
1036. Insurance 3323
Statement with regard thereto, contained in declaration supporting motion for
disqualification of magistrate, was prima facie evidence of place where declaration was
made. McCauley v. Superior Court of California In and For San Bernardino County
(App. 4 Dist. 1961) 12 Cal.Rptr. 119, 190 Cal.App.2d 562. Criminal Law 90(1)
2. Construction and application
A declaration is defective under governing statute absent an express facial link to
California or its perjury laws. Kulshrestha v. First Union Commercial Corp. (2004) 15
Cal.Rptr.3d 793, 33 Cal.4th 601, 93 P.3d 386. Affidavits 9
For purposes of statute permitting submission of unsworn declarations provided they
are certified by the declarant to be true under penalty of perjury and subscribed by him
or her, "subscribe" means to sign with one's own hand. Stockinger v. Feather River
Community College (App. 3 Dist. 2003) 4 Cal.Rptr.3d 385, 111 Cal.App.4th 1014.
Affidavits 11
For purposes of statute permitting submission of unsworn declarations provided they
are certified by the declarant to be true under penalty of perjury and subscribed by him

or her, "subscribe" means to sign with one's own hand. In re Marriage of Reese & Guy
(App. 4 Dist. 1999) 87 Cal.Rptr.2d 339, 73 Cal.App.4th 1214. Affidavits 11
Unsworn statement under penalty of perjury executed under this section may be used in
California courts with the same force and effect as the affidavit of non-military service
required by the Soldiers' and Sailors' Civil Relief Act (Mil. & V.C. 395.1). 34
Op.Atty.Gen. 60.
This section providing that written certificates or declarations may be made "under
penalty of perjury" in situations where the law permits or requires written statements
under oath is applicable to corporation documents required to be filed by the secretary
of state and is also applicable to declarations, verifications, certificates, oaths or
affidavits, which by law, rule or regulation are required or permitted to be filed with, or
presented to, any state agency or officer. 30 Op.Atty.Gen. 294.
Unsworn statement executed "under penalty of perjury" pursuant to this section is
applicable to the issuance of criminal complaints, except in extradition proceedings. 34
Op.Atty.Gen. 234.
Unsworn statement under penalty of perjury executed under this section, permitting use
of such statement whenever affidavits are required "under any law of this State or under
any rule, regulation, order or requirement made pursuant to law" may be used with the
same force and effect as affidavit required for commencing action in small claims court.
34 Op.Atty.Gen. 60.
3. Construction with federal laws
There are no provisions in the Federal Rules of Civil Procedure for the state practice of
filing "declarations under penalty of perjury" in lieu of affidavits. Arney v. U. S., C.A.9
(Cal.)1973, 479 F.2d 653.
4. Discretion of court
On defendants' motion to dismiss libel action for want of prosecution, trial judge would
have been justified in ignoring "affidavit" which had not been notarized as an unsworn
statement not made under penalty of perjury; and if he considered such "affidavit" in
determining any factual conflict, he had not only right but duty to pass upon credibility of
those executing same and to weigh evidence therein. Bonelli v. Chandler (App. 1958)
165 Cal.App.2d 267, 331 P.2d 705. Pretrial Procedure 682.1
5. Purpose of declaration
Purpose of permitting a declaration under penalty of perjury, in lieu of a sworn
statement, is to help insure that declarations contain a truthful factual representation
and are made in good faith. In re Marriage of Reese & Guy (App. 4 Dist. 1999) 87
Cal.Rptr.2d 339, 73 Cal.App.4th 1214. Affidavits 1

A declaration under penalty of perjury that unsworn statement is true and correct serves
same function as a sworn statement in that each acts as a vehicle to convey to the
magistrate facts on which reliance is placed as constituting a showing of probable cause
for issuance of a complaint. People v. Salazar (App. 2 Dist. 1968) 71 Cal.Rptr. 894, 266
Cal.App.2d 113. Criminal Law 211(2)
6. Definitions
Legislature, in using word "subscribe" in this section, such matter may be established by
an unsworn statement in writing subscribed to by maker, gave word the primary
meaning "to write underneath." Dodge v. Free (App. 4 Dist. 1973) 108 Cal.Rptr. 311, 32
Cal.App.3d 436. Affidavits 11
7. Requisites of certification or declaration
Declaration which was attached to recall petition but which did not state date of
execution and was not subscribed was not a declaration under penalty of perjury within
meaning of this section providing that whenever any matter is required to be supported
by a sworn statement in writing such matter may be established by an unsworn
declaration in writing subscribed by maker and certified to be true under penalty of
perjury. Dodge v. Free (App. 4 Dist. 1973) 108 Cal.Rptr. 311, 32 Cal.App.3d 436.
Officers And Public Employees 70.7
This section providing that whenever any matter is required to be supported by sworn
statement in writing, such matter may with like force and effect be established by
unsworn statement in writing subscribed to by the maker requires that the document
must be subscribed by the declarant. People v. Pierce (1967) 56 Cal.Rptr. 817, 66
Cal.2d 53, 423 P.2d 969. Affidavits 11
This section providing that whenever any matter is regarded to be supported by sworn
statement in writing, it may with like force and effect be established by unsworn
statement in writing subscribed to by the maker and certified by him to be true under
penalty of perjury does not require declaration under penalty of perjury to appear at end
of document. People v. Pierce (1967) 56 Cal.Rptr. 817, 66 Cal.2d 53, 423 P.2d 969.
Affidavits 11
8. Place of execution
Defendant's failure to indicate place of execution when he completed driver's license
application form did not preclude application from qualifying as sworn document, so
defendant could be convicted of perjury for false statement in application, where
application expressly stated that it was certified under penalty of perjury "under the laws
of the state of California." People v. Flores (App. 2 Dist. 1995) 44 Cal.Rptr.2d 585, 37
Cal.App.4th 1566, rehearing denied, review denied. Perjury 5
9. Date of execution

Defendant's failure to indicate date of execution when he completed driver's license

application form was not fatal defect that would preclude defendant's perjury conviction
for making false statement on form, in light of evidence regarding date application was
executed, including defendant's testimony that he signed application on same day he
completed it and turned it over to Department of Motor Vehicles (DMV) employee,
evidence regarding when defendant received license, and testimony of DMV employee
that according to DMV procedure, license would be issued within a few weeks of
submission of application. People v. Flores (App. 2 Dist. 1995) 44 Cal.Rptr.2d 585, 37
Cal.App.4th 1566, rehearing denied, review denied. Perjury 5
10. Arrest warrants
A penalty of perjury declaration may be used to support issuance of an arrest warrant.
People v. Nagel (App. 4 Dist. 1970) 84 Cal.Rptr. 353, 4 Cal.App.3d 458. Criminal Law
211(1)
11. Injunctions
Pleadings in action seeking to enjoin municipal employees of City of San Francisco from
engaging in illegal strikes and picketing were properly verified where complaint was
accompanied by a declaration of the city attorney, under penalty of perjury; declaration
was the equivalent of an affidavit and, furthermore, a pleading of the city attorney,
acting in his official capacity, need not be verified. City and County of San Francisco v.
Evankovich (App. 1 Dist. 1977) 137 Cal.Rptr. 883, 69 Cal.App.3d 41. Labor And
Employment 2102; Labor And Employment 2095
Oath or declaration of affidavit made in support of injunction pendente lite must be in
such form that criminal sanctions of perjury might apply where material facts so
declared to be true, are in fact not true or are not known to be true. Ancora-Citronelle
Corp. v. Green (App. 1 Dist. 1974) 115 Cal.Rptr. 879, 41 Cal.App.3d 146. Injunction 145
A certification by a supervising deputy in office of commissioner of corporations and a
declaration by a deputy attorney general both under penalty of perjury, were properly
filed in support of a complaint praying for issuance of a preliminary injunction. People ex
rel. Savage v. Los Angeles Trust Deed and Mortg. Exchange (App. 2 Dist. 1961) 12
Cal.Rptr. 144, 190 Cal.App.2d 66. Injunction 144
12. Contempt
Any elements of contempt of court by nonappearance of subpoenaed witness for
deposition which were derived from declaration of plaintiff's attorney given under penalty
of perjury which is a satisfactory substitute for an affidavit under this section met
requirements of 1211 directing judicial officer to prepare statement of facts
constituting the contempt committed not in the presence of the court. Application of Jess
(App. 2 Dist. 1970) 91 Cal.Rptr. 72, 11 Cal.App.3d 819. Pretrial Procedure 73

In the absence of a sufficient affidavit, a contempt proceeding is void ab initio in its

entirety. Palm Springs Alpine Estates, Inc. v. Superior Court for Los Angeles County
(App. 2 Dist. 1967) 63 Cal.Rptr. 618, 255 Cal.App.2d 883. Contempt 54(1)
12.5. Amendment of petition
Successor trustee was entitled to amend supplemental petition to modify and terminate
trust to attest that verification of petition was made "under penalty of perjury," where
omission appeared to be a clerical error. Finkbeiner v. Gavid (App. 2 Dist. 2006) 39
Cal.Rptr.3d 871, 136 Cal.App.4th 1417. Trusts 61(1)
13. Admissibility of evidence--In general
Testamentary trustee's petition for instructions and beneficiary's written objections, both
verified in form of declarations under penalty of perjury, were properly considered as
evidence in hearing on the petition, absent objection. In re Estate of Nicholas (App. 3
Dist. 1986) 223 Cal.Rptr. 410, 177 Cal.App.3d 1071. Evidence 208(1)
Rule that relevant and material but incompetent and thus inadmissible evidence
received without proper objection or motion to strike suffices to establish a fact in
support of order or judgment applies to incompetent statements in affidavits as well as
statements made under penalty of perjury. Nalley's Inc. v. Corona Processed Foods,
Inc. (App. 2 Dist. 1966) 50 Cal.Rptr. 173, 240 Cal.App.2d 948. Trial 105(4)
14. ---- Hearsay, admissibility of evidence
General rule in civil actions is that, absent statutory authorization, stipulation of the
parties, or a waiver by failure to object, an affidavit or a declaration under penalty of
perjury is not competent evidence; it is hearsay because it is prepared without the
opportunity to cross-examine the affiant. Windigo Mills v. California Unemployment Ins.
Appeals Bd. (App. 5 Dist. 1979) 155 Cal.Rptr. 63, 92 Cal.App.3d 586. Evidence 266
Permittee's secretary's declaration as to effect that suspension of pharmacy permits
would have on permittee's customers and that never before had board imposed
suspension for like violations constituted inadmissible hearsay. West Romaine Corp. v.
California State Bd. of Pharmacy (App. 2 Dist. 1968) 72 Cal.Rptr. 569, 266 Cal.App.2d
901. Evidence 317(2)
15. Sufficiency of certification or declaration
Family law attorney's custom of signing declarations under penalty of perjury on behalf
of her clients and witnesses was improper, even if attorney was not intending to deceive
the court by so doing. In re Marriage of Reese & Guy (App. 4 Dist. 1999) 87 Cal.Rptr.2d
339, 73 Cal.App.4th 1214. Attorney And Client 42

Defective verification of property tax refund claims, signed by taxpayers' attorney, was
not fatal to claims, despite attorney's failure to state explicitly that he had read the
refund claim, and that he was informed and believed the matters therein to be true and
on that ground alleged that the matters stated therein were true, where there was no
allegation of counsel's bad faith. Mission Housing Development Co. v. City and County
of San Francisco (App. 1 Dist. 1997) 69 Cal.Rptr.2d 185, 59 Cal.App.4th 55, modified
on denial of rehearing, review denied. Taxation 2789
Cross-complaint was not verified, where purported verification was made "under penalty
of perjury under the laws of the State of Illinois," not under California law. Myzer v.
Emark Corp. (App. 4 Dist. 1996) 53 Cal.Rptr.2d 60, 45 Cal.App.4th 884, modified on
denial of rehearing, review denied. Pleading 301(1)
In action brought by foreign government against member of former royal family, trial
court did not err in setting aside order for service of summons by publication where, as it
became clearer subsequent to the publication order, jurisdictional facts were missing,
since affidavit presented with motion for service of publication was not sufficiently
verified for purpose of showing that cause of action existed against defendant, even
though it probably qualified as a declaration under this code, and where its contents
were a medley of conclusions and political declamation failing to formulate a
comprehensible cause of action. Islamic Republic of Iran v. Pahlavi (App. 2 Dist. 1984)
206 Cal.Rptr. 752, 160 Cal.App.3d 620. Process 96(2)
Where declarant's address was immediately below her signature and she made
declaration under penalty of perjury, declaration substantially complied with provision of
this section requiring that declaration state place of execution and is true under penalty
of perjury. People v. Pacific Land Research Co. (1977) 141 Cal.Rptr. 20, 20 Cal.3d 10,
569 P.2d 125. Affidavits 8; Affidavits 11
Verified petition constitutes evidence which is sufficient to support a judgment in a
proceeding on a petition for writ of mandate. Hand v. Board of Examiners in Veterinary
Medicine (App. 1 Dist. 1977) 136 Cal.Rptr. 187, 66 Cal.App.3d 605. Mandamus 168(4)
Even if "Non-Collusion Declaration" filed in support of surety's motion to vacate bail
forfeiture and to exonerate bail bond was invalid on ground that it failed to state date
and place that it was executed, such did not preclude granting of motion, in that
declaration was merely repetitive of sworn statements in "surety's declaration" that
surety did not willfully disobey orders of court and that defendant's failure to appear was
without knowledge and consent of surety. People v. Resolute Ins. Co. (App. 2 Dist.
1975) 120 Cal.Rptr. 17, 46 Cal.App.3d 249. Bail 79(2)
Purported affidavits or declarations attached to notice of motion to vacate forfeiture and
to exonerate bond which lacked jurat or place or date of execution did not constitute
competent evidence on motion. People v. United Bonding Ins. Co. (App. 2 Dist. 1969)
77 Cal.Rptr. 310, 272 Cal.App.2d 441. Bail 79(2)

Purported affidavit which contained acknowledgment reciting only that alleged affiant
had appeared before a notary public and acknowledged that she had executed the
document was not a sufficient affidavit to form basis for contempt proceeding in that it
was not a written declaration under oath or an unsworn statement of alleged facts
certified or declared to be true under penalty of perjury so that contempt proceeding
was void ab initio. Palm Springs Alpine Estates, Inc. v. Superior Court for Los Angeles
County (App. 2 Dist. 1967) 63 Cal.Rptr. 618, 255 Cal.App.2d 883. Contempt 54(2)
Undenied declaration of property owner that she did not have her glasses and
unknowingly signed grant deed attached to escrow instructions for sale of her property
and that in signing escrow instructions she relied on assurance by prospective
purchaser that they contained his agreement to lease back the property to her for two
years established a complete defense to his actions for declaratory relief and
reformation of contract. Truslow v. Woodruff (App. 2 Dist. 1967) 60 Cal.Rptr. 304, 252
Cal.App.2d 158. Judgment 185.3(18)
Declarations in support of vacation of forfeiture of bail bond that did not show either date
or place of execution were insufficient to meet requirements of this section that
declaration show date and place of execution; however, where no objection was made
to trial court and defect could easily have been cured, the defect was waived. People v.
United Bonding Ins. Co. (App. 2 Dist. 1966) 50 Cal.Rptr. 198, 240 Cal.App.2d 895. Bail
79(2)
Affidavit of corporate officer in support of motion for change of venue reciting that officer
declared under penalty of perjury certain specific facts was sufficient, although it failed
to state that facts declared were true. Pacific Air Lines, Inc. v. Superior Court In and For
City and County of San Francisco (App. 1 Dist. 1965) 42 Cal.Rptr. 68, 231 Cal.App.2d
587. Affidavits 9
Unverified statement wherein it appeared that maker of statement did not have or
pretend to have personal knowledge of matters necessary to be shown to obtain order
for substituted service on foreign corporation was insufficient to give court jurisdiction to
order substituted service. Tri-State Mfg. Co. v. Superior Court for Los Angeles County
(App. 2 Dist. 1964) 36 Cal.Rptr. 750, 224 Cal.App.2d 442. Corporations 668(14)
Unless it affirmatively appears from other language in declaration supporting motion for
summary judgment that declarant can testify competently to facts alleged therein,
declaration is incompetent. Johnson v. Drew (App. 2 Dist. 1963) 32 Cal.Rptr. 540, 218
Cal.App.2d 614. Judgment 185.1(4)
Husband's declaration, which was purportedly, though probably not properly, executed
in compliance with this section and was filed with return to alternative writ of mandate
compelling vacation and setting aside of order denying wife's motion for change of
venue of divorce action against her could not be considered in determining sufficiency
of affidavits before superior court with relation to the motion. Pearson v. Superior Court,

City and County of San Francisco (App. 1 Dist. 1962) 18 Cal.Rptr. 578, 199 Cal.App.2d
69. Mandamus 172
Declaration, reciting that it was executed in San Bernardino County, sufficiently
complied with this section; and motion for disqualification of magistrate was improperly
denied for alleged failure of such supporting declaration to indicate place of execution
thereof. McCauley v. Superior Court of California In and For San Bernardino County
(App. 4 Dist. 1961) 12 Cal.Rptr. 119, 190 Cal.App.2d 562. Criminal Law 90(1)
16. Waiver of error
In challenging trial court's award of attorney fees to appellee, appellants waived their
objections that letter from one of appellee's attorneys had not been signed under
penalty or perjury and that neither of appellee's attorneys had itemized their services,
where appellants had never objected in trial court to either the letter or lack of
itemization. Robinson v. Grossman (App. 4 Dist. 1997) 67 Cal.Rptr.2d 380, 57
Cal.App.4th 634. Appeal And Error 226(2)
Plaintiff waived technical defects in defendant's declarations in support of motion for
summary judgment, with respect to failure to specify where declarations were executed,
by failing to object. Fuller v. Goodyear Tire & Rubber Co. (App. 4 Dist. 1970) 86
Cal.Rptr. 705, 7 Cal.App.3d 690. Judgment 189
17. Summary judgment
Although a declaration which consisted of a recital of facts followed by the statement
that declarer stated under penalty of perjury that the foregoing was true and correct was
not an affidavit in compliance with summary judgment rule, neither the trial court nor the
court of appeals was precluded from considering the declaration in determining whether
a factual issue had been raised precluding summary judgment, where no motion to
strike or other objection was made to the declaration. U. S. for Use and Benefit of Austin
v. Western Elec. Co., C.A.9 (Cal.)1964, 337 F.2d 568. Federal Civil Procedure 2554;
Federal Courts 752
Under statute specifying 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," a
declaration executed out-of-state submitted in opposition to summary judgment motion,
was invalid where it did not state it was made "under the laws of the State of California."
Kulshrestha v. First Union Commercial Corp. (2004) 15 Cal.Rptr.3d 793, 33 Cal.4th 601,
93 P.3d 386. Judgment 185.1(1)
Statements of witnesses declaring statements they made to plaintiff's investigator to be
true under penalty of perjury, which were reflected in transcripts of telephone
conversations between investigator and witnesses, did not convert witnesses'
statements into admissible affidavits or declarations for purpose of opposing
defendants' summary judgment motion; witnesses did not subscribe any statement, and

there was no indication that investigator was authorized by law to administer oaths.
Stockinger v. Feather River Community College (App. 3 Dist. 2003) 4 Cal.Rptr.3d 385,
111 Cal.App.4th 1014. Judgment 185.1(6)
Where declaration, in support of summary judgment motion, was undated and did not
indicate where it was executed and affiant declared only that all of facts stated were
within his personal knowledge without declaring that facts set forth were true,
declaration was defective in form and was improperly considered by trial court. Baron v.
Sarlot (App. 2 Dist. 1975) 120 Cal.Rptr. 675, 47 Cal.App.3d 304. Judgment 185.1(1);
Judgment 185.1(3)
Memorandum in opposition to motion for summary judgment could not serve as
declaration if not made under penalty of perjury. Truslow v. Woodruff (App. 2 Dist. 1967)
60 Cal.Rptr. 304, 252 Cal.App.2d 158. Judgment 185.1(6)
That declarations filed by cross-defendant in support of his motion for summary
judgment did not include customary notation of date and place of execution, where
declarations filed by cross-defendant personally was dated and indicated on its face
county of execution, was not fatal defect. Hirschman v. Saxon (App. 2 Dist. 1966) 54
Cal.Rptr. 767, 246 Cal.App.2d 589. Judgment 185.1(6)
If it appears from examination of affidavits that no triable issue of fact exists and that
affidavits in support of motion state facts which if proved would support a judgment in
favor of movant, then summary judgment is proper. Weir v. Snow (App. 2 Dist. 1962) 26
Cal.Rptr. 868, 210 Cal.App.2d 283. Judgment 185.2(8)
18. Review
Failure of declaration to state that it was executed within state and was based on
personal knowledge of declarant who was competent to testify thereto at trial could not
be raised for first time on appeal. Rader v. Thrasher (App. 1 Dist. 1972) 99 Cal.Rptr.
670, 22 Cal.App.3d 883. Appeal And Error 223
Where declaration under penalty of perjury was executed in foreign jurisdiction, and
added nothing of substance to what was shown by both respondents' declaration and by
settled statement of plaintiffs' testimony, it was unnecessary to determine whether its
unsworn recital since unobjected to, could be accorded evidentiary status. Waller v.
Waller (App. 3 Dist. 1970) 83 Cal.Rptr. 533, 3 Cal.App.3d 456. Appeal And Error 843(3)
Declaration attached to motion to stay execution of judgment, which declaration was
neither subscribed nor dated by declarant, was considered by reviewing court, where it
was attached to motion that was subscribed and dated. Hicks v. Hicks (App. 2 Dist.
1968) 70 Cal.Rptr. 878, 264 Cal.App.2d 890. Appeal And Error 837(9)
In reviewing summary judgment, testimony which declarant stated would be testified to
by specified witness was not considered. Hayward Union High School Dist. of Alameda

County v. Madrid (App. 1 Dist. 1965) 44 Cal.Rptr. 268, 234 Cal.App.2d 100. Appeal And
Error 837(1)
West's Ann. Cal. C.C.P. 2015.5, CA CIV PRO 2015.5

11:14. Effect of failure to comply with requirements

Affidavits and declarations under penalty of perjury are live testimony in writing. [See
Live Testimony in Writing. 7 Cal Law 22 No.4 (April 1987)] An affidavit or declaration is
sufficient if drawn in such a manner that a perjury charge would lie if any material
allegation contained within was found to be false. [Mack v. Superior Court In and For
Sacramento County (1968) 259 Cal.App.2d 7, 66 Cal.Rptr. 280]
Technical defects in an affidavit or declaration often prevent their consideration by the
trial court. A declaration filed in support of a summary judgment motion was ruled
technically defective where it was not signed, did not state that the matters were true
and correct, did not state the place of execution, did not state that the information was
based on personal knowledge, and did not state that it was made under penalty of
perjury. [See Witchell v. De Korne (1986) 179 Cal.App.3d 965, 225 Cal.Rptr. 176; and
see also Palm Springs Alpine Estates, Inc. v. Superior Court for Los Angeles County
(1967) 255 Cal.App.2d 883, 63 Cal.Rptr 618 (holding that in the absence of a
technically sufficient affidavit an entire contempt proceeding was void ab initio)]
However, technical defects do not always make a declaration insufficient. For instance,
to contend that a declaration under penalty of perjury is invalid because it fails to state
the date and place of execution, is to elevate form over substance. [See People v.
Resolute Ins. Co. (1975) 46 Cal.App.3d 249, 120 Cal.Rptr. 17] The practitioner should
be aware of the possibility of amending a declaration to make it formally sufficient. [See
Baron v. Mare (1975) 47 Cal.App.3d 304, 120 Cal.Rptr. 675]
Declarations and affidavits may also be ruled substantively insufficient for a variety of
reasons, including lack of evidentiary facts, inadmissible evidence, and failure to
controvert allegations. [See 6 Witkin, California Proc. (3d ed.), Proceedings Without
Trial 288290] Declarations and affidavits that fail to state that they are based on the
personal knowledge of the declarant or affiant, when this is a statutory requirement, are
insufficient. [See Witchell v. De Korne (1986) 179 Cal.App.3d 965, 225 Cal.Rptr 176
(declaration that failed to state that the information contained within it was based on
personal knowledge, was insufficient to support a motion for summary judgment under
Code Civ. Proc. 437c); and Bowden v. Robinson (1977) 67 Cal.App.3d 705, 136
Cal.Rptr. 871. (affidavits containing statements made to the best of affiant's knowledge
did not indicate sufficient personal knowledge to support summary judgement motion
under Code Civ. Proc. 437c] Declarations that are conclusionary rather than factual
are substantively insufficient and are inadmissible as evidence. [Baron v. Mare (1975)
47 Cal.App.3d 304, 120 Cal.Rptr. 675] Similarly, affidavits that recite matters which

would be excluded under the rules of evidence are defective. [Southern Pac. Co. v. Fish
(1958) 166 Cal.App.2d 353, 333 P.2d 133 (excluding hearsy, conclusions, and
opinions)]
Practice Note: Whenever points and authorities contain argument, that argument
must be supported by evidence.

[FNa] This chapter was written in consultation with J. Alan Frederick, an attorney in
the law firm of Marrone, Robinson, Frederick & Foster in Burbank, California. Mr.
Frederick received his J.D. degree from University of California at Los Angeles and was
admitted to the California Bar in 1974.

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