Metropolitan News-Enterprise


Tuesday, July 20, 2004


Page 1


California High Court Rules Declaration Inadmissible Unless Sworn to ‘Under Laws of the State’


By a MetNews Staff Writer


A declaration under penalty of perjury, executed outside the state, is inadmissible in a summary judgment or similar proceeding unless sworn to “under the laws of the State of California,” the state Supreme Court ruled yesterday.

In a unanimous decision, the court upheld lower court rulings in favor of First Union Commercial Corporation. A Yolo Superior Court judge granted the company summary judgment in a suit brought against it by a former employee, holding that a declaration executed in Ohio by the plaintiff was inadmissible because it lacked the statutorily required language.

The plaintiff claimed that First Union made false representations in order to induce him to move to California in 1999 and take a position with its subsidiary, The Money Store. He also said that he was wrongfully terminated a year later based on false allegations of sexual harassment, and that in the course of the company’s investigation of those allegations, he suffered discrimination based on his being “a male Indian of Hindu religion.”

Code of Civil Procedure Sec. 2015.5 says that a declaration must either state a “place of execution” within California, or recited that it is made “under the laws of the State of California.”

The trial court denied relief based on excusable neglect. The defendants claimed that the non-compliance lacked any excuse, that the plaintiff waited too long to seek relief, that the plaintiff had deliberately tried to avoid subjecting himself to California’s perjury laws, and that the plaintiff had no meritorious claim.

        The appellate courts said the trial judge correctly applied Sec. 2015.5 and did not abuse his discretion in denying relief under Sec. 473(b).

Justice Marvin Baxter, writing for the high court, said that Dheeraj Kulshrestha’s declaration, concluding with “I declare under penalty of perjury that the above is true and correct, executed this 8th day of August 2001 at Columbus, Ohio,” did not substantially comply with the statute.

Baxter explained:

“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.”

Baxter rejected the contention that the lack of a statement that the declaration is made “under the laws of the State of California is a “de minimis” violation of the law.

“No state court decision approves a declaration under circumstances similar to those present here,” the justice wrote. “Contrary to what petitioner implies, courts 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.”

A number of treatises warn counsel to follow the statutory format, Baxter noted, also pointing out that the Judicial Council’s form declaration includes the language.

The case is  Kulshrestha v. First Union Commercial Corporation, 04 S.O.S. 3693.


Copyright 2004, Metropolitan News Company