Admission in Deposition Did Not Preclude Contradiction In Subsequent Declaration, Court of Appeal Rules

Tuesday, September 18, 2012

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Admission in Deposition Did Not Preclude Contradiction In Subsequent Declaration, Court of Appeal Rules

By a MetNews Staff Writer

A defendant’s statement in a deposition that he had no basis for disputing the authenticity of his signature on a loan guaranty did not justify a $6.8 million summary judgment in favor of the creditor in light of the man’s post-deposition declaration that the signature wasn’t his, the Court of Appeal for this district has ruled.

The decision came in a not-for-publication opinion filed Friday. It reversed a decision by Los Angeles Superior Court Judge Peter J. Meeka.

Writing for Div. Three, Justice Patti Kitching quoted this portion of the deposition of defendant Ken Chen Cheng:

“Q: I want you to turn to the very last page, page 4.

“A: Yes.

“Q: Is that your signature at the bottom?

“A: It looks like my signature.

“Q: Do you have any reason to believe it’s not your signature?

“A: No. No.

“Q: ‘No’ you don’t have a reason to believe that?

“A: I believe that’s my signature.”

Cheng later declared that he could not have signed the instrument because he was out of the country at the time of the purported execution, and provided evidence in the form of stampings on his passport.

Kitching wrote:

“Where a declaration prepared in opposition to a summary judgment motion conflicts with the declarant’s deposition testimony, the trial court may disregard the declaration and conclude there is no substantial evidence that a triable issue of fact exists….A party’s deposition testimony, however, is not an incontrovertible judicial admission of a fact that bars the party from introducing other evidence controverting that fact….Cheng’s deposition testimony about his signature on the guaranty was equivocal. He testified that the signature on the guaranty ‘looks like my signature,’ agreed that he had no reason to believe it was not his signature, and said he ‘believed’ it was his signature. These expressions are not the same as stating ‘I signed the guaranty’ or ‘That is my signature on the guaranty.’ Where admissions in discovery responses are equivocal concessions, evidence in declarations which contradict those admissions can be considered.”

Kitching said that copies of page from the passport constituted “credible evidence which contradicts Cheng’s prior equivocal statements, which may be therefore be disregarded.”

There was, therefore, “a triable issue of fact as to whether Cheng in fact signed the guaranty,” she declared.

The case is Kout Financial v. Cheng, B235773.

Bill W. Lew of the Lew Law Firm and Stuart B. Esner of Esner, Chang & Boyer represented Cheng. David Cantrell and Matthew J. Kraus of Lester & Cantrell and Fredric J. Greenblatt of Greenblatt & Associates acted for the creditor.