Wednesday, April 29, 2026
Page 3
Court of Appeal:
Judge Erred in Accepting Non-English Speaker’s Declaration
Opinion Says Trial Court Wrongly Granted Summary Judgment to Defendant, Who Admits to Lack of Language Skill, Based on Written Account in English That Failed to Attach Interpreter Certification
By a MetNews Staff Writer
Div. One of this district’s Court of Appeal held yesterday that a trial judge erred in granting summary judgment to a defendant, in a case alleging that the party maliciously prosecuted a malpractice action against her former attorney, based on a declaration attesting, in English, that she voluntarily dropped her earlier complaint due to procedural defects unrelated to the merits where there was no dispute that she did not speak the language.
In opposing the defendant’s request, her former lawyer, Long Beach-based solo practitioner Brian S. Detrick, objected to the declaration because his ex-client could not read or speak English, a fact she does not contest, and provided no certification indicating that the document accurately reflected her words.
On Dec. 12, 2024, then-Los Angeles Superior Court Judge Holly Fujie (now retired) overruled the objection, opining that Evidence Code provisions governing the use of interpreters did not apply to written declarations, and granted judgment to the defendant.
Saying “[t]he trial court erred in overruling Detrick’s objection,” Acting Presiding Justice Helen I. Bendix, writing for the court, declared:
“It is undisputed [the defendant] cannot read, write, or speak English, and thus her competence as a witness depended on an interpreter as an intermediary. [She] provided no evidence as to the identity or qualifications of her interpreter, nor any kind of attestation...that the declaration accurately reflected [her] words. Her declaration therefore did not provide competent evidence of her reasons for dismissing the malpractice suit. Absent that evidence, she could not meet her burden to make a prima facie showing she…was…entitled to summary judgment.”
Justice Gregory Weingart and Justice Michelle C. Kim joined in the opinion.
Malpractice Allegations
The dispute erupted after Keiko Shimada filed a complaint against Detrick in December 2019, asserting malpractice claims based on allegations that he withheld critical information relating to a dispute over the estate of her deceased husband, purportedly prompting her to enter into an unfavorable settlement.
On Sept. 21, 2020, Detrick’s counsel sent a letter signaling an intent to file a demurrer based, in part, on allegations that her causes of action were untimely. The message also included a “Malicious Prosecution Warning,” asserting that Shimada was aware that Detrick was not at the mediation when she signed the purportedly unfavorable agreement, and that he did not advise her to sign it.
After Shimada requested dismissal of the complaint, with prejudice, Detrick filed a pleading asserting a claim for malicious prosecution in October 2022. On May 6, 2024, Shimada moved for summary judgment, filing a declaration that said:
“The main motivation for my [requesting dismissal] was concern that the limitations period had expired on one or more of my causes of action in the Malpractice Complaint, as [Detrick’s counsel] had advised [in his letter].”
In addition to his evidentiary objections to the declaration, Detrick asserted that her purported attestation that the alleged procedural flaw was “one” of the motivations underlying the request for dismissal was insufficient to justify summary judgment, arguing that whether or not she acted with malice was a question of fact for the jury.
Unconvinced, Fujie granted the motion, saying that “the voluntary dismissal of the Malpractice Claim was based on technical grounds, i.e. the statute of limitations, and it does not constitute a favorable termination” as required for a malicious prosecution claim because it “does not reflect the substantive merits.”
Malicious Prosecution Claim
Bendix noted that a party asserting a claim for malicious prosecution must establish that the prior action was initiated with malice and without probable cause, as well as showing that the matter was pursued to a legal conclusion that was favorable to the plaintiff. She explained:
“A dismissal based on [purely technical] grounds…‘is not favorable for purposes of a malicious prosecution claim.’…An example of a technical or procedural ground that will not support a malicious prosecution claim is a dismissal based on the statute of limitations.”
Citing Evidence Code §701, which provides that a witness is disqualified if she is “[i]ncapable of expressing…herself concerning the matter so as to be understood, either directly or through interpretation by one who can understand him,” the jurist opined:
“Shimada could not ‘directly’ express herself in her declaration because she cannot write or speak English….Nor could she certify under penalty of perjury that the contents of her English-language declaration were true and correct, as required under Code of Civil Procedure section 2015.5, because she could not read it. To establish her competence as a witness, therefore, she required ‘interpretation by one who can understand’ her.”
Necessary Intermediary
Finding that she “failed to provide evidence of this necessary intermediary,” Bendix wrote:
“There were no declarations submitted in support of the motion for summary judgment explaining how Shimada’s declaration was generated. The trial court…did not know who, if anyone, served as an interpreter, nor did the trial court know the interpreter’s qualifications. The trial court did not know if or how the interpreter worked with Shimada to ensure the English-language declaration accurately reflected her words, and that she understood what she was signing. There was no attestation from the interpreter as to the accuracy of the translation. Without this information, Shimada’s certification that her English-language declaration is true and correct was not competent.”
Saying that “[w]e recognize that Shimada’s reply below, signed by her attorney, stated Shimada reviewed her declaration with her attorney’s Japanese-speaking employee and attested to each statement before signing,” she remarked:
“Assuming arguendo the trial court properly could consider these representations by Shimada’s counsel, the representations nevertheless failed to fill the foundational gaps in Shimada’s declaration. Shimada and her counsel never identified below the ‘Japanese-speaking employee’ or provided any information about that person’s competence to translate a document signed under penalty of perjury.”
Evidence Code Sections
Pointing to Evidence Code §§752 and 753, which govern the use of interpreters and translators, she declared that “[w]e disagree with the trial court that these provisions apply only to oral testimony” and noted that California Rule of Court 3.1110(g) also provides that “[e]xhibits written in a foreign language must be accompanied by an English translation, certified under oath by a qualified interpreter.”
She added:
“Even if arguendo sections 751 through 753 and rule 3.1110(g) would not apply to the circumstances of this case, the principles of witness competence…do. The trial court abused its discretion by overruling Detrick’s objection and admitting Shimada’s declaration.”
Bendix concluded:
“Without her declaration, Shimada could not meet her burden to make a prima facie showing that she dismissed her malpractice complaint on procedural rather than substantive grounds, the only basis for Shimada’s summary judgment motion.”
The case is Detrick v. Shimada, B344461.
Paul J. Carter of the Long Beach firm Bergkvist, Bergkvist & Carter LLP and Detrick represented the plaintiff. Larry M. Nakahara and Ashleigh W. McCurchin of the Torrance-based Nakahara Law A.P.C. acted for the defendant.
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