Affidavit

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An affidavit is a written statement under oath, made without notice to the adverse party [Code Civ. Proc. § 2003]. It is one of three ways to take the testimony of a witness Code Civ. Proc. § 2002]. The other two methods are by deposition, which does require notice to adverse parties to permit cross examination [Code Civ. Proc. §§ 2002, 2004], and by oral examination in the presence of the court or jury [Code Civ. Proc. §§ 2002, 2005].









Declaration Under Penalty of Perjury


Code Civ. Proc. § 2015.5 renders a declaration under penalty of perjury the legal equivalent of an affidavit [People v. Griffini (1998) 65 Cal. App. 4th 581, 587, 76 Cal. Rptr. 2d 590] .

Code Civ. Proc. § 2015.5 provides that whenever, under any law of California or under any rule, regulation, order, or requirement made pursuant to the law of California, any matter is required or permitted to be supported, by the sworn statement, declaration, verification, certificate, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), the matter may with like force and effect be supported by the person's unsworn written declaration [Code Civ. Proc. § 2015.5].Declaration_of_Indep.jpg

The declaration must recite that it is declared by the person to be true under penalty of perjury, be subscribed by him or her and [Code Civ. Proc. § 2015.5]:

If executed in California, state the date and place of execution, or If executed at any place, within or without California, state the date of execution and that it is so declared under the laws of the State of California.

For a declaration to comply with the requirements of Code Civ. Proc. § 2015.5, the declaration must either state on its face that it was executed in California or state that it is declared under the laws of the state of California [Kulshrestha v. First Union Commerical Corp. (2004) 33 Cal. 4th 601, 618, 15 Cal. Rptr. 3d 793, 93 P.3d 386 (declaration signed outside California must state they were made "under the laws of the State of California" in order to satisfy section 2015.5 and to be used as evidence)].

"Subscribe" means signed by oneself with his or her hand [In re Marriage of Reese & Guy (1999) 73 Cal. App. 4th 1214, 1222, 87 Cal. Rptr. 2d 339 (attorney's custom of signing declarations under penalty of perjury on behalf of clients and witnesses improper)]. There is no compliance with Code Civ. Proc. § 2015.5 where a transcript reflects that a witness was asked verbally by plaintiff's investigator, at the end of a telephone conversation, if his or her statements were true and correct under penalty of perjury [Stockinger v. Feather River Community College (2003) 111 Cal. App. 4th 1014, 1026-1027, 4 Cal. Rptr. 3d 385].

In some circumstances, a declaration that is not subscribed in compliance with Code Civ. Proc. § 2015.5 may be deemed harmless error if another properly subscribed declaration is concurrently filed with the defective declaration [see Hearn v. Howard (2009) 177 Cal. App. 4th 1193, 1204, 99 Cal. Rptr. 3d 642 (where declaration of due diligence neither indicated that it was executed in California nor provided that it was executed under penalty of perjury under the laws of the State of California, the defect was found to be harmless where the declaration was attached to, expressly referenced in, and filed with the proof of service, which was properly executed under penalty of perjury under the laws of the State of California)].


Certificate


A certificate is a written testimony to the truth of any fact [ People v. Griffini (1998) 65 Cal. App. 4th 581, 586-587, 76 Cal. Rptr. 2d 590] . An affidavit or declaration under penalty of perjury which certifies to the truth or authenticity of something is sometimes called a certificate [see Code Civ. Proc. § 2015.5].

The term certificate frequently refers to the written statement of an officer of the court which, external image 26_58_CertOfService.gifunless an affidavit or declaration under penalty of perjury is expressly required, need not be made under oath or under penalty of perjury [see Code Civ. Proc. § 1013a(2) (attorney's certificate proving service); Code Civ. Proc. § 1013a(4) (clerk's certificate proving service); Code Civ. Proc. § 2015.3 (certificate of sheriff, marshal, or court clerk as being of same force and effect as affidavit)].













Who May Make

Any Competent Witness With Knowledge of Facts


By analogy to Evid. Code § 700, which provides that except as otherwise provided by statute, every person, irrespective of age, is qualified to be a witness, any person is qualified to make an affidavit [McLellan v. McLellan (1972) 23 Cal.App. 3d 343, 359-360, 100 Cal. Rptr. 258] . Persons who are incapable of expressing themselves concerning the matter so as to be understood (directly or through interpretation by one who can understand) and persons who are incapable of understanding the duty of a witness to tell the truth are disqualified [Evid. Code § 701].

Generally, an affidavit, or declaration under penalty of perjury [Code Civ. Proc. § 2015.5], is made by any person competent to swear to, or affirm the truth of, the facts contained in it [see Code Civ. Proc. §§ 2003, 2094; see Evid. Code § 702] and who is capable of being prosecuted for perjury if those facts are false [see Mack v. Superior Court (1968) 259 Cal. App. 2d 7, 10, 66 Cal. Rptr. 280 (test of sufficiency of affidavit); see also In re Marriage of Reese & Guy (1999) 73 Cal. App. 4th 1214, 1223, 87 Cal. Rptr. 2d 339 (oath or declaration must be in form that would allow criminal sanctions if material declared to be true is not true or is not known to be true)].

Under certain circumstances, however, the person authorized to make a particular affidavit (declaration) is specified by statute [see, e.g., Code Civ. Proc. § 2010 (proof of publication by printer); Code Civ. Proc. § 1013a(1) (proof of mailing by person residing or working in county of mailing and over 18)].

On Behalf of Business Entity


Subject to the requirements of the articles of incorporation and bylaws, an affidavit or declaration on behalf of a corporation may be made by any one of its officers or agents [Old Settlers Investment Co. v. White (1910) 158 Cal. 236, 246, 110 P. 922] , as directed by the board of directors [see Civ. Code § 1190.1; Corp. Code §§ 207(a), 300(a)].

In the case of a partnership, it has been held that one of the partners must make an affidavit or declaration on behalf of the partnership [Gee Chong Pong v. Harris (1918) 38 Cal. App. 214, 217-218, 175 P. 806] . The modern trend has been to treat partnerships and other unincorporated associations as legal entities [see Code Civ. Proc. §§ 369.5, 416.40].

Therefore, in the case of a partnership or unincorporated association, it would seem that an affidavit or declaration could be executed in its behalf by a general manager or officer, if authorized by the partnership or unincorporated association.


Who May Take


An affidavit to be used before any court, judge, or officer of California may be taken before any officer authorized to administer oaths [Code Civ. Proc. § 2012]. Officers authorized to administer oaths include every court, every judge or retired judge, every clerk of any court, every justice or retired justice, every notary public, every shorthand reporter certified under Bus. & Prof. Code §§ 8020-8027, and every officer or person authorized to take testimony in any action or proceeding, or to decide on evidence [Code Civ. Proc. § 2093]. Certain commissioned military officers are authorized to administer oaths to persons serving in or with the armed forces of the United States or their spouses Civ. Code § 1183.5].



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