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"I do declare..." Declarations Under California Law

The California Court of Appeal has recently again clarified and emphasized that declarations executed out of state for use in litigation pending in California courts must contain language indicating that the declarant certifies or declares that the statement is made under the laws of the State of California. Dheeraj Kushrestha v. First Union Commercial Corporation (2004) 33 Cal.4 th 601.

Plaintiff Dheeraj Kushrestha sought to oppose a summary judgment motion by presenting a declaration signed under penalty of perjury in another state. There was no reference to California laws. The evidence was excluded and summary judgment was granted. The Court of Appeal explained that a declarant who executes a document within California, as evidenced by the indication of the place of signing, is presumed to know that the act of signing the document triggers the application of California law, including the penalties for perjury. In contrast, a declarant signing a declaration outside of California is not presumed to know that the laws of California apply and must therefore expressly state this understanding. ("Where a California site cannot be named because the declaration was signed elsewhere, the declarant is deemed to know that California law applies only if he explicitly invokes such law." Dheeraj at 799.)

In affirming, the court found that a declaration, which in essence is hearsay, is admissible, when authorized, only when it complies with the requirements of Code of Civil Procedure § 2015.5. This section permits the use of declarations or affidavits as evidence, in certain circumstances, only when the document:

is certified or declared by him or her to be true under penalty of perjury, is subscribed by him or her, and (1), if executed within this state, states the date and place of execution, or (2), if executed at any place, within or without this state, states the date of execution and that it is so certified or declared under the laws of the state of California. The certification or declaration may be in substantially the following form:

"(a) If executed within this state: [P] 'I certify (or declare) under penalty of perjury that the foregoing is true and correct':

_______________ _______________ Date and Place Signature

"(b) If executed at any place, within or without this state: [P] 'I certify (or declare) under penalty of perjury under the laws of the State of California that the foregoing is true and correct':

_______________ ___________

Date Signature

Therefore, when executing a declaration while outside of California for use in litigation pending in California, compliance with the above rule is essential. We have used and recommend the following language:

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this ____ day of ______, 2005, at (place of signing).

(signature)_______

(Name), Declarant

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