Judge Michael Small, Case Number: 23STCV36317, Date: 2024-10-31 Tentative Ruling

Judge: Michael Small, Case: 23STCV36317, Date: 2024-10-31 Tentative Ruling

Case Number: 23STCV36317 Hearing Date: October 31, 2024 Dept: 57

Pending before the Court is the motion of Plaintiff Robert J. Wood (“Wood”) for summary adjudication on the first three causes of action in his First Amended Complaint against Defendant Gerald Marcus, the personal representative of the estate of Alexandra Menchacha (“Marcus”). The Court is denying Wood’s motion because the declaration of Wood on which the motion rests does and to which Marcus objected does not comply with the requirements of Code of Civil Procedure Section 2015.5.

Subject to exceptions that are inapplicable here, Section 2015.5 prescribes the form of the certification that must accompany any affidavit or declaration that California law permits to be filed as support for any matter. California law permits a party moving for summary judgment or summary adjudication to submit affidavits or declarations in support of the motion (Section 437c(b)(1).) Thus, Section 2015.5 applies to such affidavits or declarations. (Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 612 [“Kulshrestha”].)

Section 2015.5 states that an unsworn affidavit or declaration is acceptable, provided that the affiant of declarant certifies or declares in writing that that affidavit or declaration is “true under penalty of perjury, is subscribed by him or her, and (1) if executed within [California], states the date and place of execution, or (2) if executed at any place, within or without [California], states the date of execution and that it is so certified or declared under the laws of the State of California.” The requirement in Section 2015.5 that the affidavit or declaration be “subscribed” by the affiant or declarant “means to sign with one’s own hand.” (Stockinger v. Feather River Community College (2003) 111 Cal.App.4th 1014, 1026.) In turn, the subscription requirement means that the affiant or declarant’s attorney cannot sign the affidavit or declaration on behalf of the affiant or declarant, even if the affiant or declarant authorizes the attorney to do that. (In re Marriage of Reese & Guy (1999) 73 Cal.App.4th 1214, 1222-1223.) Section 2015.5 was adopted to enable affiants and declarants to bypass the “cumbersome” process of obtaining a notary public to administer an oath to the affiant or declarant. (Kulshrestha, supra, 33 Cal.4th at 609.) An affidavit or declaration that meets the Section 2015.5 specifications is treated the same as one that is “administered under oath.” (Id. at p. 610.) The Court can, however, disregard a declaration or affidavit that does not meet those specifications. (Id. at p. 612 [trial court properly excluded from consideration in disposing of a summary judgment motion the plaintiff’s declaration because it failed to comply with Section 2015.5]; see also Baron v. More (1975) 47 Cal.App.3d 304, 308; Truslow v. Woodruff (1967) 252 Cal.App.2d 158, 163-164.)

Here, Wood’s motion for summary adjudication rests largely on a supporting typewritten declaration dated August 15, 2024 that contains Wood’s electronic signature in the following form:

/s/ Robert J. Wood

Robert J. Wood

The Court will refer to this typewritten declaration as the “August 15 Declaration.” Wood also submitted in support of his motion a handwritten declaration, dated August 1, 2024, that he executed in his own hand at the state prison where he is incarcerated and that states “I Robert Wood authorize my attorney Jeff Price to affix my signature to a declaration for filing with the Court [in this action] after said declaration has been read to me in its entirety.” The Court will refer to this handwritten declaration as the “August 1, Declaration.”

The August 15 Declaration is defective under Section 2015.5 in the following respects.

First, the August 15 Declaration was not subscribed by Wood in his own hand It has what purports to be Wood’s electronic signature, which presumably was entered by Wood’s attorney Jeff Price consistent with Wood’s authorization in the August 1 Declaration for Price to affix his signature to a future declaration (i.e, the declaration that became the August 15 Declaration) . Price’s act of affixing Wood’s electronic signature on the August 15 Declaration, even if authorized by Wood, is not permissible under Section 2015.5’s subscription requirement. Marcus objected to the August 15 Declaration on this ground. The Court is sustaining that objection.

Second, the August 15 Declaration does not state where it was executed. If it was executed in California, then the Declaration needed to state, in order to comply with Section 2015.5, where in California it was executed. The August 15 Declaration does not comply with that requirement. Alternatively, the August 15 Declaration would have complied with Section 2015.5 if it stated that it was certified or declared under the laws of California. The August 15 Declaration does not comply with that requirement either.

Because the August 15 Declaration does not comply with the specifications of Section 2015.5, the Court is disregarding it for purposes of considering Wood’s motion for summary adjudication. The other evidence that Wood submitted in support of his motion was excerpts from the transcript of the deposition of Ashley Broda and a declaration from Broda. In the Court’s view, this evidence did not satisfy Wood’s burden of demonstrating under Section 437c(f) that there are no disputed issues of material fact as to the causes of action on which Wood seeks summary adjudication so as to indicate that Wood is entitled to judgment as a matter of law on those causes of action and thereby shift the burden to Marcus to show the presence of disputed issues of material fact. (See Duffey v. Tender Heart Home Care Agency, LLC (2019) 31 Cal.App.5th 232, 240–241 [discussing initial burden and burden shifting in connection with motions for summary adjudication; Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 924-925 [same].)