Affidavits - Declarations - Depositions

Affidavits

 

Declarations

 

Depositions

 

Civil Procedure

 

California Law

 

 

 

(…) Code of Civil Procedure section 437c, subdivision (b)(2) provides that a party may oppose a motion for summary judgment with, among other things, “affidavits, declarations, and depositions . . . .” The excerpts from the Colorado deposition did not qualify as any of these under California law. The transcript of Dr. Kasbekar’s testimony was not an “affidavit,” which is defined as a “written declaration under oath, made without notice to the adverse party.” (Code Civ. Proc., § 2003.) But, “a transcript of... testimony is not a ‘written declaration under oath.’” (Sweetwater, 6 Cal.5th at p. 942.) Moreover, the unsigned transcript was not a “declaration,” because “a declaration must be signed and recite that the person making it certifies it to be true under penalty of perjury.” (Id., at  p. 941.) Finally, Dr. Kasbekar’s Colorado deposition was not a “deposition” in the Wongs’s case against Stillwater because Dr. Kasbekar’s testimony was not taken after notice to Stillwater. Code of Civil Procedure section 2004 defines a “deposition” as “a written declaration, under oath, made upon notice to the adverse party, for the purpose of enabling him to attend and cross-examine.” Similarly, Code of Civil Procedure section 2025.620 provides that “at the trial or any other hearing in the action, any part or all of a deposition may be used against any party who was present or represented at the taking of the deposition, or who had due notice of the deposition. . . .” In short, for purposes of making or opposing a motion under Code of Civil Procedure section 437c, a “deposition” can only mean a deposition taken after notice to the parties in the same action in which summary judgment is sought. The Colorado deposition was not that.

 

 

 

(California Court of Appeal, June 30, 2023, Wong v. Stillwater Insurance Comp., Docket No. A162893, Certified for Publication)