Legal Say-So in Declarations Is Not Evidence

Davis v. Kiewit Pacific Co., No. D062388 (D4d1 Oct. 8, 2013)

In an otherwise procedurally uninteresting employment opinion that was recently order published by the Acting Presiding Justice Nares, the court addressed the initial burden of a party moving for summary adjudication. As has been well-established since the Supreme Court's 2001 Aguilar decision—unlike the federal Celotex standard, where a movant can just “point” to the absence of evidence—in California, the moving party must come forward with evidence to meet its initial burden under Code of Civil Procedure § 437c(c). Applying that rule, the court holds that a declaration that merely parrots the relevant legal standard—here, that the defendant did not have “substantial discretionary authority over decisions” affecting the plaintiff’s work—is insufficient to meet the moving party’s burden. In order to shift the burden, a declaration needs to contain testimony that actually states evidentiary facts that would warrant an inference that the standard has, in fact, been met. Reversed.