Long Live D'Amico?

Ahn v. Kumho Tire U.S.A., Inc., No. E054322 (D4d2 Jan 22, 2014)

The court of appeal reverses a trial court’s grant of summary judgment in an oral contract case where the plaintiffs’ interrogatory responses were contradicted by a declaration they submitted in opposition to summary judgment. The court ultimately holds that the so-called D’Amico rule—which says a plaintiff cannot avoid summary judgment by contradicting his deposition in a declaration—is inapplicable. In doing so, it sets a new standard regarding the extent of the evidence the non-moving needs to come forward with to establish an explanation for the discrepancy, and thus avoid the rule.