Turley v. Familian Corp., No. A149752 (D1d2 Dec. 22, 2017)
Under D’Amico v. Board of Medical Examiners, 11 Cal. 3d 1 (1974), you can’t avoid summary judgment by submitting a declaration from a witness that contradicts his or her deposition testimony. But for the rule to apply, it has to really contradict. There can’t just be ambiguities from which inferences of inconsistency could be drawn.
Which was the trial court’s mistake here. The testimony wasn’t really inconsistent with the declaration. In the course of saying it was, the trial court’s order mischaracterized the depo pretty badly. And in any event, none of it mattered because even the depo testimony, standing alone, was enough to crated a fact dispute such that summary judgment should have been denied.
Reversed.
No comments:
Post a Comment