I Have Never Seen Your Client. And I'm Not a Florist.

Forest Law Memorial-Park Assoc. v. Superior Court, No. E076549 (D4d2 Oct. 7, 2021).

This one is kind of interesting. It’s a PI case where the main issue is respondeat superior. An Employee of the defendant, a Cemetery, hit someone while driving. The factual question is whether the Employee was merely coming from or going to work―which is generally not viewed as within the scope of employment―or whether he was driving as part of required duties―which is.

On summary judgment, the Employee put in a declaration that said he was basically the front desk receptionist―he never drove anywhere from work. Plaintiff, however, put in a declaration from a lady who said she was Florist, and who said she often saw Employee come by at her shop to pick up flowers for the Cemetery. The Court found that created enough of a fact dispute to deny SJ.

But then the Erstwhile Florist was deposed. She testified she had never seen Plaintiff and didn’t know who he was. She never say any of Cemetery's employees. Indeed, her only connection to the Cemetery is that she had a granddaughter who was buried there. Indeed, EF was not even a florist. She was the customer service manager at a grocery store that had a flower department, where she once picked up the phone when Plaintiff’s lawyer called, because the florist was on her break. EF said that she only signed the declaration because Plaintiff's attorney harassed her by calling twenty-some times, so she signed it to get him to leave her alone. She testified that she signed the document without understanding that it was going to be used in court or the significance of signing a document under penalty of perjury. 

The Cemetery renewed its SJ motion, this time using EF's depo transcript and objecting to the recanted declaration. The trial court again denied SJ. After specific supplemental briefing on this issue, it found that, because the four corners of the declaration failed to show any basis for exclusion, it was admissible. And because the court was not allowed to make credibility determinations on summary judgment, it had to credit EF’s since-disavowed declaration. And that gave rise to a disputed issue of material fact. Cemetery took a writ.

The Court of Appeal grants a writ. EF’s declaration was admissible evidence only if it was made within her personal knowledge, which may be shown by any otherwise admissible evidence, “including [her] own testimony.” Evid. Code § 702(a), (b). And under Evidence Code § 403(a)(2), the proponent of evidence bears the burden to come forward with facts sufficient to sustain a finding that the witness had personal knowledge concerning the subject of testimony. The converse of that rule is that, if the foundational evidence is such that no reasonable juror could or would find the witness has personal knowledge, the testimony is inadmissible under § 702.

Here, the trial court erred in limiting its inquiry to the face of the declaration. As noted, “any admissible evidence” can be considered. Here, that included the depo testimony recanting the declaration and describing shady the circumstances of its creation. And when that is taken into account, the Court finds that no jury could reasonably have found that EF had personal knowledge of the facts in her declaration. The Court notes that there were all kinds of circumstances that could merit a different result, like some corroboration, or the lack of an affirmative account of the circumstances of signing, or some basis to believe EF’s memory was better when she singed than when she was deposed. But since none of that was present here, Plaintiff failed to meet its burden under §§ 403 and 702, even if that is a pretty low bar to meet.

The court also address two ancillary issues. First, Plaintiff argues that the declaration was also admissible as a prior inconsistent statement under 
§ 1235, an exception to the hearsay rule that permits the introduction of such statements as substantive evidence. But § 1235 applies only at trial. Inconsistent statements of hearsay declarations are addressed under § 1202, which permits use for impeachment, but not matters of substance. And in any event, even if the declaration were not hearsay, that wouldn’t make it admissible because it still failed the personal knowledge requirement. (FWIW, the usual requirement of personal knowledge is dispensed with in the case of a party’s admission, Levy-Zentner Co. v. S. Pac. Transportation Co., 74 Cal. App. 3d 762, 787 (1977), but that doesn’t extend to prior insonsistent statements.) 

Finally, the court addresses and rejects Cemetery’s alternative argument that the declaration should have been excluded under the D’Amico rule, which holds that a declaration can’t contradict other sworn discovery responses to avoid summary judgment. The Court finds two reasons D’Amico doesn't apply. 

First, the Court says that D’Amico is premised on the value of party admissions and thus applies only to inconsistencies between parties' declarations and their discovery responses. Inconsistencies regarding third party witnesses like EF don’t fall within the rule. The Court notes in a footnote, however, that two published Court of Appeal cases apply D’Amico to third party witness statements. It disagrees with these cases. And it also explains that the uniform practice of federal courts applying the similar “sham affidavit” rule also applies to third party declarations. But, the Court notes, the federal rule requires the court to make factual findings about sham-ness, which are effectively credibility determinations, while in California, the non-moving party can avoid D’Amico by coming forward with an explanation of inconsistency that could be credited by a reasonable trier of fact.

The Court also finds that D’Amico applies only when the inconsistent deposition testimony happens before the declaration. When the deposition happens afterwards, the parties have a chance to cross examine the witness about the declaration. Sometimes, like here, they can show that the declaration was made without foundational facts being true. But there may be other times where, despite inconsistency, both the depo and the declaration could be admissible and the resolution of the conflict left up to the trier of fact.

Writ granted.