I hope that this opinion gets depublished.
There's an automobile accident and someone's injured, and the injured party sues the other driver and his employer (Forest Lawn). The question is whether the defendant driver was driving for his employer at the time of the accident; if he was, the employer might be liable, if not, no liability. The employer moves for summary judgment with declarations that the driver was simply driving to work in his own car and had no job responsibilities that involved driving; if that's true, no vicarious liability.
Plaintiff responds with a declaration of a third party witness that says that's not true; that she saw the driver pick up flowers on multiple occasions for Forest Lawn. As described by the Court of Appeal, here's what the declaration says:
"Scott stated that she was an employee of “Jensen’s Florists” in Palm Springs, where she had worked for many years. She stated that between February and March 2017, she witnessed “an employee of Forest Lawn, named Joshua Brown[,] that came into Jensen’s Florists on numerous occasions with his car to pick up flowers on behalf of Forest Lawn.” She stated that this was done during work hours. She signed under penalty of perjury."
On that basis, the trial court denies summary judgment. Disputed issue; genuine issue of material fact.
Right? Any problem with that?
Nope. Not with me, anyway.
Are you at all concerned that the declaration of the witness isn't admissible? Does it show personal knowledge of the witness?
Of course it does. She says she worked at the florist, had worked there for many years, and personally saw the driver (Joshua Brown) pick up flowers on behalf of Forest Lawn. You can't get more basic and fundamental than that. I've filed dozens of declarations over the years that say basically the same thing. So, I suspect, have you.
But the Court of Appeal holds that the declaration is flatly inadmissible, on the theory that it lacks foundation. Here's Justice Raphael's reasoning:
"The stated basis for this statement was only that Scott was an “employee of Jensen’s Florists”; the declaration provided no other reason to establish how she might know the information to which she was testifying. In many contexts, a witness’s assertion that she witnessed something readily provides adequate foundation for her testimony. Here, however, for Scott to have personal knowledge of the matter she asserted, she would have to be in a position at a florist to know and remember for three-and-a-half years (a) the name of a person picking up flowers, (b) the company that person worked for, and (c) that the person arrived in a car during work hours. Were Scott testifying at trial, the bare assertion in her declaration would likely be inadequate to overcome an objection for lack of foundation; a court would demand more testimony from a live witness as to how she knew and recalled the information."
These are all good points. But they're the stuff of impeachment, not foundation. Sure, it's three and a half years earlier, and one could reasonably wonder how she'd remember a guy's name for so long. But that's not impossible. She says she remembers. That's enough. Similarly, yeah, I do wonder how she knew (and remembered) the customer's name or the company he worked for. But in a declaration, I'm not required to spell out in exhaustive detail every background circumstance of the events to which I'm testifying. The witness said that she personally saw the guy and had personal knowledge of his name and his company. You can cross-examine the witness to try to show that's not true. But to say that the declaration lacks foundation just seems way too strong. If I say "I saw James Kirk commit the murder because I was there and I saw it and it was him," that's fine. I don't have to spell out how I'm sure that it was James Kirk. I said it was him. I said I had personal knowledge of that. At the evidentiary stage, I think that's sufficient.
The point about "how do you know it was work hours" seems even less persuasive. How does the witness know that it was during work hours; well, you can ask her that if you want, but here's likely how: because everyone pretty much knows what that means. It means he picked up the flowers like between 9 to 5. Can you ask her to be more specific? Sure. Can you ask her if she remembers the exact time? Yeah, if you want. Can you says: "Well, sure, you think those are work hours, but do you know whether or not Joshua Brown is assigned to work the night shift?" Sure, give it a shot. But to say that the evidence is flatly inadmissible again seems to require way more rock-solid foundation and demonstrable truth than we usually -- or rightly -- require.
Now, in this particular case, I totally understand why Justice Raphael wants to come out this way. In the present lawsuit, after the trial court denies summary judgment based on this declaration, defendant deposed this witness, at which point she totally recanted pretty much every single thing she said in the declaration, admitting that she has zero idea whether anything she said was true and essentially saying that she signed a declaration without reading or even understanding it because plaintiff's lawyer was badgering her and she just wanted to get him out of her face (and workplace).
Okay. That's super good impeachment stuff. I'm pretty confident that if that's the only evidence on the liability side, a jury will find for the defendant. I certainly would. So it seems unjust to waste money on the case and let it go to trial. Just bounce it now. (The Court of Appeal also seems deeply concerned about the attorney's conduct, saying in a footnote: "We, too, are concerned by the behavior Scott described. For present purposes, however, we need not decide whether [attorney] Basseri in fact violated the Rules of Professional Conduct.")
But while perhaps equitable, that's not what we do. If some evidence says X and some says Y, we let a jury decide. We don't decide for 'em. Even if we're super convinced that X is wrong and Y is right.
One final doctrinal point. If you really want to reach the (equitable) result embraced by the Court of Appeal, I personally think the D’Amico route would be the preferable way to go. (Or at least would have much fewer untoward consequences than the Court of Appeal's "let's start having trial courts refuse to admit a ton of sworn declarations because we're super restrictive on what possibly counts as 'personal knowledge'" principle.) The California Supreme Court said in D’Amico that you can't create a genuine issue of material fact by submitting a declaration that contracts your declaration. That rule makes eminent sense; we have the same principle on the federal side as well. It seems to me that if you applied that rule here, you'd have a possible basis for rejecting the declaration. Admittedly, usually, the way these things go is that you have a deposition first and then a subsequent declaration -- which we reject -- that contradicts that sworn testimony, whereas here, the deposition came second. But I'm not sure the order matters. The principle is the same.
But today's opinion says that this rule only applies to declarations by a party, not a third-party witness. The federal courts, though, go the other way, as have several other Court of Appeal opinions (as Justice Raphael admits). But the panel here says that it "disagrees" with those prior opinions, and instead says that the California Supreme Court's D’Amico rule "in our view, [] applies to deposition and declaration statements by only a party to a case" and "does not apply to third-party witnesses like Scott." I get the reasoning there. But creating that appellate split seems yet another downside of an opinion that likely will create a ton of confusion, litigation and inefficiency as lower courts struggle to apply the restrictive "you gotta really, really, establish every detail of personal knowledge in your declarations" principal of today's decision.
Am I okay with the ultimate result? Sure. Ramirez definitely deserves to lose. But as they say, and as a reminder:
Bad cases make bad law.
So keep the result but depublish the case.
