Stanford Law School - Robert Crown Law Library

Filed 7/19/04

IN THE SUPREME COURT OF CALIFORNIA

DHEERAJ KULSHRESTHA,
Plaintiff and Appellant,
S115654
v.
Ct.App. 3 No. C041513
FIRST UNION COMMERCIAL
CORPORATION, et al.,
Yolo
County
Defendants and Respondents. )
Super. Ct. No. CIV001803

Under limited statutory circumstances, written out-of-court statements,
though hearsay, may serve as competent evidence of the facts set forth therein, and
may be used in lieu of other competent evidence, such as live testimony given
under oath in court. “[D]eclarations,” for instance, are allowed to support and
oppose motions for summary judgment. (Code Civ. Proc., § 437c, subd. (b)(1)
& (2).)1 Critical here is section 2015.5, which defines a “declaration” as a writing
that is signed, dated, and certified as true under penalty of perjury. In addition,
section 2015.5 specifies that a declaration must either reveal a “place of
execution” within California, or recite that it is made “under the laws of the State
of California.”

1
All further statutory references are to the Code of Civil Procedure except as
otherwise stated.
1

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In this suit against a firm for which he briefly worked, the plaintiff sought
to prevent summary judgment by filing a declaration under penalty of perjury that
showed a “place of execution” in another state. (§ 2015.5.) Moreover, the
document did not reference California’s “laws.” (Ibid.) The evidence was
excluded, summary judgment was granted, and dismissal was affirmed on appeal.
We now decide if declarations signed under penalty of perjury outside this
state satisfy section 2015.5, and are admissible in summary judgment and other
authorized proceedings, even though the contents are not certified as true “under
the laws of the State of California.” The answer to this narrow question is no.
Section 2015.5 seeks to enhance the reliability of all declarations used as
hearsay evidence by disclosing the sanction for dishonesty. Thus, the statute
requires some acknowledgement on the face of the declaration that perjured
statements might trigger prosecution under California law. The Legislature has
determined that such knowledge can be inferred from the “place of execution”
where the document shows it was signed here. (§ 2015.5.) All other declarations,
including those signed in other states, must invoke “the laws of the State of
California.” (Ibid.) Indeed, when lawmakers added this phrase to section 2015.5
in 1980, it was deemed necessary to alert out-of-state declarants that California’s
perjury laws — which were made extraterritorial at the same time — might apply.
(See Pen. Code, §§ 27, subd. (b), 118, subd. (a), 777b.) The lower courts correctly
found the present declaration flawed in this regard. We will affirm the judgment.
FACTS
In October 2000, Dheeraj Kulshrestha (petitioner) filed a complaint for
damages in superior court against First Union Commercial Corporation and its
subsidiary, The Money Store (defendants). The complaint alleged that defendants
induced petitioner to move from Ohio to California by making false promises
regarding a managerial position he accepted in November 1999. Petitioner
2

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claimed he would not have taken the job if he had known the representations were
untrue. The complaint further averred that because petitioner is “a male Indian of
Hindu religion,” defendants inadequately investigated a sexual discrimination
charge that a female subordinate falsely made against petitioner, and wrongly
terminated petitioner based on the same false charge in January 2000. The
complaint contained four counts: fraud in the inducement, violation of Labor
Code section 970 (barring false representations in job relocation offers), negligent
misrepresentation, and discrimination based on race, sex, and/or religion.
In July 2001, after answering the complaint and conducting extensive
discovery, defendants moved for summary judgment. The motion emphasized that
no evidence supported certain elements of each cause of action, including
fraudulent intent as to both fraud claims, material misstatements of fact as to the
negligent misrepresentation claim, and either discriminatory intent or illegal
termination as to the employment discrimination claim. In addition, evidence
supporting the motion showed petitioner received the same job that he was
offered, and that he was fired because he retaliated against the employee who
brought the sexual discrimination charge.
Two weeks later, in August 2001, petitioner opposed the summary
judgment motion. He mainly relied on his own declaration to describe relevant
events. The last paragraph, which appeared immediately above petitioner’s
handwritten signature, said: “I declare under penalty of perjury that the above is
true and correct, executed this 8th day of August 2001 at Columbus, Ohio.”
Defendants replied, in part, by challenging petitioner’s declaration. They
claimed that because the declaration was not made “under the laws of the State of
California,” it violated section 2015.5 and could not be used to defeat summary
judgment. According to the defense, the defect suggested artful drafting and a fear
of California’s perjury laws.
3

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A hearing on the summary judgment motion and related matters occurred
on August 29, 2001. The matter was then submitted. Several weeks later, on
November 5, 2001, an order issued. First, the trial court sustained the objection to
petitioner’s declaration under section 2015.5. Second, the court granted summary
judgment in defendants’ favor, finding no admissible or substantial evidence to
support the contested elements of each cause of action.
On November 14, 2001, petitioner sought to vacate summary judgment
under section 473, subdivision (b). Petitioner did not dispute that his declaration
was not made “under the laws of the State of California.” However, petitioner
maintained that through mistake or other excusable circumstance, counsel
overlooked the omission, and forgot to offer to amend the declaration at the
summary judgment hearing. Claiming triable issues existed on at least the two
fraud counts, petitioner sought to file an amended declaration, to vacate the order
granting summary judgment, and to obtain a trial on the merits.
In opposition, defendants maintained that petitioner and his counsel had no
excuse for submitting the declaration in its initial form, and for waiting so long to
offer to insert the missing statutory phrase. Defendants further claimed, among
other things, that there was no evidence of fraudulent intent even assuming the
trial court reconsidered its summary judgment ruling in light of petitioner’s
amended declaration. Finding no excusable neglect or other basis for relief, the
trial court denied petitioner’s motion under section 473, subdivision (b).
Judgment was entered for the defense on April 29, 2002.
On appeal, petitioner challenged dismissal of his action insofar as it
stemmed from the trial court’s related decisions to strike his declaration and to
grant summary judgment. Mounting a more vigorous defense of his declaration
than before, petitioner argued that it “substantially complied” with section 2015.5,
and that the trial court erred in not considering it in opposition to summary
4

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judgment. The Court of Appeal disagreed and affirmed the judgment. As noted,
we granted review to decide whether declarations signed outside California must
state they were made “under the laws of the State of California” in order to satisfy
section 2015.5 and to be used as evidence.
DISCUSSION
In judicial proceedings, the trustworthiness of the evidence and the
reliability of the factfinding process depend upon the notion that persons who
possess relevant information appear in court and undergo cross-examination. (See
Evid. Code, § 711 [statutory right to confront witnesses].) Such live testimony is
conditioned, among other things, on the witness’s capacity to understand the duty
to tell the truth (id., § 701, subd. (a)(2)), and on his promise under oath or penalty
of perjury to testify truthfully. (Id., § 710; see id., § 165 [broadly defining oath];
Code Civ. Proc., § 2094, subds. (a) & (b) [describing form of oath]; Pen. Code,
§§ 118-129 [punishing perjury].) These rules convey the need for honesty and the
sanction for false testimony. They also enhance credibility determinations. (See
California v. Green (1970) 399 U.S. 149, 158.)
Any statement not made by a witness testifying in court before the fact
finder constitutes hearsay evidence when offered for its truth. (Evid. Code,
§ 1200, subd. (a).) Largely because the declarant is absent and unavailable for
cross-examination under oath, hearsay evidence is less reliable than live
testimony. (1 Jefferson, Cal. Evidence Benchbook (Cont.Ed.Bar 3d ed. 2004)
Hearsay and Nonhearsay Evidence, § 1.4, p. 5; see Crawford v. Washington
(2004) 541 U.S. __, __ [158 L.Ed.2d 177, 192-196] [limiting use in criminal trials
of affidavits and other “testimonial” hearsay not subject to cross-examination].)
Hearsay evidence is generally incompetent and inadmissible without statutory or
decisional authorization, or absent stipulation or waiver by the parties. (See Evid.
5

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Code, § 1200, subd. (b); In re Cindy L. (1997) 17 Cal.4th 15, 26-27; Windigo Mills
v. Unemployment Ins. Appeals Bd. (1979) 92 Cal.App.3d 586, 597.)
Nevertheless, in limited kinds of judicial proceedings, hearsay evidence —
especially written statements — may serve as the sole or primary evidence of
relevant facts. Such is the case with “motion[s]” (§ 2009), including motions for
summary judgment. (See § 437c, subds. (a) & (c) [summary judgment determines
whether action has merit as matter of law and whether trial is necessary]; Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 [same].)
In particular, the summary judgment statute authorizes “affidavits” and
“declarations” to support and oppose such motions. (§ 437c, subd. (b)(1) & (2);
see 1 Jefferson, Cal. Evidence Benchbook, supra, Miscellaneous Hearsay
Exceptions, § 18.23, p. 255 [summary judgment statute creates hearsay
exception].) The same statute also places certain limits on the admissibility of
affidavits and declarations. (§ 437c, subd. (d) [contents must be based on personal
knowledge and be otherwise admissible]; see City of Santa Cruz v. Municipal
Court (1989) 49 Cal.3d 74, 88.)
Other provisions regulating the content of affidavits and declarations
appear elsewhere in the Code of Civil Procedure. Since 1872, an affidavit has
been defined as “a written declaration under oath” (§ 2003), taken before “any
officer authorized to administer oaths.” (§ 2012; see §§ 2013-2014, 2093
[officers]; 6 Witkin, Cal. Procedure (4th ed. 1997) Provisional Remedies, § 2,
p. 25.) As with live testimony, the oath-taking procedures for affidavits help
prevent perjury. (Clifton v. Superior Court (1970) 7 Cal.App.3d 245, 254.)
In 1957, the Legislature enacted section 2015.5, authorizing declarations
under penalty of perjury. (Stats. 1957, ch. 1612, § 1, p. 2959.) Lawmakers
expressed concern that the oath-and-affidavit procedure was both cumbersome and
widely ignored. (Sen. Judiciary Com. Rep. (1957) 1 Appen. to Sen. J. (1957 Reg.
6

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Sess.) pp. 175-176.) Declarations serve as a more streamlined means of ensuring
that the witness understands “the grave responsibility he has assumed with respect
to the truth[ ].” (People v. Salazar (1968) 266 Cal.App.2d 113, 115.)
Thus, with certain exceptions not relevant here, and subject to the
conditions discussed below, section 2015.5 allows use of “unsworn” declarations
made under penalty of perjury whenever state law “require[s] or permit[s]” facts to
be evidenced by affidavits or other “sworn” statements. A valid declaration has
the same “force and effect” as an affidavit administered under oath. (Ibid.)2

2
Section 2015.5 states: “Whenever, under any law of this state or under any
rule, regulation, order or requirement made pursuant to the law of this state, any
matter is required or permitted to be supported, evidenced, established, or proved
by the sworn statement, declaration, verification, certificate, oath, or affidavit, in
writing of the person making the same (other than a deposition, or an oath of
office, or an oath required to be taken before a specified official other than a
notary public), such matter may with like force and effect be supported,
evidenced, established or proved by the unsworn statement, declaration,
verification, or certificate, in writing of such person which recites that it is
certified or declared by him or her to be true under penalty of perjury, is
subscribed by him or her, and (1), if executed within this state, states the date and
place of execution, or (2), if executed at any place, within or without this state,
states the date of execution and that it is so certified or declared under the laws of
the State of California. The certification or declaration may be in substantially
the following form:

“(a) If executed within this state: [¶] ‘I certify (or declare) under penalty
of perjury that the foregoing is true and correct’:
____________________________ ___________________________

(Date and Place)
(Signature)
“(b) If executed at any place, within or without this state: [¶] ‘I certify (or
declare) under penalty of perjury under the laws of the State of California that the
foregoing is true and correct’:
____________________________ ___________________________
(Date)
(Signature).”
(Italics and boldface added.)
7

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Against this backdrop, petitioner argues here, as below, that his declaration
“substantially complies” with section 2015.5 despite its failure to invoke “the laws
of the State of California.” (See Stasher v. Harger-Haldeman (1962) 58 Cal.2d
23, 29 [document substantially complies with statute where it meets all “essential”
statutory aims notwithstanding “mere technical imperfections of form”].) A
declaration is competent hearsay under this view even though it was signed in
another state by someone who showed no awareness that his statements might
violate California’s perjury laws or trigger prosecution here.
The plain statutory language defeats this claim. Section 2015.5 first
provides that an unsworn declaration “executed . . . without this state” is
competent and admissible to the same extent as an affidavit or other sworn
statement if the unsworn declaration includes four elements: (1) a certification or
declaration that it is “true under penalty of perjury,” (2) the “subscri[ption]” of the
declarant, (3) a statement of the “date of execution,” and (4) a statement that such
certification or declaration occurs “under the laws of the State of California.”
(Italics added.) Nothing suggests that the fourth item is pointless or optional. To
the contrary, courts may not excise words from statutes. (Delaney v. Superior
Court (1990) 50 Cal.3d 785, 798.) We assume each term has meaning and
appears for a reason. (Id. at pp. 798-799.) Far from being surplusage, the
statutory phrase that petitioner ignored discloses California’s interest in preventing
and punishing perjury even as to documents signed outside the state. It seems
clear that out-of-state declarations offend section 2015.5, and are not deemed
sufficiently reliable for purposes of that statute, unless they follow its literal terms.
We find further support in section 2015.5’s description of declarations
“executed within this state.” (Italics added.) Under the foregoing rules of
construction, in-state declarations must satisfy the same substantive requirements
as their out-of-state counterparts, including an express facial reference to
8

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California’s perjury law. The latter requirement is met in one of two alternative
ways: (1) by stating the “place of execution” in California, or (2) by stating that
the certification or declaration under penalty of perjury occurs “under the laws of
the State of California.” (Ibid.) Thus, where the face of the declaration shows
execution occurred in California, the statute presumes the declarant’s knowledge
that the act triggers California law — i.e., that such understanding is adequately
expressed by naming the “place of execution” within this state. (Ibid.) Otherwise,
the Legislature sought explicit reference to California’s “laws” even from persons
who signed their declarations here. (Ibid.) It follows that where a California site
cannot be named because the declaration was signed elsewhere, the declarant is
deemed to know that California law applies only if he explicitly invokes such law.
Finally, the language of section 2015.5 indicates that unsworn declarations
used in lieu of affidavits or other sworn statements may follow the format
appearing in exemplars (a) and (b). Exemplar (a), which is limited to declarations
executed “within” California, shows that the document is signed, dated, and made
under penalty of perjury at a particular place. Exemplar (b) more broadly covers
declarations signed “within or without” this state, including those not showing a
place of execution in California and those showing they were signed in other
states. Consistent with the view that out-of-state declarations cannot forgo such
language, exemplar (b) recites, in the line above the signature and date, that the
statements are certified or declared true under penalty of perjury “under the laws
of the State of California.” (§ 2015.5.) As to each sample declaration, section
2015.5 allows the prescribed contents to appear in “substantially” the same “form”
on the printed page. However, it seems no item can be omitted altogether.
According to petitioner, such a construction conflicts with the relaxed
manner in which section 2015.5 has been judicially construed. He suggests that
under the approach taken by the Courts of Appeal, the flaw in his declaration is de
9

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minimis, and does not threaten its reliability or admissibility as evidence on
summary judgment. He is wrong.
Based on the plain meaning of the statute, and consistent with the
legislative history discussed below, the courts have made clear that a declaration is
defective under section 2015.5 absent an express facial link to California or its
perjury laws.3 At least one case has criticized a document prepared in another
state because it was not made under California law as required by section 2015.5.4
No state court decision approves a declaration under circumstances similar to
those present here. Contrary to what petitioner implies, courts do not find
compliance with section 2015.5 to be both substantial and sufficient unless all
statutory conditions appear on the face of the declaration in some form.5

3
California Assn. of Highway Patrolmen v. Department of Personnel Admin.
(1986) 185 Cal.App.3d 352, 359, fn. 4 (declaration lacked place and date of
execution); Witchell v. De Korne (1986) 179 Cal.App.3d 965, 974-975
(declaration’s defects included no place of execution); Baron v. Mare (1975) 47
Cal.App.3d 304, 308 & fn. 2 (declaration identified venue of action, but failed to
state place of execution, among other defects); People v. United Bonding Ins. Co.
(1969) 272 Cal.App.2d 441, 443, 446 (declaration lacked place and date of
execution); People v. United Bonding Ins. Co. (1966) 240 Cal.App.2d 895, 896,
fn. 2 (declaration lacked place and date of execution); see Stockinger v. Feather
River Community College (2003) 111 Cal.App.4th 1014, 1026 (declaration lacked
signature); Dodge v. Free (1973) 32 Cal.App.3d 436, 441-444 (declaration lacked
date and signature); Palm Springs Alpine Estates, Inc. v. Superior Court (1967)
255 Cal.App.2d 883, 888 (declaration not made “under penalty of perjury”);
Truslow v. Woodruff (1967) 252 Cal.App.2d 158, 163-164 (same).
4
Myzer v. Emark Corp. (1996) 45 Cal.App.4th 884, 890 & fn. 4 (although
defect was cured by stipulation, document was improperly made “under the laws
of the State of Illinois,” not under California law as required by § 2015.5).
5
People v. Pacific Land Research Co. (1977) 20 Cal.3d 10, 21, fn. 11 (place
of execution established where declarant’s address appeared near signature);
People v. Pierce (1967) 66 Cal.2d 53, 58-59 (§ 2015.5 satisfied even though
declaration differed in format from exemplar); Hirschman v. Saxon (1966) 246
Cal.App.2d 589, 593 (same).
10

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Petitioner ignores treatises warning counsel to follow these strict rules.6
Petitioner seeks to excuse the variation between his declaration and the
statutory language in light of the legislative history. He contends that section
2015.5 is based on an analogous federal statute, that declarations are admissible in
federal court under circumstances similar to those present here, and that we should
adopt the same approach under state law. Petitioner’s historical analysis is
incomplete. To confirm our view of the statute, we describe the circumstances
under which section 2015.5 became law.7
Before 1980, section 2015.5 required declarations to be signed and dated, to
be made under penalty of perjury, and to show a place of execution either in

6
Commentators stress that declarations must “conform strictly” to section
2015.5 (1 Cal. Civil Procedure Before Trial (Cont.Ed.Bar 3d ed. 2003) § 9.28,
p. 277), and must use all “essential” statutory language. (Weil & Brown, Cal.
Practice Guide: Civil Procedure Before Trial (The Rutter Group 2003) ¶ 9:48,
p. 9(1)-24.) These treatises provide sample forms directing declarations to be
made “ ‘under the laws of the State of California’ ” where, as here, execution in
California is not shown. (2 Cal. Civil Procedure Before Trial, supra, § 44.20,
p. 1486; Weil & Brown, supra, ¶ 9:48, p. 9(1)-24.) Also, the Judicial Council of
California has approved an identical form bearing the language that petitioner
failed to use. (2 Cal. Judicial Council Forms (2004) Declaration, Form MC-030.)
7
At oral argument, defense counsel insisted that we need not, and should
not, consult section 2015.5’s history, because the statute is unambiguous on its
face. However, as our cases make clear, courts may always test their construction
of disputed statutory language against extrinsic aids bearing on the drafters’ intent.
(Olmstead v. Arthur J. Gallagher & Co. (2004) 32 Cal.4th 804, 813; In re
Eddie M. (2003) 31 Cal.4th 480, 497.) This principle assumes greater relevance
where, as here, the parties accept the statute’s literal terms but strongly dispute
whether they are directory or mandatory. In particular, petitioner claims that even
though section 2015.5 plainly seems to compel out-of-state declarants to reference
California’s perjury laws, his failure to do so does not affect the validity of his
declaration or prevent a finding of substantial statutory compliance here. This
argument essentially requires us to decide whether the Legislature meant each and
every word in section 2015.5 — a conclusion the history leads us to reach.

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California or in “any other state permitting declarations under penalty of perjury.”
(Former § 2015.5, as amended by Stats. 1975, ch. 666, § 1, p. 1456, operative Jan.
1, 1977.) At that time, Penal Code section 118 defined perjury to include certain
false statements “declare[d]” true “under penalty of perjury.” (Pen. Code, former
§ 118, as amended by Stats. 1957, ch. 1612, § 2, p. 2959.) However, no pre-1981
law explicitly addressed whether the perjury statute covered such statements if
they appeared in declarations subscribed outside of California.
In 1980, Senator Sieroty introduced Senate Bill No. 1615 (1979-1980 Reg.
Sess.), sponsored by the State Bar of California. The bill arose over concern that
the bench and bar distrusted unsworn declarations signed outside the state because
California’s perjury law lacked clear extraterritorial effect. Lawmakers thought
that persons signing statements under the perjury laws of other states had less
reason to tell the truth. The bill sought to end these “restrictions,” and relieve
counsel of the greater cost and burden of obtaining sworn affidavits from
witnesses outside the state. (Sen. Com. on Judiciary, Analysis of Sen. Bill No.
1615 (1979-1980 Reg. Sess.) as introduced Feb. 28, 1980, p. 2; accord, Assem.
Com. on Criminal Justice, Analysis of Sen. Bill No. 1615 (1979-1980 Reg. Sess.)
as introduced Feb. 28, 1980, p. 2.)
Senate Bill No. 1615 tackled these concerns in two ways. First, the
Legislature clarified its intent to give the perjury laws extraterritorial effect under
certain circumstances. Hence, the definition of perjury in Penal Code section 118
was expanded to include statements and declarations “made or subscribed . . .
without” California for use in California proceedings. (Id., subd. (a); see Stats.
1980, ch. 889, § 3, p. 2790.)8 In a related vein, Penal Code section 27, which

8
Penal Code section 118 states: “(a) Every person who, having taken an
oath that he or she will testify, declare, depose, or certify truly before any

(footnote continued on next page)
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concerns criminal jurisdiction, made perjury punishable “when committed outside
of California to the extent provided in Section 118.” (Id., § 27, subd. (b), added by
Stats. 1980, ch. 889, § 2, p. 2789.) Likewise, section 777b was added to the Penal
Code. It concerns proper venue for actions involving perjury “committed outside
of the State of California.” (Ibid., added by Stats. 1980, ch. 889, § 4, p. 2790.)
Second, Senate Bill No. 1615 amended section 2015.5, and produced the
statute in its current form. As noted, it permits use of declarations signed outside
California if, among other things, the declarant certifies the truth of his statements
both “under penalty of perjury” and “under the laws of the State of California.”
(Id., as amended by Stats. 1980, ch. 889, § 1, p. 2789, operative July 1, 1981.)
The amendment also deleted all reference to the perjury laws of other states.
The statutory phrase at issue here received much attention during the
passage of Senate Bill No. 1615. As first introduced, the amendment to section
2015.5 was virtually identical in both substance and form to the federal declaration
statute, 28 United States Code section 1746. This similarity was intentional.

(footnote continued from previous page)

competent tribunal, officer, or person, in any of the cases in which the oath may by
law of the State of California be administered, willfully and contrary to the oath,
states as true any material matter which he or she knows to be false, and every
person who testifies, declares, deposes, or certifies under penalty of perjury in any
of the cases in which the testimony, declarations, depositions, or certification is
permitted by law of the State of California, under penalty of perjury and willfully
states as true any material matter which he or she knows to be false, is guilty of
perjury. [¶] This subdivision is applicable whether the statement, or the
testimony, declaration, deposition, or certification is made or subscribed within or
without the State of California. [¶] (b) No person shall be convicted of perjury
where proof of falsity rests solely upon contradiction by testimony of a single
person other than the defendant. Proof of falsity may be established by direct or
indirect evidence.” The italicized language was added in 1980. (Stats. 1980,
ch. 889, § 3, p. 2790.)
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Citing the federal statute, which allows use of unsworn declarations in federal
court “regardless of whether [they were] executed within or outside the United
States,” state lawmakers emphasized their intent to admit unsworn declarations in
state court even if they were signed outside the state. (Sen. Com. on Judiciary,
Analysis of Sen. Bill No. 1615 (1979-1980 Reg. Sess.) as introduced Feb. 28,
1980, p. 3; Assem. Com. on Criminal Justice, Analysis of Sen. Bill No. 1615
(1979-1980 Reg. Sess.) as introduced Feb. 28, 1980, p. 2.)9
Like the federal statute, amended section 2015.5, as originally proposed,
first stated that an unsworn declaration would be competent and admissible to the

9
The federal statute was enacted in 1976, about four years before the
relevant changes to section 2015.5 were made. (See Act of Oct. 18, 1976, Pub.L.
No. 94-550, § 1(a), 90 Stat. 2534.) Now, as then, 28 United States Code section
1746 reads as follows: “Wherever, under any law of the United States or under
any rule, regulation, order, or requirement made pursuant to law, any matter is
required or permitted to be supported, evidenced, established, or proved by the
sworn declaration, verification, certificate, statement, oath, or affidavit, in writing
of the person making the same (other than a deposition, or an oath of office, or an
oath required to be taken before a specified official other than a notary public),
such matter may, with like force and effect, be supported, evidenced, established,
or proved by the unsworn declaration, certificate, verification, or statement, in
writing of such person which is subscribed by him, as true under penalty of
perjury, and dated, in substantially the following form:

“(1) If executed without the United States: ‘I declare (or certify, verify, or
state) under penalty of perjury under the laws of the United States of America
that the foregoing is true and correct. Executed on (date).
(Signature)’.

“(2) If executed within the United States, its territories, possessions, or
commonwealths: ‘I declare (or certify, verify, or state) under penalty of perjury
that the foregoing is true and correct. Executed on (date).
(Signature)’.”
(Italics and boldface added.)

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same extent as an affidavit or other sworn statement if the unsworn declaration
included three elements: (1) a certification or declaration that it was “true under
penalty of perjury,” (2) a statement of the “date of execution,” and (3) the
“subscri[ption]” of the declarant. (Sen. Bill No. 1615 (1979-1980 Reg. Sess.) as
introduced Feb. 28, 1980.)10 Then, in a manner also parallel to the federal law,
the original proposed amendment of section 2015.5 separately indicated that the
unsworn declaration “may be in substantially the following form,” and set forth
exemplars (a) (for a declaration executed “within this state”) and (b) (for a

10
As first introduced, the amendment to section 2015.5 proposed in Senate
Bill No. 1615, read as follows: “Whenever, under any law of this state or under
any rule, regulation, order or requirement made pursuant to the law of this state,
any matter is required or permitted to be supported, evidenced, established, or
proved by the sworn statement, declaration, verification, certificate, oath, or
affidavit, in writing of the person making the same (other than a deposition, or an
oath of office, or an oath required to be taken before a specified official other than
a notary public), such matter may with like force and effect be supported,
evidenced, established or proved by the unsworn statement, declaration,
verification, or certificate, in writing of such person which recites that it is
certified or declared by him or her to be true under penalty of perjury, states the
date of execution and is subscribed by him or her. The certification or declaration
may be in substantially the following form:

“(a) If executed within this state: [¶] ‘I certify (or declare) under penalty
of perjury that the foregoing is true and correct’:
____________________________ ___________________________
(Date)
(Signature)
“(b) If executed at any place, within or without this state: [¶] ‘I certify (or
declare) under penalty of perjury under the laws of the State of California that the
foregoing is true and correct’:
____________________________ ___________________________
(Date)
(Signature).”
(Sen. Bill No. 1615 (1979-1980 Reg. Sess.) as introduced Feb. 28, 1980, original
italics omitted; italics and boldface added.)

15

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declaration executed “at any place”). (Italics added.) Exemplar (a) included a
declaration or certification “under penalty of perjury,” while exemplar (b) added
the further words “under the laws of the State of California.” (Ibid.)
Faced with the original draft, the Assembly complained that amended
section 2015.5 did not seem “mandatory” insofar as it proposed that declarations
signed outside the state should be made “under the laws of the State of
California.” (Assem. Com. on Criminal Justice, Analysis of Sen. Bill No. 1615
(1979-1980 Reg. Sess.) as introduced Feb. 28, 1980, p. 2.) The same report
expressed concern that unless the amended statute departed from the federal
model and unequivocally required such language, then (1) declarants would lack
“notice” of related changes extending the reach of California’s perjury laws, (2)
any attempt to hold such persons “criminally liable” for perjury in California
might fail, (3) no “effective deterrent” to perjury in out-of-state declarations would
exist, and (4) such evidence would be less “reliab[le].” (Ibid.)11
The Assembly proposed to change one word in the original draft of
amended section 2015.5. (Sen. Bill No. 1615 (1979-1980 Reg. Sess.) as amended
June 10, 1980 [declarant “shall,” not “may,” use exemplars (a) and (b)].) The

11
As noted, the Assembly assumed that the federal statute does not compel
declarations signed outside the country to be made “under the laws of the United
States of America.” (28 U.S.C. § 1746(1).) In light of federal cases decided after
section 2015.5’s enactment, the Assembly’s concern on this point has proven well-
founded. (E.g., Commodity Futures Trading Com’n v. Topworth Int’l (9th Cir.
2000) 205 F.3d 1107, 1112 [declaration “substantially compli[es]” with 28 U.S.C.
§ 1746(1) insofar as contents are declared true under “ ‘laws of Hong Kong or any
applicable jurisdiction’ ”]; LeBoeuf, Lamb, Greene & Macrae, L.L.P. v. Worsham
(2nd Cir. 1999) 185 F.3d 61, 65-66 [declaration “substantially complies” with 28
U.S.C. § 1746(1) even though it does not mention “ ‘laws of the United States,’ ”
among other things]; Olympic Chartering v. Ministry of Ind. and Trade (S.D.N.Y.
2001) 134 F.Supp.2d 528, 532, fn. 2 [similar]; Matsuda v. Wada (D.Hawaii 1999)
101 F.Supp.2d 1315, 1322-1323 [similar].)
16

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Senate rejected the amendment (7 Sen. J. (1979-1980 Reg. Sess.) p. 13305), and
the bill was sent to a conference committee. (7 Sen. J. (1979-1980 Reg. Sess.)
p. 13309; 10 Assem. J. (1979-1980 Reg. Sess.) p. 18042.)
Taking a bolder approach, the conference committee apparently decided
that declarations used in California courts, particularly those signed outside the
state, would not be sufficiently trustworthy absent an express, mandatory reference
to California law. Hence, in a significant departure from both amended section
2015.5 as first proposed, and from 28 United States Code section 1746(1) on
which such proposal was based, the conference committee recommended that
section 2015.5 be expanded to include the language at issue here not only in a
permissive exemplar, but also in the statute’s substantive statement of the
requirements for an unsworn declaration. The conference committee’s amended
language provided that, unless a “place of execution” within this state is shown, a
declaration “executed at any place, within or without this state,” must recite that it
is made under penalty of perjury “under the laws of the State of California.”
(Conf. Amend. to Sen. Bill No. 1615 (1979-1980 Reg. Sess.) Aug. 20, 1980.)
Both houses of the Legislature adopted the conference committee’s proposal, and
the bill ultimately became law. (8 Sen. J. (1979-1980 Reg. Sess.) pp. 14001-
14002, 14201; 11 Assem. J. (1979-1980 Reg. Sess.) pp. 18672-18673.)
Thus, contrary to what petitioner implies, the Legislature rejected the
version of section 2015.5 patterned upon federal law and set forth in Senate Bill
No. 1615 as first introduced. Concerned that California’s perjury laws might not
apply and that the reliability of such evidence would suffer as a result, state
lawmakers insisted that unsworn declarants invoke “the laws of the State of
California” when executing their declarations outside this state. A declaration
signed in another state does not serve these aims or substantially comply with
section 2015.5 unless it contains the critical words that petitioner failed to use.
17

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Petitioner last defends his declaration with the following argument: Any
declaration sufficient in form to sustain a perjury charge under Penal Code section
118 is necessarily valid and admissible under section 2015.5. Conversely, any
declaration that is defective and inadmissible under the latter statute cannot
support conviction under the perjury statute. Unless an out-of-state declaration is
found to “substantially comply” with section 2015.5 despite the phrase missing
here, we risk weakening the perjury sanction by exempting from prosecution
flawed declarations that otherwise violate the law.
As a threshold matter, petitioner offers little support for his theory that the
evidentiary requirements for declarations mirror the conviction requirements for
perjury. Indeed, he overlooks certain authorities that test this assumption.12
However, we need not decide whether, in order to sustain a California
perjury conviction, a declaration signed outside the state must be made “under the
laws of the State of California.” The critical concern here is that such language is
necessary for validity and admissibility purposes. When the Legislature clarified
the extraterritorial reach of the perjury statute, it also sought to enhance the
trustworthiness of out-of-state unsworn declarations used in California
proceedings by maximizing the declarant’s specific understanding that his false
promises to tell the truth carried the potential for criminal prosecution in

12
Penal Code section 121 (“It is no defense to a prosecution for perjury that
the oath was administered or taken in an irregular manner”); see id. at sections 7
(“oath” includes “declaration”), 119 (“oath” includes “every other mode
authorized by law of attesting the truth”); People v. Laws (1981) 120 Cal.App.3d
1022, 1030-1031 (declaration supported perjury conviction even though contents
were not declared “true” as required by § 2015.5); In re Marriage of Reese & Guy
(1999) 73 Cal.App.4th 1214, 1223 (“ ‘The oath or declaration must be in such
form that criminal sanctions of perjury might apply where material facts so
declared to be true, are in fact not true or are not known to be true,’ ” italics
added).
18

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California. After conscious reflection on the issue, the Legislature achieved this
purpose by inserting a requirement that, whenever an unsworn declaration was
made elsewhere for use here, the document must acknowledge, on its face, that the
statements it contained were made under penalty of California’s “laws.” We can
only conclude that an out-of-state declaration which materially deviates from
section 2015.5 in this regard cannot be used as evidence.
19

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CONCLUSION
The Court of Appeal did not err insofar as it affirmed the trial court’s
decision excluding petitioner’s declaration under section 2015.5. We affirm the
judgment.
BAXTER, J.
WE CONCUR:

GEORGE, C.J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
BROWN, J.
MORENO, J.

20

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Kulshrestha v. First Union Commercial Corporation
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 107 Cal.App.4th 415
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S115654
Date Filed: July 19, 2004
__________________________________________________________________________________

Court:

Superior
County: Yolo
Judge: Timothy L. Fall and William S. Lebov

__________________________________________________________________________________

Attorneys for Appellant:

Martin F. Jennings, Jr., Stephan Mandell and Leo Donahue for Plaintiff and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Carlton, DiSante & Freudenberger, Mark S. Spring and Jeremy T. Naftel for Defendants and Respondents.

21

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Leo Donahue
11344 Coloma Rd., #160
Gold River, CA 95670
(916) 859-5999

Jeremy T. Naftel
Carlton, DiSante & Freudenberger
1000 G Street, Suite 400
Sacramento, CA 95814
(916) 443-0999

22

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Opinion Information

Date:	Docket Number:
Mon, 07/19/2004	S115654

Disposition
Jul 19 2004	Opinion: Affirmed

Dockets
May 2 2003	Petition for review filed   by counsel for aplt
May 2 2003	Request for judicial notice filed (granted case)   aplt's motion for judicial notice
May 6 2003	Received Court of Appeal record   one volume
May 9 2003	Answer to petition for review filed   By counsel for Respondents {First Union Bank et al.,}
May 12 2003	Received document entitled:   Declaration of Compliance from counsel for respondents.
Jun 18 2003	Petition for Review Granted (civil case)   Votes: George, C.J., Kennard, Baxter, Werdegar, Chin and Moreno, JJ.
Jun 27 2003	Certification of interested entities or persons filed   By Respondent {First Union}.
Jun 27 2003	Request for extension of time filed   By counsel for appellant asking until September 17, 2003 to file Appellant's Opening Brief on the Merits.
Jul 9 2003	Extension of time granted   To September 17, 2003 to file Appellant's Opening Brief on the Merits.
Sep 17 2003	Opening brief on the merits filed   In Sacramento by Appellant {Dheeraj Kulshrestha}.
Sep 29 2003	Request for extension of time filed   By Respondent asking for a 30-day extension to November 17, 2003 to file Respondent's Answer Brief on the Merits.
Oct 2 2003	Extension of time granted   To November 17, 2003 to file Respondent's Answer Brief on the Merits.
Oct 9 2003	Association of attorneys filed for:   Leo Donahue and Stephan Mandell as counsel for Appellant {Dheeraj Kulshrestha}.
Nov 17 2003	Answer brief on the merits filed   By Respondetn {First Union Commercial}.
Dec 3 2003	Reply brief filed (case fully briefed)   by appellant Dheeraj Kulshrestha, in Sacramento
Apr 2 2004	Request for judicial notice granted   The motion for judicial notice filed on May 2, 2003, is hereby granted.
Apr 28 2004	Case ordered on calendar   Tuesday May 25, 2004 at 1:30 PM (San Francisco Session).
May 25 2004	Cause argued and submitted
Jul 19 2004	Opinion filed: Judgment affirmed in full   Majority Opinion by Baxter, J. ----- Joined by George, CJ., Kennard, Werdegar, Chin, Brown and Moreno, JJ.
Aug 19 2004	Remittitur issued (civil case)
Sep 7 2004	Received:   Receipt for remittitur from 3 DCA.

Briefs
Sep 17 2003	Opening brief on the merits filed
Nov 17 2003	Answer brief on the merits filed
Dec 3 2003	Reply brief filed (case fully briefed)

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website