Summary judgment motions: Is it necessary to include an affirmation that the declarant is competent to testify?

Many attorneys will add a variation of the following statement: “The foregoing is within my personal knowledge, and as such, I am competent to testify thereto.” Don’t rely on the belief that simply adding this statement is enough to avoid scrutiny or objections.  Code of Civil Procedure section 437c(d) requires admissible evidence and declarations or affidavits “shall show affirmatively that the affiant is competent to testify.” In preparing declarations, make sure the body of the declaration reflects that personal knowledge.  If the declarant was present at a face-to-face conference or personally observed something, the declaration should be tailored to show that the declarant possesses that personal knowledge.

Declarations often run rampant with hearsay.  Some attorneys believe it is worth the risk of including hearsay statements, hoping that the opposition might not object.  I believe it is a better practice to avoid including hearsay statements, which might weaken the credibility of the declaration.  Whenever possible, you should draft the declaration so as to avoid hearsay objections, including  facts that will support an exception to the hearsay rule.

Conversely, when you are reviewing an opposing party’s declarations, don’t simply accept the declarant’s statement as absolute proof that the declarant has personal knowledge.  “Where the facts stated do not themselves show it, such bare statement of the affiant has no redeeming value and should be ignored.”  (Snider v. Snider (1962) 200 Cal. App.2d 741, 754; Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 692.)   Even so, while others have indicated that the omission of this form statement is immaterial, I prefer to keep it in for several reasons.  One, I think courts are so accustomed to seeing it so that if the statement is missing, they may suspect the declarant lacks personal knowledge, and two, it is a confirmation of personal knowledge when the language in the declaration may not clearly indicate personal knowledge.