Of course it’s a “self-serving declaration”! Why else would I file it?!

If you lose a motion and rail against the stupidity of the judge, that’s just viewed as sour grapes. But today I was in court for a hearing, and it was the case BEFORE mine that raised my hackles, so I can rant with impunity. (And yes I won my motion, so this isn’t indirect sour grapes either.)

I mostly hear this refrain from opposing counsel, but judges sometimes make the same stupid remark. That remark is referring to a declaration as “self-serving,” and arguing that it should be disregarded on that basis. In reality, if you are filing declarations that aren’t self-serving, you are doing something horribly wrong.

Let me give you the facts of the case in question so you’ll see what I’m talking about.

The case was a landlord/tenant dispute. From what I gleaned from the oral argument (which the court allowed to go on for almost an hour – wasn’t this all discussed in the briefs?), the landlord is suing for unpaid rent, and the tenant is claiming breach of the warranty of habitability. But I also gleaned that this is no garden-variety rental being discussed. The home is 18,000 square feet, and it came out that the monthly utility bills exceed $11,000. (I feel a lot better about my electric bill now.)

The landlord threw in a cause of action for fraud, claiming that tenant never intended to pay the rent (even though it was mentioned that the tenant had paid more than $250,000 in rent during his tenancy).

Counsel for tenant knew that landlord would never be able to marshal any evidence to support the fraud claim, so he sought summary adjudication on that claim. Isn’t that what motions for summary judgment are for; to call the bluff of the other side and make them put their cards on the table to see if they can establish a triable issue of fact?

So, landlord had claimed that tenant entered into the lease, not intending to pay the rent. Well that’s pretty easily refuted. Tenant filed a declaration, stating that he did intend to pay the rent, as evidenced by the fact that up until the moment sewage started flooding his home, he had always paid his rent (the aforesaid $250,000).

Landlord had no response. He did not file a single declaration or offer any evidence that would create a triable issue on the fraud claim.

In his tentative ruling, the judge denied the Motion for Summary Adjudication on the fraud claim, stating that the declaration proffered by tenant was self-serving. He cited Code Civ. Proc. § 437c(e), which provides:

If a party is otherwise entitled to a summary judgment pursuant to this section, summary judgment may not be denied on grounds of credibility or for want of cross-examination of witnesses furnishing affidavits or declarations in support of the summary judgment, except that summary judgment may be denied in the discretion of the court, where the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness to that fact; or where a material fact is an individual’s state of mind, or lack thereof, and that fact is sought to be established solely by the individual’s affirmation thereof.

Admittedly, the wording of section 437c(e) seems to support the rejection of a self-serving declaration under these facts, but in my never to be humble opinion, that section was meant to attack affirmative motions, as opposed to defensive motions.

For example, if a plaintiff was suing for intentional infliction of emotional distress, and brought a motion for summary judgment supported by his own declaration stating that he was really, really emotionally distressed, there isn’t much the defendant can offer in response. Absent an IME, what evidence could the defendant offer to show whether or not plaintiff was emotionally distressed? Section 437c(e) recognizes this fact, and gives the judge some wiggle room. Such an issue is perhaps better decided after live testimony, with the benefit of cross-examination.

But here, the burden is on landlord to show the fraud. The ONLY evidence tenant will EVER be able to offer about his state of mind is testimony about his state of mind. If landlord has no evidence sufficient to create a triable issue of fact as to the fraud claim, then why let it proceed to trial?

The Ninth Circuit had a true “duh” moment when it recently realized that declarations are predictably self-serving, and should not be disregarded on that basis.

In the case of Nigro v. Sears, Roebuck and Co., No. 12-57262 (9th Cir. 2015), the plaintiff was an employee suing Sears for disability discrimination. Sears brought a motion for summary judgment, claiming that Nigro could not show a causal relationship between his termination and his disability. Nigro opposed the motion with only his own declaration, stating, in essence, that he was specifically told that he was being terminated because of his disability.

The trial court granted the motion for summary judgment, holding that Nigro’s declaration could be disregarded because it was “uncorroborated and self-serving,” and therefore there was no material issue of fact.

What?! Do judges think before they write this stuff? So I’m called into the boss’s office, and told that I’m being fired because he is sick and tired of my disability. The only two witnesses to that conversation are me and the boss. But I can’t defeat a motion for summary judgment, because when I file a declaration, it will be self-serving and should be disregarded (unless the boss is kind enough to corroborate what occurred).

The Ninth Circuit slapped its collective head and held that “declarations are often self-serving, and this is properly so because the party submitting it would use the declaration to support his or her position.” (Citing S.E.C. v. Phan, 500 F.3d 895, 909 (9th Cir. 2007), meaning that the court had already slapped its forehead some eight years earlier, but apparently the District Court had not heard it).

So, the next time you find yourself about to type or say the words, “self-serving declaration,” pause a few to consider the absurdity of that statement.