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Hearsay When Moving for Summary Judgment

In this post, we discussed the value of a motion for summary judgment in a commercial collection case where the claims litigated relate to failure to pay on a written instrument. We touched on the need for the client to provide declarations in the form of business records. These business records, of course, are inadmissible if hearsay if they are not exceptions to the rule against admissibility of hearsay.

However, generally speaking, these documents are not hearsay. California Evidence Code § 622 provides that facts received in a written instrument are conclusively presumed to be true as between the parties thereto. The effect of this conclusive presumption is to impose upon the party against whom it operates, the burden of proof as to the nonexistence of the presumed fact. California Evidence Code § 606. Written or oral utterances, which are acts in themselves constituting legal results in issue in the case do not come under the hearsay rule. Kunec v. Brea Redevelopment Agency (1997) 55 Cal.App.4th 511, 524;. see also, Jazayeri v. Mao (2009) 174 Cal.App.4th 301; 316 [documents containing the words forming an agreement are not hearsay]; Remington Investments, Inc., v. Hamedani (1997) 55 Cal.App.4th 1033, 1042 [operative contractual documents do not fall within the hearsay rule].

California Evidence Code § 1271, provides that a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to 1443660466_Pencil-Writing.pngprove the act, condition, or event if: (a) The writing was made in the regular course of a business; (b) The writing was made at or near the time of the act, condition, or event;(c) The custodian or other qualified witness testifies to its identity and the mode of its preparation and the authenticy or genuiness of the document; and (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.

Thus, a plaintiff business owner's declaration submitted in connection with a motion for summary judgment must establish the foundation for a business records exception to the hearsay rule for the records and files. The declaration must identify the documents relied upon, establish the authenticity of the documents, and establish the time and circumstances of the documents. Moreover, in the event that the creditor is relying on another bank's business records, courts have held that bank computer records are admissible without specific testimony regarding their method of preparation. People v. Lugashi (1988) 205 Cal.App.3d 632; 642; also see: People v. Dorsey (1974) 43 Cal.App.3d 953; 960 [bank statements prepared in the regular course of banking business and in accordance with banking regulations are a different category than the ordinary business and financial records of a private enterprise].

In order to prevail on a motion for summary judgment, there is no room for error. Contact experienced Los Angeles commercial collections attorney Ronald P. Slates today if you want the best legal representation.

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