Reported / Citable
Background
Brian Detrick, an attorney, formerly represented Keiko Shimada in a dispute over her deceased husband’s estate. After Shimada signed an unfavorable settlement at mediation, she sued Detrick for malpractice and fraud, alleging he withheld critical information and provided false advice. Detrick’s counsel sent a letter responding that the malpractice claims were untimely under the statute of limitations and that Detrick was not even present at the mediation when Shimada signed the settlement. The letter included a malicious prosecution warning. Shortly thereafter, Shimada voluntarily dismissed the malpractice suit with prejudice.
Detrick then sued Shimada for malicious prosecution. To avoid liability, Shimada had to defeat the favorable termination element by showing she dismissed the malpractice suit for reasons unrelated to the merits of Detrick’s defense. She moved for summary judgment, supported by her own declaration stating that her main motivation for the dismissal was concern about the statute of limitations.
Detrick objected that Shimada’s declaration was not competent evidence because Shimada could not read or speak English, and the declaration provided no attestation from an interpreter or translator certifying that the declaration accurately reflected Shimada’s words. The trial court overruled the objection, ruling that the Evidence Code interpreter provisions did not apply to declarations, and granted summary judgment. Detrick appealed.
The Court’s Holding
The Second District Court of Appeal, Division One, reversed. The court held that Shimada’s English-language declaration was not competent evidence and could not support summary judgment because she could not read or write English and there was no attestation from an interpreter or translator certifying that the declaration accurately reflected her words.
Evidence Code section 701(a)(1) disqualifies as a witness any person incapable of expressing him or herself concerning the subject matter so as to be understood, either directly or through interpretation by a person who can understand the witness. When a witness cannot communicate directly in the language of the legal proceeding, the witness’s testimony depends on an interpreter as an intermediary. The reliability of that testimony depends on the qualifications of the interpreter and on appropriate attestation that the interpretation accurately conveys the witness’s actual words.
This requirement applies equally to oral testimony and written declarations. There is no principled basis to apply lower standards to written declarations submitted in support of motions than would apply to live testimony. Without interpreter attestation, an English-language declaration purportedly reflecting the words of a non-English-speaking witness is not competent evidence.
Because Shimada presented no qualifying interpreter attestation, her declaration could not establish her reasons for dismissing the malpractice suit. Her counsel’s declaration about her motivations was hearsay. Without competent evidence of her reasons, Shimada could not make the prima facie showing required to win summary judgment on the favorable termination element.
Key Takeaways
- An English-language declaration purportedly reflecting the words of a witness who cannot read or speak English is not competent evidence without an attestation from a qualified interpreter or translator certifying the accuracy of the translation.
- The Evidence Code’s competence requirements for witnesses apply equally to written declarations and live testimony.
- Counsel preparing declarations from non-English-speaking clients should obtain qualified interpreters or translators and ensure that the interpreter or translator provides an attestation that becomes part of the declaration package.
- In malicious prosecution cases, the favorable termination element requires evidence of the underlying plaintiff’s actual reasons for dismissal. Statute of limitations dismissals typically do not constitute favorable termination, but the dismissing party must establish the actual reason with competent evidence.
- Counsel’s declaration about a client’s reasons for dismissal is hearsay and cannot substitute for the client’s own competent testimony.
Why It Matters
This decision is important for civil litigation involving non-English-speaking parties. California’s diverse population means that many declarations are translated from other languages, and the opinion makes clear that proper procedural safeguards must be followed. Lawyers who routinely prepare declarations for non-English-speaking clients should review their practices to ensure that interpreter attestations are included.
For litigators on either side of summary judgment motions, the case is a reminder to scrutinize the foundation of declaration evidence, particularly when there is reason to believe a declarant does not actually speak or read the language of the declaration. For attorneys representing non-English-speaking clients, the decision underscores the need for qualified interpreters and proper attestation procedures. For trial courts, the opinion provides clearer guidance on the application of Evidence Code section 701 to written declarations and the requirement that interpretation, when needed, be properly documented.