California Code of Civil Procedure Section 2009 is the short statute that tells you when an affidavit is allowed in a California civil case. Under CCP 2009, you can use an affidavit to verify a pleading or a paper in a special proceeding, to prove service of a summons or notice, to obtain a provisional remedy, to request a witness examination or a stay, to establish a birth record in an uncontested proceeding, to support or oppose a motion, and in any other situation another statute expressly permits.1Justia Law. California Code of Civil Procedure § 2009
That is the entire operative list. The statute reads, in full: “An affidavit may be used to verify a pleading or a paper in a special proceeding, to prove the service of a summons, notice, or other paper in an action or special proceeding, to obtain a provisional remedy, the examination of a witness, or a stay of proceedings, and in uncontested proceedings to establish a record of birth, or upon a motion, and in any other case expressly permitted by statute.”1Justia Law. California Code of Civil Procedure § 2009
The Procedural-Only Limit
The most important thing to understand about Section 2009 is what it does not authorize. California courts read the statute as covering procedural and collateral matters only. You cannot use an affidavit to prove the central disputed facts of a contested case.
The California Supreme Court set this out in Fewel v. Fewel. Justice Traynor’s concurring opinion explained that the statute “permits its use in a limited number of situations in uncontested cases but does not give it the character of evidence in a contested case.” An affidavit is “ordinarily excluded as hearsay,” and allowing it to decide “fundamental substantive issues in controversy” would strip the opposing party of the right to cross-examine the person who signed it.2Stanford Law School. Fewel v. Fewel, 23 Cal.2d 431
The Court of Appeal applied that limit directly in Liebovich v. Shahrokhkhany. A landlord in an unlawful detainer case tried to prove that a three-day notice had been served by submitting an affidavit under Section 2009. The court said no. The statute “has no application to the proof of facts which are directly in controversy in an action,” was never “intended to have the effect of changing the general rules of evidence by substituting voluntary ex parte affidavits for the testimony of witnesses,” and “only applies to matters of procedure — matters collateral, ancillary, or incidental to an action or proceeding.”3Justia Law. Liebovich v. Shahrokhkhany, 56 Cal.App.4th 511
The working line is this: use affidavits for the procedural plumbing of a case. Use live testimony to prove the facts in dispute.
Contested Motions Are Different
One point regularly confuses people. The procedural-only rule does not mean affidavits are limited to uncontested matters. For motions specifically, Section 2009 has “no qualifying phrase” restricting them to uncontested motions. The Court of Appeal confirmed in Armstrong v. Armstrong that an affidavit is “proper in support of, or in opposition to” a contested motion.4FindLaw. Armstrong v. Armstrong
So the distinction is not contested versus uncontested. It is motion practice and other procedural steps (affidavits fine) versus the trial of ultimate facts (affidavits not fine).
You Can Use a Declaration Instead
In practice, almost no one files a traditional notarized affidavit in California civil cases anymore. CCP Section 2015.5 lets an unsworn declaration under penalty of perjury substitute for an affidavit anywhere California law requires or permits a “sworn statement, declaration, verification, certificate, oath, or affidavit.” The declaration carries the “like force and effect” of a sworn affidavit.5Justia Law. California Code of Civil Procedure § 2015.5 No notary required. The signer just includes the correct certifying language.
Section 2015.5 gives two formats depending on where you sign:6FindLaw. California Code of Civil Procedure § 2015.5
- If you sign in California: “I certify (or declare) under penalty of perjury that the foregoing is true and correct,” followed by the date, place of execution, and signature.
- If you sign anywhere, including outside California: “I certify (or declare) under penalty of perjury under the laws of the State of California that the foregoing is true and correct,” followed by the date and signature.
Three narrow situations still require a true sworn affidavit and will not accept a declaration: depositions, oaths of office, and oaths required to be taken before a specified official other than a notary public.7California Legislative Information. CCP § 2015.5 Outside those exceptions, a properly worded declaration does everything an affidavit does under Section 2009.
Proving Service of Process
Proof of service is the most common everyday use of Section 2009’s authorization. Other statutes layer specific content requirements on top of it.
CCP Section 417.10 governs proof of service of a summons within California. The server submits an affidavit showing the time, place, and manner of service, demonstrating compliance with the applicable service rules, and identifying the person who was served. Proof of personal service must be filed on a form adopted by the Judicial Council.8FindLaw. California Code of Civil Procedure § 417.10
For service by mail, CCP Section 1013a sets out what the affidavit has to include: the exact title of the document served, a statement that the server is over 18 and not a party to the case, the date and place of mailing, and confirmation that the envelope was sealed and deposited with postage prepaid. Active State Bar members can file a certificate in place of an affidavit for this purpose.9FindLaw. California Code of Civil Procedure § 1013a
Keep in mind the Liebovich rule: Section 2009 authorizes an affidavit to prove service as a procedural step in your own case. It does not authorize an affidavit to prove service when service itself is the contested factual issue the court has to decide at trial.
Verifying a Pleading
When a statute or rule requires a pleading to be verified, Section 2009 is what allows an affidavit (or, in practice, a Section 2015.5 declaration) to do the verifying. CCP Section 446 governs verified pleadings generally.
The standard verification language, illustrated by the Orange County Superior Court’s form, requires the party to state that they have read the document, know its contents, and that the facts are true to their own knowledge except where stated on information and belief. An officer, partner, or other authorized representative verifying for an entity must also confirm their authority to do so. An attorney may verify a pleading only when the party is absent from the county, and must state that the allegations are true on information and belief.10Orange County Superior Court. Verification Form