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Court Holds That Corporation Need Not Verify Its Answer

Section 446 of the California Code of Civil Procedure concerns the verification of pleadings.  Subdivision (a) provides that an answer to a complaint generally must be verified in either of two following circumstances:

  • a governmental entity or officer is the plaintiff, unless:
    • an admission of the truth of the complaint might subject the party to a criminal prosecution; or
    • a county, city, school district, district, public agency, or public corporation, or an officer of the state, or of any county, city, school district, district, public agency, or public corporation, in his or her official capacity, is defendant; or
  • the complaint itself is verified.  

The first exception does seemingly applies to any party, including a party that is not an a natural person.  In a recent case, however, the state argued that the exception did not apply to corporations because corporations have no privilege against self-incrimination under the Fifth Amendment to the U.S. Constitution.  Braswell v. United States, 487 U.S. 99 (1988).  

The Court of Appeal, however, rejected the state's argument:

"Section 446, subdivision (a) does not refer to a 'person' being compelled to be a witness against themselves.  Instead it refers to a 'party' who might be subjected to a criminal prosecution.  How the word “person” has been interpreted in the context of the constitutional privilege is immaterial."

Paul Blanco's Good Car Company Auto Group v. Superior Court, Cal. Ct. App. Case No. A159623 (Oct. 20, 2020).  The Court made it clear that it was not extending the privilege against self-incrimination to corporations and that corporations will likely have to provide responses under oath in discovery. 

© 2010-2020 Allen Matkins Leck Gamble Mallory & Natsis LLP National Law Review, Volume X, Number 296



About this Author

Keith Paul Bishop, Corporate Transactions Lawyer, finance securities attorney, Allen Matkins Law Firm

Keith Bishop works with privately held and publicly traded companies on federal and state corporate and securities transactions, compliance, and governance matters. He is highly-regarded for his in-depth knowledge of the distinctive corporate and regulatory requirements faced by corporations in the state of California.

While many law firms have a great deal of expertise in federal or Delaware corporate law, Keith’s specific focus on California corporate and securities law is uncommon. A former California state regulator of securities and financial institutions, Keith has decades of...