Use of Affidavits and Declarations in Licensing Defense Hearings

The Administrative Procedure Act (APA) provides a procedure under which sworn affidavits or declarations under penalty of perjury may be used the same as live testimony in an adversarial professional licensing hearing. (Gov. Code, § 11514.) Please note that an “affidavit” is defined in the California Code of Civil Procedure, sections 2009–2015.6. Declarations under penalty of perjury are given the same effect as affidavits under section 2015.5.
The affidavit or declaration eliminates the need to bring witnesses to hearings to testify on undisputed matters and provides a method of obtaining testimony from a witness who is unavailable (e.g., out of state or deceased). It can be treated the same as live, oral testimony if it is produced to the other side in a timely manner before hearing and unless the opposing party requests an opportunity to cross-examine the affiant or declarant within a week of receipt and review. If the opposing party does not request to cross-examine the affiant or declaration in writing, the right to cross-examine is waived, and the affidavit or declaration, if introduced in evidence, is given the same effect as if the affiant or declarant had testified orally. (Gov. Code, § 11514(a); See Windigo Mills v. Unemployment Ins. Appeals Bd. (1979) 92 Cal.App.3d 586; Park Motors, Inc. v. Cozens (1975) 49 Cal.App.3d 12, 17.)
In the event the opposing party does makes an appropriate and timely request to cross-examine the affiant or declarant but the proponent of the affidavit does not produce the affiant or declarant, the affidavit or declaration nevertheless may be received in evidence if offered. However, it can only be received as administrative hearsay (Gov. Code, § 11514(a)) and subject to the limitation applicable to hearsay in administrative proceedings. Specifically, that means that it cannot be the sole evidence on which a finding is based. (Gov. Code, § 11513(c); see 6 Ops Cal Atty Gen 219 (1945).