I dissent.
The majority upholds the trial court’s order—that respondent Flanders shall pay to petitioner County of Santa Barbara the sum of $3,800 to reimburse the county for public assistance funds expended by it to support Flanders’ two minor children.
Appellant Flanders contends on this appeal that the county as petitioner-plaintiff below failed to introduce any testimony or other evidence to establish that the sum of $3,800 was paid by the county to his ex-wife for the support of his minor children. This contention of *496Flanders is valid, and requires that the order appealed from be reversed. The majority states that the evidence shows that the ex-wife was in receipt of child support payments from the County of Santa Barbara from August 1, 1971, until September 1974. The record below referred to for support of this statement is testimony from Flanders that he had been in constant communication with Santa Barbara County District Attorney’s office in reference to payments to his wife for the support of the two minor children. The majority quotes this language from the record: “Q. And during that time you have been cognizant of the fact that your wife was in fact receiving County assistance of some means; is that not correct? [II] A. That is correct.” I fail to see how such testimony can be distorted by the majority opinion into a finding that “[s]ince, in the present case, the county has paid far more than the dissolution court’s order, the trial court properly fixed the amount payable at the amount of the delinquency under the dissolution order—an amount not disputed at the trial or here.”
I see no evidence in the record that the county paid Flanders’ ex-wife the sum of $3,800. The most that can be obtained from the testimony of Flanders is that he was aware that his “wife was in fact receiving County assistance of some means . . . .” (Italics added.) I cannot interpret this as evidence that the county had paid the ex-wife a minimum of $3,800.
The majority holds that the pleadings raised no triable issue as to the amount of payment. This holding overlooks the fact that the complaint, on information and belief in paragraph 3 thereof, alleged that “public assistance in the amount of $3,800.00 . . . was paid by Petitioner [the County of Santa Barbara] to Respondent’s [Flanders’] (wife and) minor offspring between August 1, 1971 and September 30, 1974.” The allegations of paragraph 3 were denied by defendant Flanders for lack of information or belief.
The majority seeks to obviate the lack of proof at the trial of these payments by the county by simply asserting that “[t]he county knew what it had paid Mr. Flanders’ ex-wife and could and should have alleged the amount directly and not on information and belief [citations].” The majority then concludes that the defendant’s denial was also improper —on lack of information or belief; that the amount of the county’s payments was of record in the county offices and that a simple inquiry would have permitted Flanders to verify or refute the exhibits attached to the complaint.
*497This analysis of the majority overlooks the fact that the burden of proof was on the county that filed the complaint and alleged the county payment of sums far in excess of $3,800 to the ex-wife. This burden initially includes the burden of going forward with the evidence. (Evid. Code, §§ 500, 550, subd. (b); see Jefferson, Cal. Evidence Benchbook (1972) § 45.2, pp. 781-791.)
The majority states that defendant’s denial for lack of information and belief was improper in spite of the fact that the plaintiff’s complaint—on information and belief—-was improper. I disagree.
It is an accepted rule of pleading that “[although section 437 ef the Code of Civil Procedure [now Code Civ. Proc., § 431.30] permits a denial in a nonpositive form based upon information and belief, or upon lack of information or belief, such denials are insufficient where the facts are presumptively within the knowledge of the defendant. [Citations.] This rule is frequently applied to matters of public record. Accordingly, a denial upon information and belief, or for want of information or belief, of an alleged fact which may be ascertained from the inspection of a public record within reach of a defendant is insufficient to raise an issue, and such a denial constitutes an admission of the allegation of the complaint. [Citations.]” (Oliver v. Swiss Club Tell (1963) 222 Cal.App.2d 528, 538-539 [35 Cal.Rptr. 324].) (Italics added.) It is to be noted, however, that this rule of pleading with respect to matters of public record is a general rule applicable to affirmative pleading as well as to denials. Thus, an affirmative allegation, upon information and belief, “violates the rule of pleading, which requires that matters of record must be alleged positively and not upon information and belief.” (Home Owners’ Loan Corp. v. Gordon (1939) 36 Cal.App.2d 189, 192 [97 P.2d 845].)
In the case before us, therefore, if the matter of the fact of payment and the amount of the county’s payments to Flanders’ ex-wife is a matter of public record, as the majority contends, the County of Santa Barbara, as petitioner and plaintiff, should have alleged these payments positively, rather than “on information and belief.” The majority concedes that the county should have done this. But, even though the county did not plead its contentions correctly, the majority holds that the county was not required to prove its case against defendant with the production of evidence. This odd and untenable result is reached on the theory, apparently, that defendant Flanders was, nevertheless, required to answer plaintiff’s lack-of-information-or-belief allegations positively, or, *498suffer the consequences of proving the negative—that the county had not made the payments to defendant’s ex-wife.
This reasoning is untenable and erroneous. Since the county’s complaint alleges the matter of the county’s payments on information and belief, and not by positive allegations, respondent and defendant Flanders, in his answer to the complaint, was entitled to deny the information-and-belief allegations with lack-of-sufficient-information-or-belief denials. If the fact of the county’s payments to the ex-wife of Flanders was not presumptively within the knowledge of the county as a matter of public record—since the county’s complaint did not allege the fact positively—such fact cannot reasonably be said to be presumptively within the knowledge of Flanders as defendant in the action. I fail to see the logic in requiring a defendant to deny positively a plaintiff’s allegations based on information and belief or else the burden of proof shifts to defendant. No stricter pleading burden should be placed upon a defendant than that employed by the plaintiff.
The majority opinion asserts that the amount of the county’s payments to Flanders’ ex-wife was of record in the county offices. This is an unfounded assumption, not based on any evidence introduced at the trial. In the first place, it is refuted by the very fact that the county’s complaint alleged the fact and the amount of the payments on information and belief—not by positive allegations.
The majority asserts that the obligation was on the defendant to verify “or to refute” the exhibits attached to the complaint.
But the four declarations by a county employee, attached to the complaint as exhibits, are simply to the effect that warrants in specified amounts were issued in named months to defendant Flanders’ ex-wife and, that “[i]f called as a witness to testify in the above matter,” the declarant “would be able to testify competently thereto.” These affidavits do not set forth that the facts asserted are matters of record in the county’s auditor-controller’s office. These declarations are inadmissible hearsay (see Jefferson, Cal. Evidence Benchbook (1972) § 1.2, pp. 4-5), and have been denied effectively by the answer of Flanders to the county’s complaint. Affidavits, attached to a complaint as exhibits, do riot lose their hearsay character by virtue of the attachment, and do not become admissible in evidence.
*499The majority justifies its position that plaintiff was not required to sustain its burden of proof by stating that the record below does not indicate that defendant Flanders was concerned with verifying the amount of the county’s payments. This reasoning is fallacious. In the absence of a stipulation or admission, a defendant’s concern or lack of concern is irrelevant to the question of whether a plaintiff has sustained its burden of proof as to a “fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.” (Evid. Code, § 500.)
The County of Santa Barbara, the plaintiff in the instant contested action, had the burden of proof to establish, by a preponderance of the evidence, that the County had made payments to Flanders’ ex-wife, as alleged in the complaint. This the county failed to do, since it introduced no evidence at all on the issue. Flanders, as respondent and defendant, was entitled, therefore, to judgment in his favor.
Since the trial court’s order involved in this appeal is not supported by any evidence, substantial or otherwise, I see no necessity in dealing with the other issues discussed in the majority opinion.
I would reverse the order from which the appeal has been taken.