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Rivertime last won the day on May 25 2015

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  1. Just joined (literally just joined) so that I could extend my thanks to you! I'm an L.D.A. in CA and was needing to draft a request for production of documents for a client/defendant in a credit card lawsuit. I began trolling around expecting to invest a good 3-4 hours into research and prep. Almost immediately I came across this https://docs.google.com/file/d/0B8mtxc68Hb2tM001VFBXbGJ4N2s/edit, in a post from 2013! I want to say thank you for making my job super easy today! This is definitely going into my war chest! Thank you again for that little treat. 

  2. Or, do a little research and find out who their top officers are and send them a letter demanding payment by a date certain or you will subpoena them for a debtors exam. CC all who you list in the letter. I bet you'll get paid pretty quick. Good Luck, rt
  3. Okay, here is CCP 96 (a) Any party may serve on any other party a request in substantially the following form:TO: ____________________________________________ ,attorney for ____________________________________: You are requested to serve on the undersigned, within 20 days, a statement of: the names and addresses of witnesses (OTHER THAN A PARTY WHO IS AN INDIVIDUAL) you intend to call at trial; a description of physical evidence you intend to offer; and a description and copies of documentary evidence you intend to offer or, if the documents are not available to you, a description of them. Witnesses and evidence that will be used only for impeachment need not be included. YOU WILL NOT BE PERMITTED TO CALL ANY WITNESS, OR INTRODUCE ANY EVIDENCE, NOT INCLUDED IN THE STATEMENT SERVED IN RESPONSE TO THIS REQUEST, EXCEPT AS OTHERWISE PROVIDED BY LAW. ( The request shall be served no more than 45 days or less than 30 days prior to the date first set for trial, unless otherwise ordered. © A statement responding to the request shall be served within 20 days from the service of the request. (d) No additional, amended or late statement is permitted except by written stipulation or unless ordered for good cause on noticed motion. (e) No request or statement served under this section shall be filed, unless otherwise ordered. (f) The clerk shall furnish forms for requests under this rule. (g) The time for performing acts required under this section shall be computed as provided by law, including Section 1013. If plaintiff did not include their CCP 98, declaration/affidavit in lieu of testimony, in their CCP 96 response, it should NOT be allowed into evidence. The statute is very clear. Now, the tough part, if your judge wants to allow it, you must object and argue that the court should follow the statute. Good Luck, rt Just to be clear, you did serve them a CCP 96 correct? If their response was to your CCP 96 request, I'm pretty sure the above applies.
  4. Also, for what it’s worth, during my cases I NEVER looked up any account numbers that may or may not have been associated with my account. I didn’t even pull a credit report so I could honestly answer “I don’t recall,” or “I do not know.” Again, FYI rt
  5. A deposition is not a document, it’s a process. In you case, plaintiff would call you, or other related people, in as a witness. Probably to an office somewhere close to you and you and/or the witnesses will be put under oath and they will ask questions with a court reporter present who would take down every word spoken while you are on the record. You would also have the opportunity to question any witness deposed. I really doubt plaintiff will do this as it is a very expensive proposition. Plaintiff will have to pay for the attorney time, court reporter, etc. Since the witness in under oath, the testimony given during the deposition is admissible at trial. This is, of course, is my recolection. rt
  6. @Anon: Talk about playing to your audience... LOL!
  7. Anon is correct in my opinion. Attempting to argue the ad may just get you into the weeds and not prove to be very productive. You need to prepare to argue points of law as stated in the statute. rt
  8. The affiant is a custodian of records for plaintiff’s company and can verify and authenticate records of plaintiff’s company and insure the records qualify for the exemption as stated in the code. California Evidence Code§§ 1270 – 1272. Now a lot of JDB’s attempt to use their own employ (Custodian of Records) to authenticate records from the OC but if you read the evidence code about the exemption, the affiant is clearly not able to authenticate the records of a different company. To quote Calawyer, “that would be like asking someone read about an auto accident in the newspaper and then bring them into court as a witness to the accident.” They have absolutely no firsthand knowledge. However, judges will allow this kind of testimony unless you are able to argue against it effectively. I hope this helped, rt
  9. The CCP 98 is a Declaration or Affidavit IN LIEU of testimony, meaning in stead of testimony. The Declarent or Affiant can always show up and testify. The whole purpose for the CCP 98 is so the Declarent or Affiant does NOT have to show up. By you subpoenaing the Declarent or Affiant, you are requiring them to show up or the plaintiff’s evidence is out because there is no one to verify it and you have a right to question the witness. I’m a bit confused about your job description issue, it says the job is a Custodian of Records and the duties are to verify documents and that is what she is doing. The fact that the documents in question are not those of the plaintiffs is another issue relating to the business records exemption rule. The custodian of records of one company cannot authenticate records of a different company. If he/she shows up, you’ll need to be prepared to argue the issue effectively. Also, the fact that no one knew who they were is great, plaintiff will probably never know you supoenaed the witness and probably won't bring them. Good Luck rt
  10. Also, a good strategy that worked for me is this: With the CCP 96, timing is everything. If you send it to them in the mail, they have 20 days to respond plus an additional 5 days, because you mailed it, for a total of 25 days to respond. A response is considered completed when it is dropped in the mail. Now here’s the strategy, if you send them the CCP 96 via overnight currier, they get 20 days plus 2 court days to respond for a total of only 22 days if you time it right when serving with the court days rather than calendar days. I only point this out because this worked in my case. I was hoping they would be lazy and put my CCP 96 in the pile to respond to by day 25 and that is what they did. They responded on day 25, I objected to ALL their evidence because they did not have a proper CCP 96 response as a result hey had NO evidence. We had begun the trial by arguing my MIL about that very subject and, very important, trial HAD technically begun. This is important because once trial has begun, the only option left for a plaintiff without evidence was a dismissal WITH prejudice. The judge may not know that so if you get there, be prepared to educate the judge about CCP 581(e). Also, CCP 96 say that "the request shall be served no more than 45 days or less than 30 days prior to the date first set for trial unless otherwise ordered." Good luck, rt
  11. As others have stated, DO NOT admit to ANY DEBT, DO NOT offer any kind of payment. Your presence at court is ONLY to make sure you case is actually dismissed so you’re not surprised at a later date with a default judgment. Good Luck, rt
  12. The decision to allow substitute service or not is yours to make. In my case, I had the process server attempt service, VERIFY that the witness was NOT available for service at the address, then attempt to leave the subpoena for substitute service. As it turned out for me, the people at the law office’s address refused to accept service. Now for the tricky part, at least is was for me. Process servers are not used to doing this kind of thing and I really had to explain to them what I needed from them. I needed a declaration from them stating clearly they were not able to serve the subpoena because the witness was NOT available, and would not be available for service at the given address. Don’t tell plaintiff about your subpoena, if they don’t end up knowing about it, that’s there problem. Good luck, rt
  13. You said that your BK was filed 5 years ago, what is the SOL in Washington state? Might your alledged loan be out of the SOL? rt
  14. I could be wrong, please correct if this info is not correct, but, I think you need more than just the stamp. I think the Clerk, or asst Clerk, needs to sign it as well so even if your court has a stamped copy available for download you will still need to go the a Clerks office to get it signed. rt
  15. A big huge CONGRATULATIONS! Good Job, although we'd really like to hear the 18 minute, word for word, play by play! rt
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