easy619

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Everything posted by easy619

  1. Yes, this. CCp 96 has become my specialty thanks to my appeal. I'm going to share all of my relevant appeal case law with you. There is no case law the expresley intreprets CCP 96, but there is for it's predecessor ccp 1825.1 which was also a request for witnesses and evidence. This case here is where its at for ccp 96 issues: In Border v Kuznetz (1980) 263 cal rptr 881, the appeal court found that trial court did not abuse discretion in denying plaintiff's various motions to relieve him from default in filing a timely (compliant) statement of witnesses and evidence under the former code 1825.1. The sole question was whether these rulings constituted an abuse of discretion. Section 1825.3 and rule 1725 provide that at trial a party may call as witnesses only those persons disclosed in the witness statement and may introduce only physical evidence and documents identified therein, unless relief is granted for any of the causes [103 Cal. App. 3d Supp. 17] specified in section 473. CCP 96 does not permit amended or supplemental statements. They should only be permitted if party can show good cause for being late. IT can only be ammended under section 473, which deals with mistakes, inadvertance and excusable negligance. I have a bunch of case law for this too: Dill v Berquist construction co (1994, 4th dist) 24 cal app 4th 1426, 29 cal rptr 2d 746 the court stated that to support a motion for relief due to mistake, inadvertence, surprise of neglect, moving party must show cause that relief by proving the existence of satisfactory excuse. . In Beall v Munson (1962, 1st dist) 204 call app 2d 396, 22 cal rptr 333, the court stated that "While courts are liberal in relieving parties of defaults caused by inadvertence or excusable negligence and prefer to hear a case on its merits, courts do not act as guardians for parties who grossly careless to their own affairs" Plaintiff is a professional litigant who buys portfolios of accounts in order to use the court system to collect on them. They are fully aware of the codes and statutes governing there practices, or if not they are grossly careless in their affairs. In Baratti v Baratti (1952) 109 call app 2d 917, 242 p2d 22, the court stated that the excusable neglect referred to in this statute is the neglect that the act of a reasonably prudent person under the same circumstance. I would contend that a reasonably prudent litigant in the same circumstance would not submit a statement of witnesses and evidence that did not contain the name and address of the key witness they intended to call, knowing full well that the statute implacably states no amended statements are permitted. Courts have found similarly. In Fidelity Federal Savings and Loan Asso. v Long (1959, 2nd dis) 175 cal app 2nd 149, 345 p2d 568 the court found that the "only occasion for the application of the section (473) is where party is unexpectedly placed in situation to his injury without fault or negligence of his own against which ordinary prudence could not have guarded." I would contend that plaintiff placed themselves in the situation of its own free will. It could have chosen to wait and not submit the statement of witnesses until they knew who they would call. Ordinary prudence for a professional litigant would suggest not filing inadmissible evidence. In Martin v Johnson (1979, 4th distr) 88 cal app 3d 595, 151 cal rptr 816, it was found that the trial court did not abuse its discretion in denying a plaintiffs motion under 473 setting aside a summary judgment for excusable neglect, because plaintiff failed to explain why such an obvious mistake occurred. "Counsel's failure to realize that a filing must contain only admissible evidence demonstrated indifference, which could not be said to be reasonable or justifiable." Filing a statement of witnesses and evidence listing an inadmissible witness, or attempting to submit an amended statement (not permitted by code) demonstrates indifference, which can not be said to be reasonable or justifiable. I think those last two are a real kick in the groin for the JDB arguments on their faulty CCP 96 statements.
  2. Good luck, don't know how missed this thread all this time. I'm about file my opening appeal brief.
  3. This is probably true. Counter this with forcing them to make many appearances, send docs, spend money in general. File a countersuit perhaps if you can. Make them understand the the idea that it WILL cost money, and WILL be a pain in the a$$, they may lose, or if they win, they may face appeal, which costs more money, ect. Make frequent mention (and pay close attention) to FDCPA violations. I swear just sending DV letters with aggressive use of the words FDCPA, lawsuit, the law, my rights, gets results..I've noticed several JDB's sold off some of my alleged accounts after receiving these letters I've sent. Most of them never respond again.
  4. Also, if they try to amend their ccp96 statement to incorporate any different or try to call anyone/anything not listed on it at trial, I've researched oodles of case law for this..
  5. There is case law pointing towards a "custodian of records" being a somewhat antiquated position, and being a "qualified witness" is more relevant (People v Fowzer, ). This is also easier to attack in theory, they may be a "Custodian of records", but does there knowledge actualy qualify them to testify regarding the docs? alot of the usual 3rd party stuff doesn't apply as this is an OC case, correct? regardless of the witnesses supposed job title, you can perhaps prove that that don't know crap and suck at their job, to use crude terms. I'm headed to the law library to dig more into the qualified witness thing as it pertains to my appeal. I'll post anything i find that helps. I also think that it may pay off to really dig into the "ordinary course of business" part. Example; witness shows up, rattles off your account balance to the penny, and the last payment date. Ask, "Can you name those same details for the other 5000+ accounts you service? No, you can't? So you don't know the details of my account in the normal course of business, but rather you studied up and memorized them in preparation for litigation? So, you're committing perjury, which is punishable by jail time, in saying that you know these specific details in the ordinary course of business? ect... You get the idea.. Same goes for mode of preparation, trustworthiness of docs. Look into class action lawsuits against the OC for faulty records, robo signing suits, ect. Prove that they make mistakes all the time, which costs innocent people and the courts valuable time and money. Are they aware their employers are crooks? What percentage of cases that they sue on involved false documentation? Where they personally involve in any of these numerous lawsuits? Where their superiors? Ask the witness about this. I bet they don't feel very comfortable spouting off their nonsense then. These professional liars show up to court to commit perjury at the cost of you, the tax payer and legal system..flip the script..put them on trial.
  6. Rather, you object to the documents as hearsay (which they are). Plaintiff council will argue 1271 exception, supported by either a witness or a 98 dec in place of witness. if They cannot prove the above, the testimony is pointless, and the documents remain hearsay (in theory).
  7. yes. exactly. now look into each of these elements, and what is needed to prove each.
  8. Your Objection looks pretty good, provided you fill in arguments 2 and 3 the same way as 1.
  9. @xavi72 I cross examined a live witness at my trial. I lost, but many would argue I shouldn't have with a different judge. I'm appealing. But you should prepare to cross the witness. Look them up on linked in, facebook, google, ect. Probably not much info, because these people are professional witnesses and hence don't have much info posted online. I posted my cross exam questions in a thread somewhere, check my content. There's a few other good ones on the board too (i borrowed heavily from those). Look into the 1271 evidence code (business records exemption to hearsay) and the requirements. Think of how to disquailify the witnesses knowledge. Are the witnesses listed on the ccp 96 statement listed by name and address? IF not object under ccp 97. Being an OC it will be harder to beat their evidence and witnesses. Look into attacking each piece of evidence individually, the witnesses qualification to testify.
  10. This is good advice. I went overboard on my opening statement, and I think that ticked the judge off and get things started on the wrong foot. Plaintiff didn't give an opening statement. If they don't, I wouldn't either. I would advise saying as little as possible, besides objecting of course.
  11. @xavi72 are the 5 legal representatives listed by name and address? This is a requirement for ccp 96. Also, as others have mentioned, you don't need (or want to) subpoena. You only subpoena if they try to use CCP98, to disqualify the testimony if they aren't available for the subpoena.
  12. @tastycake they brought a witness to my trial. Not a ccp98 delcarant though. I fumbled my code #s and mentioned ccp98 at case management conference, i think plaintiff knew i would hammer their 98. Long story. There is no need or reason to subpoena witnesses listed by name on the statement, they are allowed to testify if the show up. If you subpoena the ccp98 dec and they aren't available, that's out (hopefully, if properly argued with target v rocha)..but they are totally allowed to call the witnesses allowed by name. Just to be clear, in case you serve the 98 dec and they aren't there, they can still call the other listed witnesses. This part here: They list eight names that they say are custodians of records that they may call. they say they can't know the identity of the individual who will be available to testify until approx. 10 days before trial. Getting smarter...JDB listed a "person most knowledgeable" instead of listing of 10 possible names for my case...and i'm about to hammer them on appeal for it. I would go the serve the 98 declarant/ then MIL route for that part. As for the 10 witnesses listed, there is barely shred of case law supporting the idea of witness statements being timely/compliant, nothing to do with the # of witnesses, trust me, i beat the pavement on ccp96/96. I would do some quick research on all 10 witnesses listed, see where they live (might they show?) linked in accounts (professional experience? worked for OC?) and prepare to cross any/all of them. there's lots of good qualified witness caselaw (if you judge will hear it) regarding 3rd party records. Unlikely they will send anyone, but it is possible and does happen. And come trial time, preserve that record! Look into how much a court reporter costs, if limited civil trials are recorded, if you're allowed to record the trial. Object to everything they offer. In writing, with motions, MILs, trial brief, orally at trial of course. If no reporter, ask the clerk to make note of your objections in the trial minutes as they happen during trial. JDBs rarely have a solid case; don't let them get away with a goddamn inch. @Anon Amos fkn A do it for the dog. JDB's are lower than the fleas pestering my pup right now, and deserve to be exterminated likewise.
  13. @DaSurfer13 bet you enjoyed the hurricane waves the last month or so. Anyhow, JDB's usually list a UPS store or something as there address, to avoid angry debtors i imagine. They probably used their general "debt collection mail box" as the "Witness" address. Look up a few ccp98 motion in limines and such, use target v rocha, ect. And always object to everything, in writing, orally, in motions, in trial brief, at trial. Preserve that record. Come trial time, consider paying for a court reporter, or if not, ask the clerk to note certain objections and such in the minutes as the trial happens. And them calling and asking to settle is short hand for "we're about to fold, would you do us the favor of folding first?"
  14. Good luck @Harry Seaward ! I'm less than 2 weeks out from filing my Opening Appeal Brief in California. It's good to see board members taking the fight all the way. We need to show these courts that they can't just steamroll pro se/debt cases in general if they feel like it (not that all or many do.)
  15. I'm deep into writing my brief. I'm going to make one more trip to the law library to look deeper into a few things. I'll be posting it for critique early next week, then filing soon after that. I'd also like to share some the case law I've found, which could help bolster fellow posters trial briefs. So, there is basically no cases that expressley interpret CCP 96/97, but there are a few cases on the now repealed ccp 1825.1, the predecessor of ccp 96. It also was a request for statement of witnesses and evidence. And there are two cases that will help me. Basically the only two options plaintiff had to seek amendment of its ccp9 6 statement was to either have shown good faith effort to file timely (which it was on time) or to be granted amendment for a mistake, excusable negligence. This usually requires filing a motion, which plaintiff didn't do. This is where i will absolutely hammer plaintiff, as there is oodles of ccp 473 (the code governing amendment of filings for this reason). I have 7 cases which all support my stance. If i can show the trial court abused its discretion in allowing the amendment of the statement to include the witness, then poof witness was never there. Plaintiff's council's own foot went in his mouth at trial on this one, as he stated the reason for amdendment and it was not because it was a mistake or excusable negligance. It's just too bad the record doesn't implicitely reflect this. I also found some additional evidence code case law, quiflied witness, business records exemption to hearsay. I also plan to hammer them on the best evidence/completeness of evidence for trying to pass off the bill of sale as the governing agreement and withholding (against court order) the credit card purchase agreement. I'm liking the way this appeal brief is taking shape. I'll post all of the case law soon. This whole appeal business is nearing the crescendo.
  16. @calawyer any chance you know where I could get a look at the appellant's brief in this case?
  17. Yes! So De Novo it is for the CCP96 issue. And for the witness authenticating records as well I believe. "However, statutory interpretation and the proper application of a statute are questions of law that are reviewed de novo. (Boy Scouts of America National Foundation v. Superior Court (2012) 206 Cal.App.4th428, 443.) Erroneous introduction of evidence must result in a miscarriage of justice and reversal should be granted only where the reviewing court is convinced that it is reasonably probable that a result more favorable to the Appellant would have been reached but for the error. (Evid. Code, § 353; Brokopp v. Ford" Even though my case was not a CCP98 case, I think I want to cite this case and Target v Rocha as an example of how statutes are meant to be enforced as written in similar debt collection cases.
  18. Here's what I've begun to prepare: LEGAL ERRORSA. CCP 96 / 97 Standard of Review: Abuse of Discretion or De Novo ?- respondent supplied a ccp 96 statement with only witness not identified by name or address- respondent later supplied supplemental ccp96 statement in response to appellant's MIL to preclude witness. respondent never filed a motion or request for supplemental statement.-defendant objected to the entrance of witness/supplemental statement statement both orally at trial and in MIL. Trial Judge overruled stating that defendant was not harmed.How this Prejudiced Defendant at Trial:Plaintiff's entire case hinged on testimony of the witness. When plaintiff supplied a ccp 96 statement not listing a valid witness, defendant made this issue the focus of trial argument and preparation. Defendant assumed that because the code stated the witness would not be admitted if objected to under CCP97, that the witness couldn't be admitted. If plaintiff would have submitted a valid witness on it's first (only valid ccp96 statement), defendant could have had full time to investigate and prepare for the witness, in the time frame alotted by the rules of court. The overrulling of defendants oral and MIL objections to the entrance of the witness under ccp 97 was catastrophic to defendant's ability to defend the case, and caused irreparable harm to the remainder of the trial. B. Third Party Witness Authenticates Business RecordsStandard of Review: Abuse of Discretion. (or De Novo ?)-Witness admitted not having worked OC, nor being familiar with their record keeping.How this Prejudiced Defendant at Trial:Plaintiff's only evidence was admitted as business records based on the witness testimony. Witness disqualifed herself (according to case law). Defendants hearsay objections were overrulled. The wrongful admittance of evidence caused irreparable harm for defendant as this evidence was used to secure judgement. C. Weakness of Evidence (substantial evidence)Standard of Review: Substantial Evidence-bill of sale lacks identifying info-field data sheet created by chase, not midland-supporting affidavit to bill of sale not compliant with ccp2015.5How this Prejudiced Defendant at Trial:Evidence was used to prove standing to sue. Of course I need plenty of supporting case law Off to the law library I go next week. I will be searching the bender guides (and everything else i can find) for CCP 96/97 case law, trial procedure, post trial. I'll post up a rough draft of my brief in a week or two so I can fine tune and then have a week to print/prepare/double check/obsess over before it gets filed.
  19. Here we go! Briefing time. 30 days to submit. I'd like some peoples opinions on something here. When considering an appeal, the appellate court looks first at what the standard of review is for the particular kind of decision made in your trial court case. The primary 3 are: Abuse of Discretion (Any decision that involves the judge using his or her discretion (such as whether to admit certain evidence in the trial) comes under this standard. Abuse of discretion occurs when the trial court judge makes a ruling that is arbitrary or absurd.) Substantial Evidence ( The appellate court just decides whether a reasonable fact-finder could have come to the same conclusion based on the facts in the record.) De Novo (If the issues involve questions of law — like the interpretation of a contract or a statute — the appellate court does not assume the trial court's ruling is correct but looks at the issue from the beginning (de novo), exercising its independent judgment) I believe my case has a little of each. I believe the most appropriate is De Novo or Abuse of Discretion, as the CCP96/97 issue of my objection being overruled seems to be an abuse of discretion. But i would also like the appeals court to consider my objection with it;s own independent judgment. I believe i must indicate what the standard of review appropriate to each issue in my appeal. Here is a list of general brief rules/requirements: Brief Requirements: 1)State nature of action, the relief sought in trial court, the judgement. state that the appealed judgement is final. 2)Provide summary of the significant facts limited to matters in record (referencing clerks transcript) 3)give legal errors (referncing clerks transcript) 4)explain how legal errors hurt me and what appeal court should do FORMATMust have green cover and be bound Include a certificate stating length in words of brief (under 6800) HEADING IN UPPERCASE italicize case names 13 point font, 1 1/2 spaced, numbered pages 1 1/2 inch side margins, 1 inch top and bottom FILING---Serve a copy on respondent, clerk of trial court, and 4 copies to appelate court.
  20. I had been meaning to post this is well; This is (most of my) trial binder. It has all of my cross exam questions, objections, case law, ect. It is, of course, tailored to my case. So if you would like to borrow from it, please do, but remember to only use what applies to your case. Trial Notes.docx
  21. Judge's may give the benefit of the doubt to their fellow members of the bar. If i were you, I would prepare to cross the witness. They would probably not fly out a witness. But they may send a different one from their own backyard. If your judge is willing to grant continuances when you object citing proper code, he may be willing to let other things fly as well. He may settle for any witness they bring,some judges just like to hear the plaintiff's case, rules be damned. Not trying to scare you, but you've fought this far, best be prepared to take it all the way to the mat. They do occasionally send witnesses, it's not a lock that they won't. They brought one to my trial, and the judge thought it was good enough, even though I made all of the proper objections, MIL, and I did a pretty good job of crossing the witness if i say so myself, she said pretty much everything i wanted her to say. Oh, and get a court reporter! It's worth the $, I don't like the way your judge has handled things thus far. Many California courts no longer provide. Ask the clerk about recording the trial as well, might be allowed, maybe not. It sounds like you've done a good job so far, keep it up! Go to trial well prepped, ready to shred a witness if need be. I posted my cross exam summary in my appeal thread, there's some other cross exam questions floating around as well. If i could do it over, I would have went even more overboard with questions. EDIT Here is the link to my cross exam transcript I also just posted some of my trial binder stuff which includes all of my cross exam questions and others i didn't get to use.
  22. Love it. Good job, congratulations! I can hope for a similar outcome. Things are moving along now, briefing schedule will begin soon I would imagine, as the record on appeal is now filed. I imagine Martin Lavergne has "signed" a few million affidavits. I believe my appeal will boil down to whether the appellate panel believes that CCP96/97 is meant to be enforced as written, or if a judge's judgement call can override the (very specifically stated) statute. I will likely be using a lot of the same case law, as CCP 96/97 case law is either non-existent or very hard to locate. I think I will try to bolster my argument by citing some cases where similar statutes were strictly enforced, insinuating that while there may not be binding ccp97 case law, here are numerous cases where appeals judges agreed that statutes are meant to be enforced as written.
  23. They called me a few days after trial offering deals. They will probably be in contact. Although having a judgement gives them all the leverage, they still aren't guaranteed payment.
  24. I like this strategy. A lot. I would advise for any who draws my trial judge in San diego county as well. Maybe in order to ensure a fair trial, you have to take measures beforehand.
  25. Well, I didn't end up having to file the notice of designation, the appellate division clerk told me i could just leave the exhibits, since they were requested by the trial court clerk the notice wasn't necessary, nor is serving on respondent.