easy619

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Everything posted by easy619

  1. Here's what I came up with for a Notice of Designation (put on pleading paper) NOTICE IS HEREBY GIVEN pursuant to Rule 8.843 (Transmitting exhibits). Appellant requested several original exhibits that were admitted in evidence at trial to be included in Clerk's Transcript. Appellant was notified by the court that the original exhibits could not be located. Please note that conformed copies are not available, as the original trial court exhibits were never stamped nor filed. The following trial court exhibits are attached, as provided to appellant by plaintiff at trial: -Plaintiff's #5 Bill of Sale -Plaintiff's #6 Affidavit of Martin Lavergne -Plaintiff's #7 Field Data Sheet I have also attached a copy of the request for the exhibits made by [CLERK's NAME], Clerk of the Superior Court.
  2. Yes! It was the rule 8.843 I was looking for. I don't think I'm required to file a motion in this situation, as it was an "original exhibits that were admitted in evidence, refused, or lodged but that were not copied in the clerk's transcript under rule 8.832 or included in the original file under rule 8.833." So I must serve and file a notice in the trial court designating such exhibits. I don't think another Notice Designating Record on Appeal form would be appropriate here, and may cause confusion. I think I'll just type up my own notice on pleading paper and attach the docs with that, and file and serve. I did find this article while looking around, has some good advice on California appeals: http://www.ehrlichfirm.com/articles-briefs/basics-of-california-appeals.html Thanks for helping clear that up @ryanex
  3. The documents I'm submitting are court exhibits from trial, so they were never stamped or filed . I'm kind of surprised they don't have them, shouldn't exhibits used in court to win the trial be kept as part of the record? I have the copies of the exhibits provided to me at trial, I kept them in my trial folder. They're not filed or stamped, but they have an exhibit number printed on them. The code cited by ryanex deals with an appendix, which is a form of record put together by the appellant instead of the clerk, but they don't have to be conformed copies, because they were never conformed in the first place. I guess I'll just submit the docs to the appellate division along with a letter stating what they are and a copy of the letter from the trial clerk requesting I submit the docs if I want them to be included. Thanks for helping to look around @RyanEX I thought I had read something concerning this exact situation where a doc is missing from the trial courts records, but I can't seem to find it again.
  4. Meanwhile, the Clerks Transcript is soon to be filed, no opposition to my revised Statement on Appeal. However, a few exhibits from trial that i requested be submitted were unable to be located. I have copys of them from the trial, but am unsure of how to submit. I received a letter from the clerk stating to submit the conformed (confirmed?) copies of the documents to the appeals division within a week. I have been scanning the title eight rules for info on this, but my eyes are failing me. Anyone care to browse through and help me find something? Best I've found is to submit the documents with a copy of the request for the docs. I'm just wondering if I need to prepare a more official filing, on then just sending a letter stating that "here are the docs requested by the clerk to complete the file, the request is attached hereto". I also wonder if this needs to be served on respondent as well, giving them a chance to object or something. But the docs are the ones they provided me in court, with court exhibit numbers printed on them.
  5. I wrote a somewhat lengthy reply in your thread longstand.
  6. Hey there @longstand Sorry to hear your friend lost their case here in SD. I've heard we have some good judges, but also witnessed that some may not be very debtor friendly. As you've already learned, your friend doesn't have a strong case for appeal, as you must object to things in order to create a (possible) error in application of law when your (possibly correct) objections are overruled. Not to say appeal is not an option, but it may not be very worthwhile without an argument that an appeals panel would at least have to consider. As far as wage garnishment, If your friend makes minimum wage, then the head of household exemption may not be necessary. Under California law, For any given workweek, creditors are allowed to garnish the lesser of: 25% of your disposable earnings, or the amount by which your weekly disposable earnings exceed 40 times the state hourly minimum wage (now 9$). So, in other words if you make minimum wage, they can't touch anything. Also, it says DISPOSABLE EARNINGS, which are what's left AFTER employer makes required deductions. So, your take-home amount each check, after taxes, is protected up to 40hrs x 9$ (minimum wage), or 360$ a week. You can also file for exemption (not sure how likely to be granted). Also if seeking to avoid at all costs, you could possibly make payment arrangements with the JDB, though many would argue that's not wise, and to only pay them in a pay for delete type deal. In my case, JDB was willing to accept around 55% of the judgement amount as settlement AFTER that had already won, so they will play ball, especially with someone who doesn't earn alot or own property (like me, or maybe your friend as well.). I'm sure they would probably accept less than that if offered, maybe as little as 40-30%. If I lose my appeal, I plan to offer them what it would cost me to file BK, or they can kick rocks and get nothing. So, your options may boil down to 1) appeal - wouldn't advise, don;t have much of a case without objections. 2)settlement - maybe the best option, if it is even an option financially. 3)BK - maybe not worth it depending on judgement amount, overall financial situation, othet debts, ect. Speak with an attorney about this one, or a financial advisor at your bank or something. 4)Do nothing/try to fight avoid wage garnishment and string it out. Interest will accrue, but maybe you can save up money to settle. Those aren't your only options, but some of them. I would consider reaching out to the jdb, explaining your earnings situation, and how it is exempt, and that you would like to pay, get a ball park figure, and try to save up, offer them less. They are a business. If they know they can';t garnish your wages, they won't pay the 1000$ or so it costs them to file and obtain an order for garnishment if it can't be enforced. They will sit on the judgement and let it rack up interest, waiting for you to become more able to pay them.
  7. We haven't made it to briefing yet. Though if they neglect to file a brief, this could be useful.
  8. I think you hit the nail on the head. I think they've already had to send more rent-a-lawyers to hearings, as well as sending one of their higherup in-house lawyers to multiple hearings and trials, bringing a witness (Who they had to pay), they've spent far more than they wanted or planned to. As I understand, appeal filings cost for both sides, their first doc filed will cost them around 300-400 if i remember correctly. so I think their proceeding with caution and trying to avoid spending (or working on) my appeal until they absolutely have to (briefing). Though, they wouldn't have much reason to argue with my proposed statement as it is a valid reflection of trial. The issue is whether a majority of a panel of appellate division judges will agree that the trial court erred in overruling my objections to non-code compliant actions by plaintiff.
  9. I was correct more or less. After some confusion (the clerk wasn't sure why the hearing had been called, had to call around) and plaintiff failing to show (big surprise), the judge ordered that I change my testimony from Q and A form to a narrative summary, and also to remove references to motions and objections and other trial procedures from the testimony section, as there is a separate part for motions. There was also a part where I had marked there wrong box. The clerk apologized, saying the hearing probably wasn't necessary, and the these proposed statements were very new to them, as the court nixed civil unlimited court reporters a year back. Overall the clerk was very friendly and helpful to me as he had been throughout the litigation. The judge was also extremely professional, I was uncomfortable going before the judge whose ruling I'm challenging, but judge seemed impartial. I've reformatted my statement, which by code must be re-submitted within 10 days of the hearing, and will have served/file it to plaintiff/court later this week. Plaintiff and Judge will again have chance to object or oppose to the statement, which I would then have to modify or object to the changes. If everybody is ok with the statement, then the trial court will soon supply the appellate division with the full appeal file, and the briefing schedule will be set then. So, the lesson is if you're doing a proposed statement on appeal, don't submit your testimony records in Q and A format if there was no court reporter.
  10. It is a hearing on my proposed statement. appeals rules title 8.37 D (2)No later than 10 days after the respondent files proposed amendments or the time to do so expires, a party may request a hearing to review and correct the proposed statement. No hearing will be held unless ordered by the trial court judge, and the judge will not ordinarily order a hearing unless there is a factual dispute about a material aspect of the trial court proceedings. Seeing as plaintiff filed no opposition to my proposed statement, this means that it is the judge who feels there is a factual dispute. I believe it is over my recount of the witnesses testimony, more specifically the question and answer format I submitted it in. The clerk had called me asking if this was a verbatim transcript or my account, and this call was a day or two before the hearing was scheduled. So, I'm guessing they feel the Q&A format i submitted in may be misleading as to being a verbatim transcript and not merely a condensed summary. The judge may possibly oppose the factual nature of some of the testimony as well, but I don't see why I didn't make anything up, I took notes of the witnesses testimony at trial and made my testimony summary off of that. Another important rule for me is: (5)The trial court judge must not eliminate the appellant's specification of grounds of appeal from the proposed statement. This will help me defend my statement. Otherwise, the judge can make any modifications or corrections they see fit. I'm not looking forward to going before this judge again, and I can't imagine I'll get a warm welcome while challenging the courts ruling. I also noticed another midland trial scheduled right before my hearing, i might pop my head in and see how it goes.
  11. There's lots of RFAs laying around here somewhere. Just put requests that will absolutely destroy their case if they fail to respond, things like "admit that JDB does not own XXX's account, admit that JDB never bought the account, does not have documentation, bill of sale, records of sale are falsified, affidavits are fraudulent, that the JDB's name is Silly Sally Junk Debt and that they believe the world is flat. Joking of course at the end there, but you get the idea. Ask them to admit to things that just take their case apart piece by piece, each supplied piece of evidence, each requirement to prove the cause of action in your suit. I never sent RFAs in my case, but wish i had. I think it should be a good rule of thumb to send rfa's with document requests, so that way when the jdb messes up (As they often forget things), the case can be (maybe) put down quicker.
  12. Hearing is coming up very soon. I'm not really sure how to prepare for it since this seems to be uncharted waters. THere's no official form or anything for me to file, i've already filed my statement on appeal which is what the hearing is over. I'm assuming the judge doesn't like my recounting of the witnesses testimony, although plaintiff never opposed it. I think my best bet is to continue to study the code regarding the appeal process and see what the judge wants me to do in order to get the record approved.
  13. The witness must be available for service personally. an "authorized agent" would be improper service. I would still MIL citing target v rocha, the witness wasn't personally available for service as required by statute. Server did screw up though.
  14. From what I gather, it's simply a document specifying the amount of judgement, interest, ect, which is used to further pursue collections. Is this correct?
  15. I am appealing my judgement. I have a thread detailing the requirements and process here if you'd like some info.
  16. Indeed Mr. Brown is capable of putting together a decent case. But sounds like you have a CCP98 dec, which is much better. I didn't get a chance to read through your thread yet, but hope your judge's name doesn't rhyme with crapp! Good luck.
  17. @calawyer I don't think that letter is in my thread, i decided to forego sending it (Didn't make much of a difference because their 2nd ccp96 statement was accepted anyways..). @Rookie I would just sent send something like this: Dear JDB Lawyer, This letter is to inform that plaintiff's supplied CCP 96 statement of witnesses and evidence to be used at trial lists the testimony of a "Custodian of Records". CCP 96 specifically states that all witnesses who will be able to be called at trial besides for impeachment purposes must be identified by name and address. "Custodian of Records" is not a name or address, and hence complies with neither of theses requirements. Defendant intends to object to the calling of this "Custodian of Records" under CCP 97 at trial. CCP 96 also states that additional, supplemental, or amended responses to a CCP 96 request are not permitted unless ordered on a noticed motion. Have a nice day. I debate about leaving out the part on additional responses not being permitted, your call. If you leave it in, it really doesn't leave them any options besides to perhaps file a motion for an order allowing an amended response. But they know this anyways. Also, the "have a nice day" is optional as well, I don't know if snide comments and gamesmanship are really a good idea. But I know I couldn't help myself.
  18. Hey rookie, I just sent you a PM. Plaintiff in my case sent a very similar CCP 96 response. Hopefully you have a different judge than I did, or else you may need a change of strategy. It's important to note that you must object to the witness under ccp 97, and that plaintiff is not permitted to a submit a supplemental or amended response to ccp96. But I would prepare as though the witness will show and be permitted to testify anyway.
  19. There will be a memorandum of points and authorities in my brief, but I haven't done much on it yet, seeing as the briefing won't be scheduled until after the proposed statement hearing, which isn't for a few months.
  20. I think @Determined1 and @Harry Seaward both have great points on opposite ends of the spectrum here. I also fought the hard fight in my case, did what I needed to prove my points at trial, and still lost. I think some of these JDB lawyers are a lot better than some of the rent a lawyers they sometimes send, and they will not have a problem putting together enough evidence to satisfy many judges. The judge is such a key factor. I don't think anyone is telling the OP to give up, but to fight smart. I agree with the issue of appeal being important, as that is only available after trial, not after arbitration. I think it is also an issue with the lack of rules of evidence in arbitration (As i've seen firsthand how the rules of evidence even in court can be handled suspect). You can fight them, and you can win. But don't think it's in the bag, don't assume the judge will agree with your argument, or that the JDB lawyer is bumbling fool. And I completely agree that different states, different courts, different plaintiffs, different judges, can all call for different strategies.
  21. @Credator it is indeed an appeal of a limited civil case, which will be heard by the appellate division of the superior court. Appeal filing fee is 225. Maybe I confused the respondents first filing fee, and that is only appicable in court of appeals, not appelate division of superior court. Not sure. Either way, it's interesting that plaintiff(respondent) didn't see fit to oppose or propose any changes to my statement. @doublethefun9941 great post, thanks. I'll have to really dive into this settled statement case law and see if I can find a few things to help defend myself/my statement from the judge. I can't imagine this will be a fun hearing, as the judge (who thought I was a know it all before) probably hates me now, and does not want me to win in appeals.
  22. True. But then I don't see the need for the hearing, the other side didn't request it. They didn't even propose any changes to my statement.
  23. I cross examined a JDB witness in my case. I lost, but I thought I did well enough to win. I posted a summarized transcript (not word for word correct) of the testimony in my thread here. Just in case you'd like to see how a jdb witness may possibly respond.
  24. In my case plaintiff also brought a witness, foregoing ccp98 completely. I thought I did a good job cross examining, but judge similarly overruled all of my objections. If you're interested in appeal (and I think you should be) I have filed appeal in my case, and have a thread detailing the process and how to get started.
  25. Yes, the trial judge must approve the statement on appeal. I filed the statement in mid february, never heard anything from plaintiff nor court. I spoke to judges clerk the other day, he said the statement was under review. I checked the courts ROA today and saw the hearing scheduled. here is the code concerned: (d) Review of the appellant's proposed statement (1)Within 10 days after the appellant files the proposed statement, the respondent may serve and file proposed amendments to that statement. (2)No later than 10 days after the respondent files proposed amendments or the time to do so expires, a party may request a hearing to review and correct the proposed statement. No hearing will be held unless ordered by the trial court judge, and the judge will not ordinarily order a hearing unless there is a factual dispute about a material aspect of the trial court proceedings. (3)Except as provided in (6), if no hearing is ordered, no later than 10 days after the time for requesting a hearing expires, the trial court judge must review the proposed statement and any proposed amendments filed by the respondent and take one of the following actions: (A)If the proposed statement does not contain material required under ©, the trial judge may order the appellant to prepare a new proposed statement. The order must identify the additional material that must be included in the statement to comply with © and the date by which the new proposed statement must be served and filed. If the appellant does not serve and file a new proposed statement as directed, rule 8.842 applies. (B)If the trial judge does not issue an order under (A), the trial judge must either: (i)Make any corrections or modifications to the statement necessary to ensure that it is an accurate summary of the evidence and the testimony of each witness that is relevant to the points which the appellant states under ©(1) are being raised on appeal; or (ii)Identify the necessary corrections and modifications and order the appellant to prepare a statement incorporating these corrections and modifications. (4)If a hearing is ordered, the court must promptly set the hearing date and provide the parties with at least 5 days' written notice of the hearing date. No later than 10 days after the hearing, the trial court judge must either: (A)Make any corrections or modifications to the statement necessary to ensure that it is an accurate summary of the evidence and the testimony of each witness that is relevant to the points which the appellant states under ©(1) are being raised on appeal; or (B)Identify the necessary corrections and modifications and order the appellant to prepare a statement incorporating these corrections and modifications. (5)The trial court judge must not eliminate the appellant's specification of grounds of appeal from the proposed statement. (6)If the trial court proceedings were reported by a court reporter or officially electronically recorded under Government Code section 69957 and the trial court judge determines that it would save court time and resources, instead of correcting a proposed statement on appeal: (A)If the court has a local rule for the appellate division permitting the use of an official electronic recording as the record of the oral proceedings, the trial court judge may order that the original of an official electronic recording of the trial court proceedings, or a copy made by the court, be transmitted as the record of these oral proceedings without being transcribed. The court will pay for any copy of the official electronic recording ordered under this subdivision; or (B)If the court has a local rule permitting this, the trial court judge may order that a transcript be prepared as the record of the oral proceedings. The court will pay for any transcript ordered under this subdivision. (Subd (d) amended effective March 1, 2014.) (e) Review of the corrected statement (1)If the trial court judge makes any corrections or modifications to the proposed statement under (d), the clerk must serve copies of the corrected or modified statement on the parties. If under (d) the trial court judge orders the appellant to prepare a statement incorporating corrections and modifications, the appellant must serve and file the corrected or modified statement within the time ordered by the court. If the appellant does not serve and file a corrected or modified statement as directed, rule 8.842 applies. (2)Within 10 days after the corrected or modified statement is served on the parties, any party may serve and file proposed modifications or objections to the statement. (3)Within 10 days after the time for filing proposed modifications or objections under (2) has expired, the judge must review the corrected or modified statement and any proposed modifications or objections to the statement filed by the parties. The procedures in (d)(3) or (4) apply if the judge determines that further corrections or modifications are necessary to ensure that the statement is an accurate summary of the evidence and the testimony of each witness relevant to the points which the appellant states under ©(1) are being raised on appeal. (Subd (e) amended effective March 1, 2014.) (f) Certification of the statement on appeal If the trial court judge does not make or order any corrections or modifications to the proposed statement under (d)(3), (d)(4), or (e)(3) and does not order either the use of an official electronic recording or the preparation of a transcript in lieu of correcting the proposed statement under (d)(6), the judge must promptly certify the statement.