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Anon Amos

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Everything posted by Anon Amos

  1. Do not deprive yourself of a well deserved celebration, and I think it's safe to start now, just in time for the weekend. Congratulations, it took a lot of courage, and you did very well.
  2. I think it's Sierra v Hale. Also, Elkins v superior court (hearsay inadmissible at trial (affidavits, declarations).
  3. You are mixing up the 2 statutes which Is very common. CCP 96 Is their list of witnesses and evidence they plan to use at trial. They are just notifying you of who and what it is. You do not have to subpoena anyone here. CCP 98 is them trying to use a declaration/affidavit (hearsay) instead of a live witness at trial. You do have to subpoena the declarant here. They should have given you a name of the declarant and an address for subpoena service within 150 miles from the court and claim to be there for the 20 days prior to trial so you can serve them a subpoena.
  4. Correct form. They can't answer a ccp 96 with a ccp 98 (although they might include it in a ccp 96). They are 2 separate statutes. It would be very unlikely to win a motion to deem admitted if they answered a little late, but I would get started on it. You could send a m&c letter telling them to answer now or you will file the motion right away.
  5. They aren't automatically admitted. You have to file a motion to deem RFA's admitted. Usually you would send a meet and confer letter first, then if they don't respond you file the motion. I missed the part where they asked for more time and still missed the deadline so I wouldn't want to be cutting them any slack either.
  6. The ccp 98 is going to be inadmissible regardless of whether or not they serve it timely because you are going to object to it anyway, and subpoena the witness, and it won't matter if they don't send one. Ryan X is correct about the keyword being "served", I am throwing you off a bit with the time frame. It is "served" and not "received" as I stated. Personally I would respond to it the same way even if it was a few days late.
  7. Yes, you are correct, I was just checking you LOL. You must receive a ccp 98 declaration at least 30 days prior to trial.
  8. Most people do confuse the two statutes, and it's easy to mix them up, but they are two entirely different areas. CCP 98 they are saying "we aren't going to bring a witness but instead we have the witness testimony in this declaration", and in CCP 96 they are saying "this is the witness and evidence we plan to bring to trial against you". Hopefully they don't respond to the ccp 96. Just in case you haven't already, make sure you are counting the 5 days for mail service on these.
  9. This isn't entirely correct. Although you may be objecting to any witness they bring, it probably won't be for anything relating to CCP 98. If you don't receive a CCP 98 then you just don't concern yourself about it. It by no means prevents them from bringing a witness. Affidavits (declarations) are inadmissible in CA except by statute. Elkins v Superior Court. CCP 98 is the statute. If you get a ccp 98 declaration then it's their way of trying to introduce an affidavit (declaration) instead of a live witness at trial. They give you the declaration and 30 days notice to subpoena the witness so that you aren't deprived of due process, if you object to having a declaration instead of a witness at trial. If they don't respond to your ccp 96 witness and exhibit list request; then they can be prevented from bringing a witness to trial because it deprived you of due process to prepare for the witness.
  10. You can send them a reply saying that any witness and evidence you will be using will be for impeachment purposes only. That's all It needs to say. It sends a good message to respond to this, but you really don't have to by law and can ignore it. I personally would send the reply. You can file a written objection to it or you can verbally object at trial if they try to introduce it. That one is a judgment call on your part. Did you send them a ccp 96 witness and exhibit list request?
  11. They don't have to send a ccp 98 declaration, and there are times when they don't. I think you have a good chance to win the case either way. You can't really say what it means for your case because we have seen them not send the declaration and then dismiss the case, and we have seen them not send the declaration and bring a witness instead (although rarely). In any event we have seen people still win (and lose unfortunately) in either situation. You can't really say how it will relate to you (although it saves you $80 on serving a subpoena). I think the only fair way we could say how it relates to your case, (and anyone else's for that matter), is that most of the people who fight the case end up beating it, one way or another. It could simply mean that this particular bottom feeder is tired of its declarations getting poured out of court.
  12. Actually I believe it was what DonnaPoo was talking about, but the cmc stuff no longer applies to you because yours was vacated.
  13. No, don't worry about the cmc stuff, I don't believe this is going to pertain to you . Good job. Don't worry about time out here. It will actually benefit you . If they don't provide you with this response and information, then they can't use it at trial and can't call their witness (when you object). Also, you do not subpoena this witness (only the one from a ccp 98 declaration) I'll pm you later. If anything they did you a favor with their response to your discovery. I would think the trial brief is something to focus on. Keep your eye out for a ccp 98 declaration (that's the ONLY witness you subpoena) There are some solid people here. Keep your chin up, you are doing good!
  14. Unless you have a CMC scheduled, you don not have to fill out any form. If it's not too late, or you haven't done so already, I would send them a ccp 96 request for witness and exhibit list. It is supposed to be sent 45 - 30 days prior to trial. Read ccp 96. There is a simple form for the witness and evidence list request.
  15. Somebody else would have stepped in to help you, but you are very welcome. I would never give up. There's always a chance to beat it, and if not, there's not much difference anyway.
  16. Most likely you can file an amended declaration that can be added to your opposition. Also, send a copy of it to plaintiff.
  17. My apologies, I was thinking it was the MSJ tomorrow and not the mtc arb. Anyway, you are better off. I would just forget about the MTC arb hearing and try to beat the msj. I personally would never have wanted arb in the first place. Your fight now is to beat the msj and get the case to head toward trial. I would consider arb off the table, and any argument needs to be a reason why this needs to go to trial. You need to get the opposition to the MSJ filed (even if it's late) and get on calendar for that hearing.
  18. You could bring an amended declaration with you to the msj hearing tomorrow and see if you can file it. Bring extra copies to hand to the judge and plaintiff while you are at the hearing.
  19. I wouldn't worry about arguing to get into arb, or the mtc arbitration. Concentrate on defeating their MSJ. I believe you filed an opposition to their msj. If you didn't get the language right in your declaration; you are there in person to attest to any personal information that may be missing, and you can try to get a chance to "read it into record" if the judge will allow it. Go over all your material issues and reasons why you should be allowed your day in court with this case and why the judge shouldn't just rule in plaintiff's favor now with the MSJ. I would forget about the arbitration and try to persuade the judge to let this go to trial (rather than just ruling against you and ending it at the msj).
  20. Their evidence can be objected to and thrown out if they are late answering the ccp 96, regardless of whether or not you overnight it or mail it. I would send the BOP now, and then 45 days (calendar days) prior to trial I would send the ccp 96 request. You don't have a lot of time and this will keep things simple.
  21. If they object to the BOP you can send them a meet and confer letter and try to put some pressure on them, or you can go into discovery with some request for production of documents (see ASTMedic's thread for these). It makes no difference whether or not the complaint was verified.
  22. There's probably not much (if anything) you can do to prevent telephonic appearance for a motion hearing, but it's not a big deal for this type of hearing since it's not a trial. You could check your local rules on appearing telephonically and see what it says about possible deadlines to apply. Most likely the judge would allow it to prevent unnecessary expense and feel that you are not prejudiced since it isn't a trial hearing. It would probably be more important to make sure you have all your ducks in a row and every possible reason ready to state for why you should be allowed to arbitrate.
  23. You can file for the fee waiver ASAP, even before you answer, that way if approved it may cover the fee. I would file for the full fee waiver, that way if you don't get it you could try for the partial fee waiver, or the court could just award the partial fee waiver instead. There are places in the fee waiver form (I believe) where you can explain your financial situation and your bills etc.
  24. Make sure you file your opposition to the msj timely (if you haven't already (it's sounds like you may have filed it already) Find any direct relation- same name of card, it's from the same company, the dates appear to be within the time frame of your alleged card, etc etc, there has to be something there The judge won't be able to either. Use this against them. If you can't read any changes to your agreement then it may further what you have. Dispute that it's a new agreement or that you ever received it and question why it isn't legible. These are all triable issues that would need to be heard in court, or arbitration. These are issues of material fact that you need to overcome the msj. You must show that there are issues If the 2005 account tis what pertains to your account and what you are basing your claims on then I would think yes.
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