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CCP 98 Declaration; Can we object?

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Thank you Seadragon,

It looks like you want me to Subpeona the affiant today, but the trial was yeasterday.

The judge is giving us a week to file some case law as to why the affidavit should/shouldnt be admissible.

I like the example you gave and will use them...

My question is, Should i still Subpeona the affiant even after the trial,

One thing I did notice is on the CCP website under section 98 it reads

"(a) A copy has been served on the party against whom it is offered

at least 30 days prior to the trial, together with a current address

of the affiant that is within 150 miles of the place of trial, and

the affiant is available for service of process at that place for a

reasonable period of time, during the 20 days immediately prior to

trial."

So if there is "addresses" on the affidavit but the "current address" is outside 150 miles, do I have standing there?

Thanks for all you help

OhBoy!xhitwallx

They mean the affidavit address I am afraid. Subpoena them Monday and write a brief using the elkins and others. Make the standing issue first. subpoena them and use the sherriff's look and see if someone else tried to subpeona them also look for the affiant on facebook and see if they were even in California for service.

get cracking I will help by Monday you will be ready to eat their heart for breakfast.

PM the court name and I will look for cases where someone supoenaed the affiant in the past 30 days and the witness wasn't there.

Edited by Seadragon

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What are your suggestions when the declarant clearly advises they reside out of state, to pleased subpoena them at the Plaintiff's attorney which is within the 150 miles radius, and also clearly advises that they WON'T be there but they give authorization to accept on their behalf?

If this fails under CCP 98 what is the recourse??

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for the ccp98 rule.

we need to concentrate on the declarations are not allowed at trial tack, outlined in the Elkins decision

declarations in lieu of live testimony are only for certain motion matters. Not for a contested trial. Subpoenaing is the vital step to make exclusion necessary.

dont forget the other reasons: Lack of personal knowledge, hearsay not in compliance with the business records exception, ijudicial officermproper foundation, and others which will vary.

and for the out of state affiant the court has no jurisdiction if the declaration is not sworn in front of a person allowed to administer oaths in the state in which it is made. so if it is not sworn under CCP 2015.5 or in front of a judicial officer or notary then it is an inadmissible out of court statement.

Edited by Seadragon

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you are suggesting to subpoena the declarant at Plaintiff's address and let someone else accept on their behalf, correct?

Also, I don't see where it states that CCP 98 is for motions only and not trial or that it has to be notarized or sworn if from out of state. It does have the "I declar under penalty of perjury that the foregoing is true and correct under the laws of the State of California" but nothing else. No notarization, nothing.

This persons declaration is riddled with issues least of all that they are the authoized agent of the Plaintiff by their own admission and signed their declaration with this 'title'. It's got hearsay written all over it! And CCP 98 says right within it, "To the extent the contents of the prepared testimony would have been admissible were the witness to testify orally thereto, the prepared testimony shall be received as evidence in the case". It wouldn't be admissible because they don't have first-hand, personal knowledge.

If I subpoena and they don't show up then none of the testimony is admissible right/

However in doing research this person does sometimes show up so...

Edited by mommamia3

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They mean the affidavit address I am afraid. Subpoena them Monday and write a brief using the elkins and others. Make the standing issue first. subpoena them and use the sherriff's look and see if someone else tried to subpeona them also look for the affiant on facebook and see if they were even in California for service.

get cracking I will help by Monday you will be ready to eat their heart for breakfast.

PM the court name and I will look for cases where someone supoenaed the affiant in the past 30 days and the witness wasn't there.

Thank Seadragon,

I have never done a subpeona, is there a ready made form where I can put her name and serve, or do i have to write out a pleading paper to serve?

Will this work since the trial is over? Thanks.

Also, I cant PM yet, as Im too new and i dont have 10 posts yet. Is there an alternative?

-OhBoy!

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You have spent a lot of time helping fellow Californians here. Do you have a PayPal account so we can make donations?Your kindness is worthy of praise and compensation.

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for the ccp98 rule.

we need to concentrate on the declarations are not allowed at trial tack, outlined in the Elkins decision

declarations in lieu of live testimony are only for certain motion matters. Not for a contested trial. Subpoenaing is the vital step to make exclusion necessary.

dont forget the other reasons: Lack of personal knowledge, hearsay not in compliance with the business records exception, ijudicial officermproper foundation, and others which will vary.

and for the out of state affiant the court has no jurisdiction if the declaration is not sworn in front of a person allowed to administer oaths in the state in which it is made. so if it is not sworn under CCP 2015.5 or in front of a judicial officer or notary then it is an inadmissible out of court statement.

Hold on a minute.

Elkins cites the general rule. But there are exceptions. CCP 98 is one of them. The legislature has carved out a specific situation where affidavits will be admissible in trial. BUT YOU HAVE TO FOLLOW THE STATUTORY PROCEDURE.

CCP 98 says you must provide “a current address of the affiant that is within 150 miles of the place of trial, and the affiant is available for service of process at that place.” A subpoena must be personally served. CCP 1987 (a) (“the service of a subpoena is made by delivering a copy, or a ticket containing its substance, to the witness personally”.) This affidavit did not comply because it did not give you an address where personal service could be accomplished.

That is further demonstrated by the fact that you were given five addresses. That simply demonstrates that the witness will NOT be there (unless they are claiming she can be at 5 places at once). And it is completely insufficient to "designate" an attorney or other person to accept service. FOr one thing, the affidavit probably does not designate someone. And the Code doesn't allow it. As quoted above, the subpoena must be personally served.

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Hold on a minute.

Elkins cites the general rule. But there are exceptions. CCP 98 is one of them. The legislature has carved out a specific situation where affidavits will be admissible in trial. BUT YOU HAVE TO FOLLOW THE STATUTORY PROCEDURE.

CCP 98 says you must provide “a current address of the affiant that is within 150 miles of the place of trial, and the affiant is available for service of process at that place.” A subpoena must be personally served. CCP 1987 (a) (“the service of a subpoena is made by delivering a copy, or a ticket containing its substance, to the witness personally”.) This affidavit did not comply because it did not give you an address where personal service could be accomplished.

That is further demonstrated by the fact that you were given five addresses. That simply demonstrates that the witness will NOT be there (unless they are claiming she can be at 5 places at once). And it is completely insufficient to "designate" an attorney or other person to accept service. FOr one thing, the affidavit probably does not designate someone. And the Code doesn't allow it. As quoted above, the subpoena must be personally served.

That is pure brilliance CALawyer. Thanks.

Now I have to figure out how to file this info with the court so the judge can make his decision "in my favor"!!

Seadragon, mentioned serving the affiant even though the trial is over, I can, but will it make a difference?

I think the Code alone states a single address, not alternative addresses, for affiliant to be personally served.

Also, how do I write this out in "court language"? Pleading paper? I really appreciate all of your help offered, it really lifts some of the stress off when I see you guys helping out in times like this.

I know I sound dumb but I have this so close to being dismissed but it could easily go the JDB way as well. Thanks again for all of your help here.

-OhBoy!

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That is pure brilliance CALawyer. Thanks.

Now I have to figure out how to file this info with the court so the judge can make his decision "in my favor"!!

Seadragon, mentioned serving the affiant even though the trial is over, I can, but will it make a difference?

I think the Code alone states a single address, not alternative addresses, for affiliant to be personally served.

Also, how do I write this out in "court language"? Pleading paper? I really appreciate all of your help offered, it really lifts some of the stress off when I see you guys helping out in times like this.

I know I sound dumb but I have this so close to being dismissed but it could easily go the JDB way as well. Thanks again for all of your help here.

-OhBoy!

Not sure what the judge asked you to do. If you were not given any direction, I would call it a motion to exclude affidavit of ___ or Motion in limine to exclude....

You should put it on pleading paper.

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Not sure what the judge asked you to do. If you were not given any direction, I would call it a motion to exclude affidavit of ___ or Motion in limine to exclude....

You should put it on pleading paper.

This judge wanted me to file some case-law that supports the exclusion of the affidavit by rule of ccp 98...

So some case-law and anything that proves the affidavit should be excluded form the record.

I think the info you gave about the "single address" and the code is good for proving, but would need a case to cite... i can use elkins but I did use that one in trial and he may wamt to see anothter.

Any suggestions?xshotx

I cant say thanks enough!

OhBoy!

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You have spent a lot of time helping fellow Californians here. Do you have a PayPal account so we can make donations?Your kindness is worthy of praise and compensation.

I could not accept money for knowledge I obtained from the Posters who went before me and helped me in my hour of need. I owed a debt of honor to Admin, Calawyer, and every single person on this board.

It is my abiding sense of honor and joy to help out other persons who come here as a credit litigation refugee and then summon up the blood of resistance which is inside every single American. They used legal tactics that even the Taliban wouldn't use and still people helped me not to just win but to understand my rights.

So I could not in good conscience and honor accept money from people who so desperately need it to fend off the wolves. The way to repay what you have learned is to spread the knowledge and advocate like Mehtamar, Calawyer, and every single person who sees a scared rabbit in the courthouse and befriends them and passes along information of this site and the comrades in Credit Litigation arms to help as many as we can.

I am highly honored to know all of you. God bless you each and every one of you.

Edited by Seadragon
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This judge wanted me to file some case-law that supports the exclusion of the affidavit by rule of ccp 98...

So some case-law and anything that proves the affidavit should be excluded form the record.

I think the info you gave about the "single address" and the code is good for proving, but would need a case to cite... i can use elkins but I did use that one in trial and he may wamt to see anothter.

Any suggestions?xshotx

I cant say thanks enough!

OhBoy!

So you would title it Defendant's supplemental brief, like the trial brief but titled that way.

He want's authority for excluding the CCP 98 which was objected to. well the points Calawyer made are very Good. The subpoena would be a nice touch. also a showing that the affiant wasn't in the state during the time is a good point.

Read and understand this case Herrera v. Deutsche Bank National Trust Co., 196 Cal. App. 4th 1366 (Cal. App. 3d Dist. 2011):

this will knock it out of the park. for the same reasons the declaration should be excluded the lack of personal knowledge, the affiant is not a percipient witness, and the Declaration is vague on the affiants true service address. The declaration is excecuted outside of CA and was not witnessed and no oath was taken by an officer of the court in the juridiction it was made.

also to stir the pot a little file a request for continuance of trial.

did the plaintiff rest in this case if not prepare your defence. subpoena the affiant and request the employment history of the affiant, the training of the affiant and the location of the affiant for the 20 days prior to trial.

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C. Testimony vs. affidavits | Reporters Committee for Freedom of the Press

However, California cases also are clear that the trial court may require live testimony at some types of hearings. E.g., People v. Hedgecock, 51 Cal. 3d 395, 415 (1990) (trial court may require evidentiary hearing on motion for new trial in criminal case; distinguishing motions for new trials in civil cases, which must be based on affidavits alone). Moreover, declarations are not admissible at trial in lieu of live testimony. See Rowan v. City & County of San Francisco, 244 Cal. App. 2d 308, 314 n.3 (1966) ("[a]ffidavits being hearsay may not be used in evidence except where permitted by statute and section 2009 of the Code of Civil Procedure permitting their use on motion has no relevance [in trial]" (citations omitted)). Consequently, the subpoenaing party normally will refuse to accept a declaration in lieu of live testimony, and the courts will require the reporter to testify.

Found this news site breaking down the elkins decision in regular language.

http

Mathews v. Eldridge, 424 U.S. 319 (1976) and quoted the U.S. Supreme Court: “Where credibility and veracity are at issue, written submissions are a wholly unsatisfactory basis for decision.”

Evidence Code Section 711.
At the trial of an action, a witness can be heard only in the presence and subject to the examination of all the parties to the action, if they choose to attend and examine.

Evidence Code Section 780
. Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following:

(a) His demeanor while testifying and the manner in which he testifies.

(
B)
The character of his testimony.

© The extent of his capacity to perceive, to recollect, or to communicate any matter about which he testifies.

(d) The extent of his opportunity to perceive any matter about which he testifies.

(e) His character for honesty or veracity or their opposites.

(f) The existence or nonexistence of a bias, interest, or other motive.

(g) A statement previously made by him that is consistent with his testimony at the hearing.

(h) A statement made by him that is inconsistent with any part of his testimony at the hearing.

(i) The existence or nonexistence of any fact testified to by him.

(j) His attitude toward the action in which he testifies or toward the giving of testimony.

(k) His admission of untruthfulness.

Evidence Code Section 1200. (a) "Hearsay evidence" is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. (B) Except as provided by law, hearsay evidence is inadmissible. © This section shall be known and may be cited as the hearsay rule.

Chief Justice George noted that Code of Civil Procedure Section 2009 provides for use of declarations in regards to motions, not trials:

2009. An affidavit may be used to verify a pleading or a paper in a special proceeding, to prove the service of a summons, notice, or other paper in an action or special proceeding, to obtain a provisional remedy, the examination of a witness, or a stay of proceedings, and in uncontested proceedings to establish a record of birth, or upon a motion, and in any other case expressly permitted by statute

My favorite

Justice George said firmly that it is more difficult to go through these hoops and hurdles for pro pers. 75% of all family law litigants in Contra Costa County are in pro per. How can they go through these detailed requirements and lay foundations for exhibits, and then deal with draconian sanctions. The judiciary cannot favor pro per litigants. However, these rules can have a worse impact on pro pers.

Mathews v. Eldridge, 424 U.S. 319 (1976: “Where credibility and veracity are at issue, written submissions are a wholly unsatisfactory basis for decision.” Justice Kennard questioned whether there would be a problem assessing credibility and veracity in a trial by declarations? It is crucial, she said, for a trial court to observe demeanor to determine truth.

I will keep looking

for CCP2015.5

DHEERAJ KULSHRESTHA,

Plaintiff and Appellant,

S115654

v.

Ct.App. 3 No. C041513

FIRST UNION COMMERCIAL

CORPORATION, et al.,

Yolo

County

Defendants and Respondents. )

Super. Ct. No. CIV001803

Edited by Seadragon

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So you would title it Defendant's supplemental brief, like the trial brief but titled that way.

He want's authority for excluding the CCP 98 which was objected to. well the points Calawyer made are very Good. The subpoena would be a nice touch. also a showing that the affiant wasn't in the state during the time is a good point.

Read and understand this case Herrera v. Deutsche Bank National Trust Co., 196 Cal. App. 4th 1366 (Cal. App. 3d Dist. 2011):

this will knock it out of the park. for the same reasons the declaration should be excluded the lack of personal knowledge, the affiant is not a percipient witness, and the Declaration is vague on the affiants true service address. The declaration is excecuted outside of CA and was not witnessed and no oath was taken by an officer of the court in the juridiction it was made.

also to stir the pot a little file a request for continuance of trial.

did the plaintiff rest in this case if not prepare your defence. subpoena the affiant and request the employment history of the affiant, the training of the affiant and the location of the affiant for the 20 days prior to trial.

Hi Seadragon,

I will use this case to cite, where is a good site to review the case? thanks.

I have a question on the subpeona... "subpoena the affiant and request the employment history of the affiant, the training of the affiant and the location of the affiant for the 20 days prior to trial." Is there a format to write this out on the paper? Or is there a form I can complete to make this happen?

ALso, if I am to supeona all these items, will the judge have time to get make a decision by Friday?

Looks like I have some work to do here! Thank you again.

OhBoy!

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Summing up:

1. get a subpoena served pronto

2. Move for a continuance to allow for the subpoena or in the alternative a reset.

3. make the Supplemental brief for the exclusion of the CCP 98.

I feel with a subpoena the court would have to give you a chance. You need to also track down the location of the affiant from trial minus 20 days until now.

Also you sound like the judge is basically doing the same thing to you that happened in Elkins.

Look at this and cite some of the cases in it:

http://www.courts.ca.gov/documents/benchguide_self_rep_litigants.pdf

at page 43 on to about 80.

look up opinions here.

LexisNexis® Custom Solution: California Courts Research Tool

Edited by Seadragon
adding

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Also you sound like the judge is basically doing the same thing to you that happened in Elkins.

Just want to make sure that we are all on the same page here. It is true that, under most circumstances, live testimony is required at trial as opposed to an affidavit. And you have correctly identified many of the reasons for this rule. Affidavits are hearsay. You can't judge the credibility of the witness. And you can't cross examine an affidavit.

But all of this is irrelevant here. As Elkins says, "It is well established, however, that declarations constitute hearsay and are inadmissible at trial, subject to specific statutory exceptions, unless the parties stipulate to the admission of the declarations or fail to enter a hearsay objection." (underlining mine).

Here we have a statutory exception. CCP section 98. And if you read that section, it makes perfect sense. An affidavit is allowed in 2 very specific instances:

1. If the testimony comes from a deposition and the party against whom the affidavit is being used, had the opportunity to cross examine the witness at a deposition. Makes sense. There is no loss of the opportunity to cross examine. Any questions you wanted to ask, you had a chance to ask. That exception does not apply here.

2. You serve the affidavit on the other party before trial and give an address in California, 150 from the Courthouse, where the affiant can be served. Makes sense again. Maybe you read the affidavit and it says only things you do not dispute. You don't WANT to cross examine. But if you do, you can simply serve the witness with a subpoena, the witness will be required to attend trial, and you can ask all the questions you want.

The point here is that the procedure set forth in CCP 98 is an exception to the general rule. It was designed by the legislature to streamline trials in smaller cases while still affording all of the protections that the hearsay rule is designed to safeguard. But the party wishing to avail itself of the procedure must folllow the rules to the letter. Otherwise the protections are lost. Giving 5 address is quite the opposite of identifying a place where the witness can be personally served. And, as one can tell from the affidavit itself, the witness was never present in California during the 20 days preceding trial.

If the affidavit did not comply with 2015.5, this is a separate reason why it should be excluded.

Finally, if the witness has no personal knowledge or recites hearsay in the affidavit itself, this is yet another reason the afidavit should be excluded. Your brief should identify any hearsay statements and object to them on that basis. Same for lack of personal knowledge (like anytime the witness talks about business records that did not originate at his company).

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Just want to make sure that we are all on the same page here. It is true that, under most circumstances, live testimony is required at trial as opposed to an affidavit. And you have correctly identified many of the reasons for this rule. Affidavits are hearsay. You can't judge the credibility of the witness. And you can't cross examine an affidavit.

But all of this is irrelevant here. As Elkins says, "It is well established, however, that declarations constitute hearsay and are inadmissible at trial, subject to specific statutory exceptions, unless the parties stipulate to the admission of the declarations or fail to enter a hearsay objection." (underlining mine).

Here we have a statutory exception. CCP section 98. And if you read that section, it makes perfect sense. An affidavit is allowed in 2 very specific instances:

1. If the testimony comes from a deposition and the party against whom the affidavit is being used, had the opportunity to cross examine the witness at a deposition. Makes sense. There is no loss of the opportunity to cross examine. Any questions you wanted to ask, you had a chance to ask. That exception does not apply here.

2. You serve the affidavit on the other party before trial and give an address in California, 150 from the Courthouse, where the affiant can be served. Makes sense again. Maybe you read the affidavit and it says only things you do not dispute. You don't WANT to cross examine. But if you do, you can simply serve the witness with a subpoena, the witness will be required to attend trial, and you can ask all the questions you want.

The point here is that the procedure set forth in CCP 98 is an exception to the general rule. It was designed by the legislature to streamline trials in smaller cases while still affording all of the protections that the hearsay rule is designed to safeguard. But the party wishing to avail itself of the procedure must folllow the rules to the letter. Otherwise the protections are lost. Giving 5 address is quite the opposite of identifying a place where the witness can be personally served. And, as one can tell from the affidavit itself, the witness was never present in California during the 20 days preceding trial.

If the affidavit did not comply with 2015.5, this is a separate reason why it should be excluded.

Finally, if the witness has no personal knowledge or recites hearsay in the affidavit itself, this is yet another reason the afidavit should be excluded. Your brief should identify any hearsay statements and object to them on that basis. Same for lack of personal knowledge (like anytime the witness talks about business records that did not originate at his company).

It all makes sense CALawyer,

Thanks.

I was able to serve the subpoena to the affiant at the San Diego address on the affidavit but the Process Server had this to tell me:

He talked to the supervisor and said she does not work there and works in a MN office. She isn't serviceable there. The Process server is writing a declaration for me and I will file it with my Motion in Limine to exclude Affidavit in Lieu of Live Testimony.

I still have a question:

Should I file it as a Motion or a supplemental brief? Still not sure how to write this out... I will have to get this done tomorrow and filed by Thursday.

Thanks again for all the help here. You guys have got me riding a good one. I feel like I still have a chance even after I blew it in the trial. :D

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Hello everyone,

I am almost there. Today I serve the subpoena to the affiant and was told by my Process Server she didn't work in the office but in MN where her address is. - Boom!!! The Process Server is writing the declaration for me to file stating this.

So now, I have to put this brief together and I'm unsure how to lay it out. Is there any forms or examples anyone has or can share here so I can follow the layout?

Since the trial has ended I would like to make sure the judge can understand completely what I 'm trying to do to get this affidavit excluded for the record and then case dismissed.

1. Prove the affiant isn't serviceable at the address - DONE

2. Prove that CCP 98 doesn't protect the affiant in this affidavit having multiple addresses - DONE

3. Prove in a citing that this case needs to have live witness testimony and the Declaration in Lieu is not admissible. - DONE

Is there anyting else I'm missing that will push me in to the endzone?

-OhBoy!

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based on the new info and maybe ratchet things up by motioning for sanctions for attempting to mislead the court.

I won't recommend pro pers going for sanctions but issue sanctions can be used to exclude.

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Draft a proposed order to exclude the declaration as well.

Thanks 1stStep,

Is there an example I can follow to daft this? or maybe a line or 2 you can drop so i can have something to follow? Thank you...

I will be writing everything up after work today and filing it with the court tomorrow.

-OhBoy!

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So it'd format like this (and if I'm wrong, someone will jump in):

<Caption>)

)

) PROPOSED ORDER

It is hereby ordered:

Plaintiff's CCP98 Declaration is precluded.

Dated: <Date>

______________

<J. Doe - Type his/her name>, Judge, Superior Court

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