rikkivs

CCP 98 Declaration CA UPDATE!

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Hello, a few weeks ago I posted a note about CCP 98 Declarations. Many of the larger debt collection firms use them to scam the pro se litigants. A CCP 98 declaration allows written documents in lieu of testimony under very specific circumstances. However, the debt law firms abuse these declarations right and left and in many instances, the CCP 98 declaration is improper. In any event, the question arose what to DO if you get served a CCP98 declaration? Object to it and read this to tell you how.

See this document for a sample of what such a notice ought to look like etc.

This is CCP 98 below:

A party may, in lieu of presenting direct testimony, offer the

prepared testimony of revelant witnesses in the form of affidavits or

declarations under penalty of perjury. The prepared testimony may

include, but need not be limited to, the opinions of expert

witnesses, and testimony which authenticates documentary evidence.

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, provided that

either of the following applies:

(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.

(B) The statement is in the form of all or part of a deposition in

the case, and the party against whom it is offered had an

opportunity to participate in the deposition.

The court shall determine whether the affidavit or declaration

shall be read into the record in lieu of oral testimony or admitted

as a documentary exhibit.

Edited by rikkivs
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BUT if the business is really big and they have more customers than employees, and more customers are defaulting by the day, I don't have an issue with business exception to the hearsay rule. HOWEVER, if they claim to have knowledge of the account, how records are prepared etc. then they should AT LEAST testify under oath via COURTCALL or something!!!

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Seems this would be a violation of your constitutional right to face your accuser.

You cannot cross-examine an affidavit.

That is why the statute says the affidavit is admissible only if 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" (or had her deposition taken). In other words, you can demand that the witness appear at trial so you can cross examine her. That is what Mr. Smith did and Bank of America's witness did not appear. Presumably, the Court dismissed the case because the affidavit was not admissible and the plaintiff therefore did not have enough evidence to prove its case.

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. In any event, the question arose what to DO if you get served a CCP98 declaration? Object to it and read this to tell you how.

See this document for a sample of what such a notice ought to look like etc.

This is CCP 98 below:

A party may, in lieu of presenting direct testimony, offer the

prepared testimony of revelant witnesses in the form of affidavits or

declarations under penalty of perjury. The prepared testimony may

include, but need not be limited to, the opinions of expert

witnesses, and testimony which authenticates documentary evidence.

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, provided that

either of the following applies:

(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.

(B) The statement is in the form of all or part of a deposition in

the case, and the party against whom it is offered had an

opportunity to participate in the deposition.

The court shall determine whether the affidavit or declaration

shall be read into the record in lieu of oral testimony or admitted

as a documentary exhibit.

All you have to do is object at trial, I don't think you have to file a motion, is this correct?

We had a member object as hearsey and testimony was dismissed.

If you file a motion you might bring attention to plaintiffs error and they might have time to correct it or ask for continuence to get the proper info.??

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You have to serve them with a notice to appear and have the witness not show up to get it excluded. If they violate the statute by listing an address in Nevada, for example, I would do a motion in limine to preclude use of the affidavit. Most judges won't bend over backwards to help out a plaintiff who doesn't follow the law.

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The last sentence states:

The court shall determine whether the affidavit or declaration

shall be read into the record in lieu of oral testimony or admitted

as a documentary exhibit

However, the procedure states the following proir to stating the conditions:

the prepared

testimony shall be received as evidence in the case, provided that

either of the following applies:

So even if they violate the conditions a) or B) and you object to it during trial or file a Motion in Limine the Judge can still admit it?

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Here is some information for motion in Limine.

An All Too Common Scenario

It is a Tuesday afternoon and the trial has moved into its third of many weeks. Plaintiff has an

expert witness on the stand and, as is not uncommon during expert testimony, time appears to have

slowed to a crawl. As plaintiff’s counsel takes the expert into a new area of inquiry, the cloud of ennui

that has settled over the courtroom is broken with a vengeance. Defense counsel turns a deep purple,

leaps to his feet, and in a voice at a decibel level generally reserved for small children and banshees,

bellows, “Objection your honor. The question calls for speculation, conclusion, and an improper

expert opinion. The expert is not qualified to opine in this area. Moreover, even if the witness could

testify, she should not be permitted to do so because plaintiff failed to serve the appropriate expert

declaration.”

The judge, after looking wistfully at the clock in the forlorn hope that it will indicate that it is time

to recess for rivaling that of her adversary both in volume and indignation, says, “Defense counsel is

well aware the witness is qualified and the question is well within his expertise. Moreover, we have

complied in full with all expert discovery requirements.”

The judge now has two equally unpalatable choices: (1) recess to allow argument and to permit

himself and his clerks to research the matter, thus earning the enmity of the jurors, or (2) “shoot from

the hip” and hope that if he commits error, the appellate court will, at least, conclude it is harmless. At

that point, one of the lawyers adds insult to injury by saying, “Counsel and I have been arguing about

this issue for months.” On hearing this, the judge looks down balefully and, after idly wondering if the

Supreme Court would find an Eighth Amendment violation if he ordered both counsel boiled in oil,

asks, “Why, if you both anticipated this issue, didn’t one of you raise it before now?”

A Better Idea

What counsel should have done is file a pretrial motion in limine to give the court a chance to give

the issue due consideration. Unfortunately, in practice, motions in limine are often not used or are

used ineffectively. It is not uncommon for counsel to fail to make such a motion and thus increase the

risk of an erroneous ruling at trial or to make what purports to be such a motion, but which is either

improper or has no significance to the outcome of the case, thus wasting the opponent’s and the

court’s time. The motion in limine can be a powerful weapon in the lawyer’s arsenal and may, if used

properly, so weaken the opponent’s case that a favorable settlement or verdict results.

How to Do it Right

Authority for Motions in Limine

The term “motion in limine” refers to motions made shortly before the introduction of evidence at

trial. They are usually filed in an attempt to regulate the introduction of evidence, although this is not

their only purpose. Although motions in limine are commonly used, there is no statutory authority for

them in either federal or state practice.

Neither the Federal Rules of Civil Procedure nor the Federal Rules of Evidence refer to motions in

limine. Rather, the motion derives from the court’s authority to control the trial process. See, e.g.,

Luce v U.S. (1984) 469 US 38, 41, 83 L Ed 443, 448, 105 S Ct 460. Such motions are an accepted part

of federal practice. U.S. v Cook (9th Cir 1979) 608 F2d 1175, 1186.

Although there is no specific authority for the motion in limine in the California Code of Civil

Procedure, Cal Rules of Ct 312(d) recognizes the motion by providing that a motion in limine need

not specify a hearing date because the scheduling of such motions is at the discretion of the trial judge.

In addition, Cal Rules of Ct 981.1, which precludes the use of “local-local” rules in pretrial

proceedings throughout the state, specifically exempts motions in limine. Cal Rules of Ct 981.1(B).

Rule 981.1 recognizes that motions in limine are part of the trial proceedings.

Because Rule 981.1(B) permits local rules relating to motions in limine, many courts have

additional rules regulating such motions. For example, Los Angeles Ct R 8.92 prescribes in some

detail the showing that must be made in support of and in opposition to the motion.

Motions in limine, more than any other kind of motion, are regulated under the court’s

discretionary power to control the proceedings. This places a significant burden on counsel to

ascertain the preferences of the individual trial judge with respect to the timing and form of such

motions.

Purpose of the Motion

A wide range of issues is properly the subject of motions in limine, but the most common use is to

regulate the admission of evidence at trial. If the court can rule on the admissibility of evidence before

the jury is sworn and the trial begins, it is less likely that the jury will hear inadmissible and

prejudicial evidence, thus rendering reversible error less likely.

In this respect, the motion can be a very powerful tool. If, in the scenario described above, the court

excludes the expert’s opinion, it may gut the plaintiff’s case by preventing the plaintiff from

establishing a key element of the cause of action that requires expert testimony. On the other hand, if

the court admits the evidence, it may mean the defense position will crumble. Thus, it is very

important that counsel handle such motions to maximize the court’s opportunity to review, analyze,

and rule on the motion in order to avoid disastrous results.

One tactic that upsets a jury and the judge is the making of constant objections and repeated sidebar

conferences to argue the objections. Motions in limine permit counsel to avoid this problem by having

the issues determined before the jury is seated and when the court has specifically allowed for time to

consider the issues. By avoiding courtroom bickering, the lawyers in the case will appear more

competent and professional to the jurors..

So you can file this a day before the court or even after the trial????

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... second part

Timing of the Motion—Every Judge Is Different

The timing of a motion in limine is flexible. This is where the predilections of the specific court

will come into play. In the federal district courts, the timing of comply with normal notice

requirements for motions and to be noticed for hearing at the pretrial conference.

Make sure you know what the trial judge’s rule is on the matter. If you have not received a standing

order on the matter, inquire about the issue at the scheduling conference. If you have not done that,

inquire of the court clerk well before the pretrial conference so that you are not caught flat-footed. For

example, I am aware of at least one court that takes the position that, in the absence of a specific order

regarding the timing of motions in limine, the time to bring such motions is terminated by the motion

cut-off date set by the court, a date that may be months before the trial date. The timing of such

motions is largely up to the trial judge in the state courts as well. Under Cal Rules of Ct 312(d), the

judge has discretion to set the timing of such motions as well as the manner of service. While this rule

should, of course, supersede any local rules limiting the time in which to bring such a motion, such

rules exist nevertheless. For example, Los Angeles Ct R 7.9(h) requires that motions in limine be filed

with sufficient notice to be heard at the time of the final status conference.

Even though, technically, a motion in limine can be filed right up to, or even after, the day of trial,

the goals of the motion are best served when it is filed sufficiently in advance of trial to give the judge

a chance to consider the motion in detail.

Pocket Briefs During Trial

If it is not possible to bring the motion before trial, the “pocket brief” is another method for raising

issues without delaying the trial, appearing “obstructionist,” or forcing the court to rule without

benefit of adequate briefing. A pocket brief is simply a short brief, usually prepared and filed during

the trial, to advise the court on a discreet point of law.

There is no statutory basis for pocket briefs (although in state practice, such a brief may be deemed

a motion in limine under Cal Rules of Ct 312). Thus, it is generally a good idea to first advise the

court of the issue and of counsel’s desire to file a pocket brief.

The advantage of the pocket brief is basically the same as that of the motion in limine. By

preparing a brief rather than relying on an oral objection at trial, counsel insures that the arguments are

clearly stated in the record, both to assist the trial judge and to make the issue clear for purposes of

appellate review. The pocket brief also helps avoid the problem of interfering with the orderly

progress of the trial.

Get a Ruling on the Motion

The goal of the usual motion in limine is to regulate the admission of evidence at trial. If the judge

makes a pretrial ruling, all counsel are bound by that ruling for the balance of the trial. If the evidence

is excluded, it may not be mentioned in trial or in argument and doing so may constitute grounds for

mistrial and for reference to the State Bar.

For several reasons, however, the judge may decide not to make a pretrial ruling. First, the court

may need additional time to research the issue. Second, frequently issues that appear to be critical

before trial never actually develop during trial. Finally, the court may want to see if the context in

which the evidentiary issue finally does arise is the same as that suggested by the parties in the

motions in limine.

If the court does not rule immediately, there are a number of points you must consider. First, ask

the court to clarify whether the evidence may be referred to before the ruling is made, e.g., in the

opening statement. Normally, the court will order that reference not be made to the evidence until a

ruling is made. Second, at the point in trial when you intend to refer to the evidence, make sure you

get a ruling on the deferred motion.

Finally, if the court does not rule, the evidence is not introduced, and no ruling is obtained, counsel

may not raise the evidentiary issue on appeal. In this context, be careful if the court’s pretrial ruling is

anything less than unequivocal. For example, if the court indicates that the evidence is excluded

without prejudice to a further showing when counsel wants to introduce the evidence, counsel should

seek that further ruling in order to preserve the issue.

Common Mistakes to Avoid

There are some common mistakes that counsel make in bringing motions in limine:

1. Failure to meet and confer before filing the motion. A motion in limine is subject to the rules

applicable to motions generally. This includes the requirement that counsel meet and confer. See CD

Cal Local Civ R 7–3; Los Angeles Ct R 8.92(a)(2). It is very frustrating for the judge and his/her staff

to work up a motion only to have the other party indicate it has no intention of offering the evidence to

which objection is made. I, and many other judges, will not consider a motion in limine absent an

indication that counsel conferred before it was filed.

2. Filing a motion on an obvious point that can be dealt with quickly at trial. Do not file a

motion in limine to exclude evidence that is clearly not admissible and that can be dealt with quickly

if the attempt is made to offer it. should be dealt with through the meet-and-confer process.

3. Using a motion in limine as a substitute for a summary judgment motion. A motion in

limine, although it may have the effect of foreclosing critical such a motion. See, e.g., Los Angeles Ct

R 8.92(B). Motions for summary judgment are subject to very specific rules. See Fed R Civ P 56; CCP

§437c.

4. Using a motion in limine to raise discovery issues that should have been raised before the

discovery or motion cut-off. A motion in limine deals with the admission of evidence—it is not a

late-filed motion to compel discovery. I often get motions in which a party seeks to have evidence

excluded because of some asserted violation of the discovery rules that could have been rectified by a

motion. A motion in limine to, in effect, assert a late-filed motion to compel is improper.

Preparation to Avoid Exasperation

There are few things that judges dislike more than surprises at trial. When parties raise complicated

issues in the heat of battle in front of the jury, the court is faced with an unappealing option: stop the

trial to allow the parties to argue and, possibly, to undertake requisite research, or continue with the

trial and try to make a ruling on limited information.

Remember, as counsel, you have been living with the issues in the trial since the inception of the

case. In preparing for the trial, you have spent hours analyzing and preparing the evidence, including

the admissibility of the evidence, objections to it, and responses to objections. You may have spent a

good deal of time arguing the issues with opposing counsel as both sides staked out their trial

positions. Having done that, it makes no sense to present the issues to the court spontaneously through

objections in the middle of trial.

On the contrary, when you make the motion in limine, you give the judge a chance to derive the

benefit of the extensive research and analysis you have done. Even if the judge does not rule on the

issue before trial, he or she has been sensitized to it. The judge will be listening to the developing trial

with the issue in the back of his or her mind. Thus, if the issue does arise during the trial, the judge

will be prepared to make a well-reasoned ruling that is likely to withstand appellate review

http://ceb.com/reporter/freeAccess/articles/cvart805.pdf

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on the 'threshold of trial' thus, an hour before trial or a day before trial one can file a motion in limine. Your local rules of court and local rules of civil procedure are the authority on time lines for filing such motions. In California collections cases, motions in limine are usually brought because the Plaintiff has not been cooperative and the Defendant wants evidence excluded subject to CCP 454 or via a discovery violation. But the Plaintiff can also submit a motion in limine too, although its rare for these types of cases.

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on the 'threshold of trial' thus, an hour before trial or a day before trial one can file a motion in limine. Your local rules of court and local rules of civil procedure are the authority on time lines for filing such motions. In California collections cases, motions in limine are usually brought because the Plaintiff has not been cooperative and the Defendant wants evidence excluded subject to CCP 454 or via a discovery violation. But the Plaintiff can also submit a motion in limine too, although its rare for these types of cases.

Can you point me a sample of a motion in Limine for violaitions of CCP 98 a) the witness didn't make himself available or is more than 150 miles away?

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You have to serve them with a notice to appear and have the witness not show up to get it excluded. If they violate the statute by listing an address in Nevada, for example, I would do a motion in limine to preclude use of the affidavit. Most judges won't bend over backwards to help out a plaintiff who doesn't follow the law.

Can you point me to a Sample Motion in Limine for violation of CCP 98 a)??

I would really appreciate that.

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They are exceedingly difficult to find online for CA Superior Court collections cases. You will need to look in your courthouse or local law library. Calawyer helped a poster named Jewel with a motion in limine sometime last year from what I recall. I'll do some searching now since it's been over a year since I looked for such a motion.

Here is a document on how to strategically use motions in limine to save court time and make ones case flow more efficiently.

http://ceb.com/reporter/freeAccess/articles/cvart805.pdf

Edited by rikkivs
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From what I have been reading they are primarily used in civil cases, so the jury doesn't hear/see damaging testomony only to have it omitted by judge, yet according to attorneys the testimony can never be erased from the jury's mind. Hence a motion in Limine is brought before trial.

Since it's only going to be you and the trial lawyer, there nobody but the judge, defendent and plaintiff.

I would think you could bring it up verbally before the trial or maybe hand it to the judge and lawyer.

btw, how would you serve the motion if you are going to bring it up 30 minutes before trial?

Or 1 day before trial?

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before trial, then you are likely doing it as an ex parte motion because the plaintiff was uncooperative. In that case, you have to look up your local rules of civil procedure and rules of court for timing. In certain situations, if the plaintiff was uncooperative you can do a motion for sanctions and motions in limine.

If you wanted to do a motion in limine the day before trial, then you could serve the plaintiffs via fax, provided you guys had an agreement to accept faxes from one another. However, this type of last minute scenario generally would not happen unless the plaintiff has been very naughty! And bear in mind that you must meet and confer with the plaintiff attorneys before you file any motions UNLESS they are being non responsive and you'd still need to send a good faith letter or two for the court's records.

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before trial, then you are likely doing it as an ex parte motion because the plaintiff was uncooperative. In that case, you have to look up your local rules of civil procedure and rules of court for timing. In certain situations, if the plaintiff was uncooperative you can do a motion for sanctions and motions in limine.

If you wanted to do a motion in limine the day before trial, then you could serve the plaintiffs via fax, provided you guys had an agreement to accept faxes from one another. However, this type of last minute scenario generally would not happen unless the plaintiff has been very naughty! And bear in mind that you must meet and confer with the plaintiff attorneys before you file any motions UNLESS they are being non responsive and you'd still need to send a good faith letter or two for the court's records.

Thanks,

Here is a link, I think it's 10 days in OC.

http://www.smartrules.com/states/California/Orange-Superior/In-Limine-Motions-32-25-710.html

I talked to some NACA lawyers and they told me to object to CCP 98 and if the judge allows it it's grounds for appeal and they will file it.

The thing is that if the judge doesn't allow testimony, plaintiff is going to do some other manuver. Of course if he allows then you must settle?

Edited by ADSOFT
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Orange county has some interesting rules too and you can get caught up if you don't follow them to the tee, but so can the plaintiff attorneys;) For example, in OC you have to fill out a settlement conference form and serve it to the plaintiffs and they have to serve one to you. In OC a settlement conference form is NOT the same as a case management form.

If the judge does not allow CCP 98 declaration in lieu of testimony, then the plaintiff's goose is cooked. If he allows the declaration, then you still have ways to object to the content of the document anyway. What other strategies have you employed in your case?

Have you served them requests for admissions? Usually you do a motion to deem them admitted because rarely do they respond to the requests on time and adequately. Have you served them other discovery requests?

Have you guys met and conferred?

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I don’t have a sample. Jewell did one several months ago and she did an excellent job. You might pm her and ask for an exemplar.

If plaintiff violates CCP 98 you can object orally at trial or you can do a motion in limine. If you do it orally, you will need to have a court reporter there at trial and you will need to pay for the reporter and a transcript. You will also need to arrange for this in advance since in many counties, the courts do not automatically have court reporters in the courtroom for short cause trials. The advantage of the motion in limine is that there is a record on appeal.

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I would think it would be pretty straight forword,

Just title your Motion

Motion in Limine,

Defendent moves in limine to exclude all testimony of plaintiff's witness *** name ***, pursuant to CCP 98. Witness for the Plaintiff, name, vioalted section CCP 98 a),

"...... quote ccp cod"

The address of witness excedes the 50 mile limit.

A witness that can't be cross examined is not witness.

I'm going to work on touching it up.

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See this cheat sheet for more information. The links to the California Civil Code don't lead to the codes, but they do give the numbers of the codes.

In particular, CCP 1987 © explains when you a Notice to Appear is sufficient and when you ought to subpoena a witness.

©If the notice specified in subdivision (B) is served at least 20 days before the time required for attendance, or within any shorter period of time as the court may order, it may include a request that the party or person bring with him or her books, documents or other things. The notice shall state the exact materials or things desired and that the party or person has them in his or her possession or under his or her control. Within five days thereafter, or any other time period as the court may allow, the party or person of whom the request is made may serve written objections to the request or any part thereof, with a statement of grounds. Thereafter, upon noticed motion of the requesting party, accompanied by a showing of good cause and of materiality of the items to the issues, the court may order production of items to which objection was made, unless the objecting party or person establishes good cause for nonproduction or production under limitations or conditions. The procedure of this subdivision is alternative to the procedure provided by Sections 1985 and 1987.5 in the cases herein provided for, and no subpoena duces tecum shall be required.

Subject to this subdivision, the notice provided in this subdivision shall have the same effect as is provided in subdivision (B) as to a notice for attendance of that party or person.

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Also, is there a FORM for this NOTICE TO APPEAR or do i write it myself???

Here is a link mentioned above and it still works:)

Now this is solely for content, as you will have to use the Pleading Wizard and CA Rules of Court to properly format it. Do a search for Pleading Wizard Sacramento County Library and a link will pop up and it is so cool! If you choose the example then it is a sample motion properly formatted and you can simply replace the text.

Best Wishes! :)

Edited by rikkivs
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