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How to handle an "evidentiary objection"


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The background: I sued a JDB and they failed to answer the complaint, so I filed a default against them, and now they are trying to have it set aside. I filed an opposition to their request for set aside and a hearing is coming up. As part of my opposition paperwork, there were a couple of exhibits attached to substantiate issues I was asserting. I just recevied a reply to my opposition, and included was an "evidentiary objection" to my exhibits and a request that they be stricken and declared inadmissible.

I can pretty much defend the exhibits, my question is more regarding the process. I've been a pro per before, but never had this ocur before, so I'm not exactly sure what the process is for rebutting it, or how it will be handled in the context of the default set-aside hearing. I'm assuming that the judge will kind of set the "agenda" for the hearing, right? Is the judge going to address the evidentiary objections first as a kind of mini-hearing-within-the-hearing, and then go on to the set-aside itself? Or is it incumbent upon me to start right out rebutting their objections? Should I prepare any kind of formal documented response to submit at the hearing? Or will it all just be verbal arguments at that point?

Exactly what should I expect to happen and what should I do to prepare, in general? Any other tips or tricks I should know about regarding an "evidentiary objection" within the context of this kind of hearing?

Thanks in advance.

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The irony of a JDB asserting evidentiary objections to factual submissions is just mind-boggling.

Nonetheless, it is dard to say without knowing the ground(s) for the objection. Did you prepare a declaration authenticating the documents? What were the docs and what were the objections?

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Their objections are pretty much boiler-plate and shotgun, in other words, everything they can think of whether its appropriate and relevant or not.

For example, one of the exhibits is a copy of an "Intent to Sue" letter that I sent them prior to actually filing suit , clearly identified in the memorandum as a letter that I wrote, stated as being "true and correct... etc.", I provided the USPS certified mail numbers and in addition to the letter itself, the exhibit included the USPS delivery confirmation, and they are claiming its neither "authenticated" nor "relevant". The exhibit is referenced in the intial "Statement of Facts" section of my submission where I lay out the sequence of events and is presented as substantiation of the fact that I did warn them of my intent to sue them (intended to rebut a claim of "surprise" and also going towards diligence and prudence regarding the handling of my complaint and summons).

The only conceivable argument is that I did not *separately* make a declaration (i.e., sworn, under perjury, etc.) regarding the exhibits alone, but rather had a declaration for the entire Objection package as a whole (which was submitted as a single document), figuring the exhibits are therein included. I even had the declaration notarized.

Anyways, as I said, I think I can rebut whatever objection they make, but its the mechanics of it all that I'm unsure of, never having faced this before. How is all this going to play out at the hearing? Do I have to proactively do something to object to their objection? Or will the judge bring everything up to be discussed and argued as needed? This particular aspect of the hearing is new to me.

Thanks.

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Often evidentiary objections are ignored. I usually have to press a court to rule on them if I think it is important.

Not sure what you mean by a "declaration for the entire Objection package". But if you had a declaration that says "attached hereto as Exhibit A is a true copy of an intent to sue letter that I sent to ___ on July 14, 2010" then that should suffice.

I should warn you that Courts routinely grant motions to set aside defaults if the statutory criteria are met. Courts want to give a party an opportunity to respond to the merits and that is typically good for consumers who are the ones that are usually on the wrong end of a default.

Having said that, did the JDB provide admissible evidence in support of 473 relief?

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I realize that the chances of getting the default sustained is slim to none, but I'm not going to give them an inch, I'm going to fight them tooth and nail every step of the way -- thereby making it clear to them that it may be better in the long run (and no doubt cheaper) to settle with me (on terms favorable to me, of course). As for any evidence on their side, I think it's very much questionable. If it was a slam-dunk, I wouldn't irritate the court objecting, but I think its very much arguable, so I think its worth putting up the fight, as you never know what might happen.

As regards the exhibits, this is how the document was set up (condensed version):

(Intro)

.

.

I. Statement of Facts

1. On x date, I sent Def a letter by US certified mail #1234... stating... yadda yadda.... A true and correct copy of which, along with US postal service certified mail delivery confirmation, is attached as exhibit "A" and incorporated herein by reference.

.

.

[other sections, memorandum, arguments etc., essentially following the same template -- I'd make an assertion about some fact, and say to see exhibit "X" for substantiation of same.]

.

.

IX. Declaration of Plaintiff (final section)

Having first been duly sworn and upon oath, I, (name), deposes and says as follows:

... I have prepared this Opposition and I believe that all of the facts contained herein are true, either to the best of my direct knowledge and recollection, or upon information and belief formed after reasonable inquiry.... I declare under penalty of perjury under the laws of these United States of America and the State of California that all the foregoing is true and correct.

.

[signature]

.

[notarization verification]

.

Exhibits (attached as tabbed sections A, B, C, etc. after the above)

The paperwork was filed as a single document, rather than separate objections, memorandum, declaration, etc. documents, and the whole thing notarized to boot.

There was one exhibit however, that was not "a true and correct copy" as it was not a copy at all but an original list that I created. My intention was to show that the Defendant was: a) highly knowledgeable and extremely experienced in legal matters, and B) had an expectation of receiving lots of legal paperwork during the time in question -- both of which go directly to whether they exercised approproate diligence and prudence regarding their "neglect" and thus have no excusable grounds under the circumstances. To demonstrate the above, I listed all the complaints that they filed in Court during the 30 days preceeding receipt of my summons (almost 150 cases). I figured they should have therefore expected up to 150 other subsequent pleadings (answers) in addition to my own complaint, so they had no excuse not to be prepared to receive them. I indicated that the list was a freely available public record, and indicated where and how the information was obtained (via a search of their name on the Court's website).

Being already a public record, I thought that was OK. Is that something I should also request judicial notice of?

Thanks, by the way, for all your help.

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I figured there's no point in being coy, so here's their whole claim:

They're claiming an employee received the summons but did not tell anybody, nor forward it to counsel, and then quit, with no one knowing about the suit until they received my default.

There's some problems though, in that they freely admit:

1. She was the proper, knowledgeable and duly authorized employee responsible for receiving and handling summons, after service upon their registered agent.

2. She was in possession of it for a full two weeks before she quit.

3. Her boss admits no proactive steps were taken to cover for her work (my words), or at least admits that they only "assumed all her work was taken care of".

They make no claim of any malicious intent on the part of this employee, or that she deliberately withheld the summons to harm them. This employee was apparently not an attorney, so they make no claim of error of counsel.

They make no claim of a mistake, like misfiling under a wrong but similar name, or something inadvertant like that, only that this employee didn't tell anyone (which I am characterizing as intentional disregard) and then quit, which I am characterizing her employer then as not having exercised appropriate diligence and prudence in managing her exit since, a) she had a critical and time sensitive set of duties likely to cause financial and legal liability, and B) they had a sizable expectation of incoming legal paperwork during this same time.

In addition, since her work was obviously critical, I am raising the question of why they didn't have sufficient oversight of this employee to know what work she was doing on a daily basis (while she was there), and I am also showing that they had sizable other legal resources available other than this single employee, including in-house corporate counsel, and franchisee debt-collector attorneys sharing their same address.

Thats the gist of it all. Anything else in the above that I can leverage?

Thanks in advance.

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They make no claim of any malicious intent on the part of this employee, or that she deliberately withheld the summons to harm them. This employee was apparently not an attorney, so they make no claim of error of counsel.

They make no claim of a mistake, like misfiling under a wrong but similar name, or something inadvertant like that, only that this employee didn't tell anyone (which I am characterizing as intentional disregard) and then quit, which I am characterizing her employer then as not having exercised appropriate diligence and prudence in managing her exit since, a) she had a critical and time sensitive set of duties likely to cause financial and legal liability, and B) they had a sizable expectation of incoming legal paperwork during this same time.

In addition, since her work was obviously critical, I am raising the question of why they didn't have sufficient oversight of this employee to know what work she was doing on a daily basis (while she was there), and I am also showing that they had sizable other legal resources available other than this single employee, including in-house corporate counsel, and franchisee debt-collector attorneys sharing their same address.

Thats the gist of it all. Anything else in the above that I can leverage?

Thanks in advance.

I think you are making the best arguments you can make under the circumstances. However, relief under 473 is granted for mistake, inadvertence, surprise, or excusable neglect. Inadvertence is pretty easy and the facts probably fit. That being said, I understand you want to send a message and you have done so.

At the hearing, I suggest you make your argument brief and if the Court says that it is going to grant 473 relief, you just thank the Judge and move on. I am encouraging you not to push it too far at the hearing because if the Judge feels that 473 relief is appropriate under these circumstances, there is nothing you can say that will change his/her mind. And, you want to garner good will and save your chits for when something really matters.

By the way, did defendant serve a proposed answer? If not, the Code says "the application shall not be granted". That is mandatory language that the Court must follow.

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Guest usctrojanalum

The Courts by me will grant this type of motion 110% of the time. Even if there is no reasonable excuse for failing to default, there is actually case law in NY that states (and I'm paraphrasing) "the Court may in it's discretion vacate any judgment because it is good public policy to have cases heard on the merits."

I'm sure almost every judge does favor hearing cases on the merits.

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Thanks for everyone's assistance, esp CALawyer. Yes, I don't expect to have the default upheld, so I think your'e right, to just present a quick summation and take my expected lumps and move on.

However, I think I will make a point to request the opportunity to rebut the evidentiary objections, and request a ruling on them. I think I'll have no problem getting the objections overruled, and I'd rather proceed further without any uncertainty. Unless there's something that I don't know about that would make that a risky venture?

And yes, they did provide an answer, a pretty pathetic one at that, and my response to that is already done and waiting to submit

Thanks all,

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they may have fired the employee. that witness could be priceless in court. The witness would have TONS of good testimony about their practices. I think trumping their testimony with this witness would cast a shadow on the courts mind about them. The ex-employee may be suing them also :)

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