Declaration of Plaintiff in Lieu of Personal Testimony at trial?

[xavi72]

I just received this declaration from the plaintiff's attorney. Along with this declaration, I also received the same statements that they sent me in response to my original BOP request. I just recently served them with my discovery (production of documents, request admissions, and special interrog). At the very beginning when I Answered my summons, I also completed a notarized Sworn Affidavit which, according to my understanding, an actual live witness can only be used to testify at trial.

I don't know if this declaration was sent to me in response to my requests stated above. According to the declaration, the witness states she's an authorized agent of the Plaintiff. At the end of their 3 page declaration, the agent states that she appoints XXX Legal to accept service of process in this matter in their behalf and that she will be available for service of process 20 days immediately prior to trial.

Does this mean they will actually be including a witness at their trial? If so, this changes my game plan....

[Scientific]

When is your trial?

I would subpoena that person so you can grill them with questions. I'm guessing the address they provided for service is within 150 miles of court?

[calawyer]

I just received this declaration from the plaintiff's attorney. Along with this declaration, I also received the same statements that they sent me in response to my original BOP request. I just recently served them with my discovery (production of documents, request admissions, and special interrog). At the very beginning when I Answered my summons, I also completed a notarized Sworn Affidavit which, according to my understanding, an actual live witness can only be used to testify at trial.

I don't know if this declaration was sent to me in response to my requests stated above. According to the declaration, the witness states she's an authorized agent of the Plaintiff. At the end of their 3 page declaration, the agent states that she appoints XXX Legal to accept service of process in this matter in their behalf and that she will be available for service of process 20 days immediately prior to trial.

Does this mean they will actually be including a witness at their trial? If so, this changes my game plan....

You received a declaration pursuant to CCP 98. Here is the rule: CA Codes (ccp:90-100)

Search my posts for CCP 98 and you will see quite a bit of discussion about your options. Remember, however, that the address given must be 150 miles from the courthouse or the declaration should not be admitted. Also, while the affidavit may be admitted at trial if you do not subpoena the witness, this is only to the extent "the contents of the prepared testimony would have been admissible were the witness to testify orally thereto." That means the declaration must be properly authenticated and must not be full of hearsay.

[xavi72]

Well the affiliate agent is located out of state. However, she does provide an address within the radius for the 20 days prior to the trial date.

In regards to the authentication, the affiliate agent wrote a declaration under penalty of perjury that she can testify and that she's an authorized agent of the Plaintiff. This was all done on pleading paper but there was no notarized document verifying this.

Edited October 29, 2011 by xavi72

[VLDCA]

Well the affiliate agent is located out of state. However, she does provide an address within the radius for the 20 days prior to the trial date.

In regards to the authentication, the affiliate agent wrote a declaration under penalty of perjury that she can testify and that she's an authorized agent of the Plaintiff. This was all done on pleading paper but there was no notarized document verifying this.

Make sure she followed these rules for CA, CCP 2015.5

Mine didn't, yet I won on her violating the subpeona law. My judge didn't like the fact she was out of state either. So that was a plus for my case.

[xavi72]

Make sure she followed these rules for CA, CCP 2015.5

Mine didn't, yet I won on her violating the subpeona law. My judge didn't like the fact she was out of state either. So that was a plus for my case.

Unfortunately, these guys are pretty aggressive and appear to be be bullet proofing themselves pretty well!! They have included that statement under CCP 2015.5 because the declarant is out of state.

[Seadragon]

Then check the questions for a witness thread to grill them. Serve them ricky tic. and prep a motion in limine.

also meet and confer about the exhibits objections. doing all these calls their bluff. also schedule a court reporter after you file a fee waiver. sometimes the granting of a fee waiver clues the plaintiff to the fact that you have no money.

getting a court reporter is going to chill everyone out. being on the record scares CA as their tactics can be used against them. also get all the info you can about the affiant. You can PM me the name if you like then all of us can look them up. with several of us calling talking to the affiant in their state then filling out affidavits will show the affiant wasn't there at the address stated.

Mess with one CIC member miss with us all.

[skippy1960]

You mention they are bullet proofing themselves...No they are trying to convince you to give up so they get an easy victory...

They have chosen an affiant and filed CCP 98, so you need to call that bluff and force them to bring that person to court. As stated you can do this by subpeona, or you might use CCP 1987(.

In the case of the production of a party to the record of any

civil action or proceeding or of a person for whose immediate benefit

an action or proceeding is prosecuted or defended or of anyone who

is an officer, director, or managing agent of any such party or

person, the service of a subpoena upon any such witness is not

required if written notice requesting the witness to attend before a

court, or at a trial of an issue therein, with the time and place

thereof, is served upon the attorney of that party or person. The

notice shall be served at least 10 days before the time required for

attendance unless the court prescribes a shorter time. If entitled

thereto, the witness, upon demand, shall be paid witness fees and

mileage before being required to testify. The giving of the notice

shall have the same effect as service of a subpoena on the witness,

and the parties shall have those rights and the court may make those

orders, including the imposition of sanctions, as in the case of a

subpoena for attendance before the court.

This is very simply and only requires proof of service. Might look something like this.

Pursuant to Civil Code 1987(, Defendant <your name> hereby requests that < witnesses name> ,identified and designated by Plaintiff <name here> as its agent in this matter, attend and appear at the trial in this matter commencing on < date, time , Your Court, Your county, court address> .

signed by you and send with proof of service...

Once you request that out of state declerant to show up, you will find you get a new decleration of someone much closer to california, if they are serious about winning....

[VLDCA]

Supbeona the witness! Make sure you have your questions which I can send you. Also what does the Bill Of Sale look like? I just had someone on here tell me they won b/c of the BOS. Does it have your account number or name on it. Anything assigning them 'your' account? You can win, you have plenty of other arguments you 'must' be prepared to use if the subpeona doesn't work.

My judge hated the fact that the witness lived in another state & gave 5 different address to find her at for trial & these address were all over CA when she lived in MN. He knew then they were full of it. How stupid are they??

They want you to think they have you. Its part of their zillion dollar mind games. Its been working for them when you don't show up to court. You show up to court to fight then they have to prove it!

When is your court date?

[xavi72]

You mention they are bullet proofing themselves...No they are trying to convince you to give up so they get an easy victory...

They have chosen an affiant and filed CCP 98, so you need to call that bluff and force them to bring that person to court. As stated you can do this by subpeona, or you might use CCP 1987(.

In the case of the production of a party to the record of any

civil action or proceeding or of a person for whose immediate benefit

an action or proceeding is prosecuted or defended or of anyone who

is an officer, director, or managing agent of any such party or

person, the service of a subpoena upon any such witness is not

required if written notice requesting the witness to attend before a

court, or at a trial of an issue therein, with the time and place

thereof, is served upon the attorney of that party or person. The

notice shall be served at least 10 days before the time required for

attendance unless the court prescribes a shorter time. If entitled

thereto, the witness, upon demand, shall be paid witness fees and

mileage before being required to testify. The giving of the notice

shall have the same effect as service of a subpoena on the witness,

and the parties shall have those rights and the court may make those

orders, including the imposition of sanctions, as in the case of a

subpoena for attendance before the court.

This is very simply and only requires proof of service. Might look something like this.

Pursuant to Civil Code 1987(, Defendant <your name> hereby requests that < witnesses name> ,identified and designated by Plaintiff <name here> as its agent in this matter, attend and appear at the trial in this matter commencing on < date, time , Your Court, Your county, court address> .

signed by you and send with proof of service...

Once you request that out of state declerant to show up, you will find you get a new decleration of someone much closer to california, if they are serious about winning....

I have just completed my CCP 96 notice to them and will be mailing it today. Just one question, is the statement above used as a subpoena for their declarant?

[xavi72]

Supbeona the witness! Make sure you have your questions which I can send you. Also what does the Bill Of Sale look like? I just had someone on here tell me they won b/c of the BOS. Does it have your account number or name on it. Anything assigning them 'your' account? You can win, you have plenty of other arguments you 'must' be prepared to use if the subpeona doesn't work.

My judge hated the fact that the witness lived in another state & gave 5 different address to find her at for trial & these address were all over CA when she lived in MN. He knew then they were full of it. How stupid are they??

They want you to think they have you. Its part of their zillion dollar mind games. Its been working for them when you don't show up to court. You show up to court to fight then they have to prove it!

When is your court date?

I'm set to appear on 12/8/2011. This is why I have to send the CCP 96 notice like now. With the subpoena, did you send it to the actual address, which is out of state for me, or to the local address they provided that supposedly they will be at 20 days prior to the court trial? I'm wondering if its wise to subpoena the witness now or wait until I'm within those twenty days...

[VLDCA]

I personally would wait til closer to trial to subpoena. Most process servers allow 3 days to try & serve this person. I only had 2 days (before the 10day before trial cut off) & the attorney excepted the subpoena on my affiants behave. Then turned around that same day & mailed it back to me saying she's not an employee there at his office.

Now the CCP 96 I am having to do one as well right now for Portfolio, I am waiting to the last minute to send mine out. My 2nd trial is Dec. 5, so I will send mine out on Monday maybe Tuesday. The rule is at least 30 calendar days before trial. So you still have some time. They have 20 days to respond to it. CAL. CCP. CODE § 96 : California Code - Section 96

[VLDCA]

Here's a form I found online.

http://forms.lp.findlaw.com/form/courtforms/state/ca/ca000196.pdf

Make sure you have a proof of service attached to it. Don't file w/ court.

[Seadragon]

You mention they are bullet proofing themselves...No they are trying to convince you to give up so they get an easy victory...

They have chosen an affiant and filed CCP 98, so you need to call that bluff and force them to bring that person to court. As stated you can do this by subpeona, or you might use CCP 1987(.

In the case of the production of a party to the record of any

civil action or proceeding or of a person for whose immediate benefit

an action or proceeding is prosecuted or defended or of anyone who

is an officer, director, or managing agent of any such party or

person, the service of a subpoena upon any such witness is not

required if written notice requesting the witness to attend before a

court, or at a trial of an issue therein, with the time and place

thereof, is served upon the attorney of that party or person. The

notice shall be served at least 10 days before the time required for

attendance unless the court prescribes a shorter time. If entitled

thereto, the witness, upon demand, shall be paid witness fees and

mileage before being required to testify. The giving of the notice

shall have the same effect as service of a subpoena on the witness,

and the parties shall have those rights and the court may make those

orders, including the imposition of sanctions, as in the case of a

subpoena for attendance before the court.

This is very simply and only requires proof of service. Might look something like this.

Pursuant to Civil Code 1987(, Defendant <your name> hereby requests that < witnesses name> ,identified and designated by Plaintiff <name here> as its agent in this matter, attend and appear at the trial in this matter commencing on < date, time , Your Court, Your county, court address> .

signed by you and send with proof of service...

Once you request that out of state declerant to show up, you will find you get a new decleration of someone much closer to california, if they are serious about winning....

a managing director, officer, or for who's immediate benefit a cause of action is prosecuted.

I wouldn't, to save a couple of recoverable bucks, jeopardize the ability of the plaintiffs attorney to let the court allow it in because they allowed a tricky statute to let the affidavit in. One of the issues in my appeal is about this very issue.

So it is best if you personally serve the subpoena at the address. You see if they deny the witness is there then later say they were there then your servers(sherriffs are the best and they wouldn't dare lie to a cop) affidavit is the best. Check at your courthouses Court services for the amount they charge is roughly $35.

The subpeona statute is CCP 1985.

[skippy1960]

Certainly, use the subpeona process if you choose, point was there are ways to accomplish the same result. CCP 1987( was used by an attorney I retained to defend a case. The declerant/affiant was in court the day of trial, so it had the desired affect.

In the case of the production of a party to the record of any

civil action or proceeding or of a person for whose immediate benefit

an action or proceeding is prosecuted or defended or of anyone who

is an officer, director, or managing agent of any such party or

person, the service of a subpoena upon any such witness is not

required if written notice requesting the witness to attend before a

court, or at a trial of an issue therein, with the time and place

thereof, is served upon the attorney of that party or person. The

notice shall be served at least 10 days before the time required for

attendance unless the court prescribes a shorter time. If entitled

thereto, the witness, upon demand, shall be paid witness fees and

mileage before being required to testify. The giving of the notice

shall have the same effect as service of a subpoena on the witness,

and the parties shall have those rights and the court may make those

orders, including the imposition of sanctions, as in the case of a

subpoena for attendance before the court.

In the whether you use subpeona or CCP 1987(, if they don't produce the live person that signed the decleration/affidavitt, their case tends to evaporate pretty fast.