SUBPOENA SERVED BUT NO ANSWER CCP98

[chiquita55]

In my case the Plaintiff has put in their trial brief a ccp98 by a person from VA. I am in CA. They claimed they would be here for the 20 days preceeding trial. The Sheriff served the subpoena and apparently (I haven't seen it yet...hope I get it soon) it said that the 'defendant doesn't live or work here'

What do I do if the judge wants to let the ccp98 in anyway? Also, can they just bring someone else to court instead?

Can I use this info in my trial brief or keep it secret til trial and then object to their wanting to enter it as evidence.

[helpme]

this is from Scientific

"Just because they gave an address within 150 miles of the court doesn't mean they'll be there to be served. Read many places on this forum that when the process server shows up at the address, no one knows who that person is (the affiant)."

Another poster to look up is I believe: vldca They were going thru something like this.

hope this helps.

[helpme]

Quote:

Originally Posted by aqui View Post

Scientific you are on point...the affiant was nowhere to be found, rather nobody knows of him, they never heard of such person.

Fr Calawyer below:

You are going to want to get a good declaration from your process server that the witnesws was not at the address in the CCP 98 declaration. If the judge says the declaration is hearsay, pull this out of yuour back pocket:

CCP 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.

Technically, you will be using the declaration to show NON-service instead of service, but I think this will help. If the procvess server could come to court or be on telephone stand by, that would help.

[chiquita55]

The place on the form is on the 3rd page. There was a place for the Sheriff to sign and write in what happened. Wouldn't his signature and the declaration that the person neither lived or worked at that address be good enough for our purpose? I hope it arrives in the mail to me tomorrow!

[VLDCA]

My subpoena I used on the Midland case the judge said 'hearsay' yet he threw the case out b/c the affiant was a not there. I won!

I used a process server. Now you used a sheriff that may be better.

So what he did is good enough.

[Seadragon]

Quote:

Originally Posted by aqui View Post

Scientific you are on point...the affiant was nowhere to be found, rather nobody knows of him, they never heard of such person.

Fr Calawyer below:

You are going to want to get a good declaration from your process server that the witnesws was not at the address in the CCP 98 declaration. If the judge says the declaration is hearsay, pull this out of yuour back pocket:

CCP 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.

Technically, you will be using the declaration to show NON-service instead of service, but I think this will help. If the procvess server could come to court or be on telephone stand by, that would help.

So they get to make declarations the judge will have to believe because theofficer is in court the judge could call him to testify.

[1stStep]

Since you used a peace officer, you're at a better advantage...their declarations carry more weight.

But you may want to have him/her on standby to testify that the affiant was not at the address if need be.

[chiquita55]

Would I have to subpoena the officer? I bet you have to pay him to do that. I will ask about it next time I am at court.

[KentWA]

As I seem to remember in CA that a peace officers written report can stand in stead for them most of the time in civil cases. I would look for any case law that goes along that tact.