Oh Notice to Appear last question!!!

[rikkivs]

I just came across a case where a Plaintiff did a Notice to Appear for person most knowledgeable of Defendant and there were some complications. It turns out that the judge felt that in discovery it is okay to ask for persons most knowledgeable, but in Notice to Appear for a CORPORATION, language matters. See below:

Plaintiff argues that section 1987, subdivision (, does not require that the noticing party

specify the particular individual whose attendance at trial is required. Venoco objects that

the particular individual must be identified.

The problem created by the notice is plaintiff’s use of the term the “person designated …

who is most qualified to testify.” This language comes from discovery practice: “If the

deponent named is not a natural person, the deposition notice shall describe with

reasonable particularity the matters on which examination is requested. In that event, the

deponent shall designate and produce at the deposition those of its officers, directors,

managing agents, employees, or agents who are most qualified to testify on its behalf as to

those matters to the extent of any information known or reasonably available to the

deponent.” (§ 2025.230.) An important difference, however, between section 2025.230 and

1987, subdivision (, is that a corporation is required to designate and produce “officers,

directors, managing agents, employees, or agent” for a deposition, but only produce

an “officer, director, or managing agent” for trial. There is no obligation under section 1987,

subdivision (, for a corporation to designate any person as “most qualified” nor to produce

an employee or agent who is not an officer, director or managing agent.

So when doing a Notice to Appear at Trial and one is being sued by an OC which is a Corporation, instead of asking for person most knowledgeable do we ask for officer, director or managing agent without a particular name or what? This confuses me. Here is a link to the judges tentative decision on the motion.

[rikkivs]

My oh my have I been mentally sluggish lately. Anyway in the Notice to Appear, one simply needs to use language from CCP 1987 ( to cover the bases so one could ask for the agent, director, etc...and alternatively person most knowledgeable. That way I feel that such objections raised by the Defendant in the previous link would be unwarranted. I think this is right, but if I am wrong please correct.

[Scientific]

I'm not sure I understand...why not fire off a CCP 96 request, which states:

You are requested to serve on the undersigned, within 20 days, a statement of:

(1) the names and addresses of witnesses (OTHER THAN A PARTY WHO IS AN INDIVIDUAL) you intend to call at trial;

Once they respond to that, you can subpoena that person and ask that they bring their resume, records, etc...

NOW if they respond to that with PMK (as they did in my case), you put together a motion in limine:

Plaintiff’s response to CCP §96 request is insufficient and Plaintiff did not exchange a list of witnesses pursuant to local rules. Defendant therefore asks this court that Plaintiff be precluded from introducing witnesses at trial.

[rikkivs]

Yes we fired off the CCP 96 demand already. They have until two days before the end of the month to respond. They overnighted us a parcel a few days ago with some unverified gibberish as a response to a bill of particulars demand, but didn't specifically respond to the CCP 96 demand with their language. But they are calling the spouse as a witness, they sent the spouse a notice to appear as a witness. Other than that they have not sent the names of anyone that they will call as a witness, just a settlement letter.

So just to be sure, a Notice to Appear for a person like custodian of records is premature until they disclose the witnesses they will call? Or should I send out the Notice anyway just to be safe? Thanks!

[Scientific]

I would wait for their response to CCP 96 then go from there. Get your subpoena information and MIL ready just in case....

[rikkivs]

Finally I understand the logic behind what you are saying. Forgive me all, I've been slow lately, and have undergone some cognitive decline. Thanks for all of your support and help and I send all of you good thoughts and success in your cases!!!

[rikkivs]

They attached the evidence they were going to show and the name of an employee who they will call. But they didn't put the address of this employee down. Does that mean they violated CCP 96 where it asks for the names and addresses of witnesses, or is this a minor issue?

Lastly this employee that they are going to call...how likely is it that he will show up to trial? They didn't serve a CCP 98 declaration either, and I was told that Notices to Appear or Subpoenas usually only go out when plaintiff introduces a CCP 98 declaration. I am a little confused now.