rikkivs Posted March 25, 2012 Report Share Posted March 25, 2012 Hi based on a suggestion from another poster, I am sharing a delimma for the benefit of everyone here. We fired off a CCP 96 demand to plaintiff and they sent us their response. They included the name of one witness but did not give an address where he is to be served. So I guess I have to get him served at the law offices? How many times is sufficient to try and serve a person before it's clear they aren't available? And since the title is that he is the custodian, from recent case law, it seems that this requires a subpoena even if he is party to the lawsuit! No, they did not do a CCP 98 declaration in leiu of testimony at all (and the time to submit one has long past, as trial is only in a few days). The case is not a limited jurisdiction case either. Suggestions anyone? Link to comment Share on other sites More sharing options...
rikkivs Posted March 25, 2012 Author Report Share Posted March 25, 2012 bump anyone? Link to comment Share on other sites More sharing options...
calawyer Posted March 25, 2012 Report Share Posted March 25, 2012 I guess the bigger question is why you would want to subpoena him. If he is the only witness on plaintiff's list, they are not allowed to call anyone else per CCP 96 itself. And in your case, without a witness, they can't win because your testimony will be that the account was paid in full.So if he doesn't show, and they can't call any other witness, how could plaintiff win the case?Typically, we do a subpoena for a CCP 98 witness that has served a declaration. But the only reason to do that is because the declaration might possibly be admitted into evidence at trial if you don't subpoena the witness. Then, you couldn't cross examine the witness at all (its hard to cross examine a piece of paper). Link to comment Share on other sites More sharing options...
Coltfan1972 Posted March 25, 2012 Report Share Posted March 25, 2012 Would you subpoena the officer to court that wrote you a speeding ticket, if your defense was you were not speeding? I know CA courts have some different rules, but unless there is a chance that hearsay will be admitted via a court rule or other hearsay exception, never subpoena a witness to court that will only help the other side. It makes zero sense. Link to comment Share on other sites More sharing options...
rikkivs Posted March 25, 2012 Author Report Share Posted March 25, 2012 Well no they didn't serve a CCP 98 declaration. They did a notice to appear for the spouse to appear on the stand to testify against himself. So what you guys are saying makes sense, that since they didn't submit a declaration and have made a few other errors it doesn't make sense to subpoena the witness name they have on their ccp 96 response. I wonder how likely it is that he or she will show up? Link to comment Share on other sites More sharing options...
1stStep Posted March 25, 2012 Report Share Posted March 25, 2012 Personally, I'd prepare for that happening... Link to comment Share on other sites More sharing options...
rikkivs Posted March 25, 2012 Author Report Share Posted March 25, 2012 Time to get cross examination questions ready! Link to comment Share on other sites More sharing options...
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