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I have a short cause trial tomorrow against Midland Funding. I subpoenaed the "legal spe******t" witness per the Affidavit in Lieu of Testimony...The witness is in MN and I am in CA....If the witness doesn't show, and opposing counsel asks for a Dismissal Without Prejudice, can I ask the court for Dismissal With Prejudice...and if so, do I state my case based on the Affidavit is not admissable....also, has any defendant brought contempt up to the court against the witness for not attending, or sanctions on the plaintiff's attorney for knowing the witness was not going to appear?

I hope tomorrow I can post a success story too!

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I suggested sanctions in my MIL. Not sure if that was a good idea or not, but they really shouldn't be allowed to get away with this stuff. Good Luck!

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you have to prep for if the court allows the declaration into evidence.

areas to attack are the procedural errors of the declaration affiants service address, and the other areas concerning lack of records creators reliability and trustworthiness.

specifically, the business records exception to the hearsay rule Evidence code sec.1271 & 1272:

1271. Evidence of a writing made as a record of an act, condition,

or event is not made inadmissible by the hearsay rule when offered to

prove the act, condition, or event if:

(a) The writing was made in the regular course of a business;

(B) The writing was made at or near the time of the act,

condition, or event;

© The custodian or other qualified witness testifies to its

identity and the mode of its preparation; and

(d) The sources of information and method and time of preparation

were such as to indicate its trustworthiness.

1272. Evidence of the absence from the records of a business of a

record of an asserted act, condition, or event is not made

inadmissible by the hearsay rule when offered to prove the

nonoccurrence of the act or event, or the nonexistence of the

condition, if:

(a) It was the regular course of that business to make records of

all such acts, conditions, or events at or near the time of the act,

condition, or event and to preserve them; and

(B) The sources of information and method and time of preparation

of the records of that business were such that the absence of a

record of an act, condition, or event is a trustworthy indication

that the act or event did not occur or the condition did not exist.

and this case:

"The declaration of the custodian of business records, executed in response to a subpoena duces tecum for production of the records (Evid. Code, § 1560 et seq.), may state all the matters it is required to state under Evid. Code, § 1561, yet fail to provide a sufficient foundation for admission of the records under Evid. Code, § 1271 (business records exception to hearsay rule). Most significantly, the custodian's declaration is not required to state the "identity" or "mode of preparation" of the records. As a result, it will usually fail to show that the sources of information and the method and time of preparation of the records indicate their trustworthiness. Therefore, in the face of a hearsay objection, the affidavit of the custodian, made pursuant to Evid. Code, § 1561, does not satisfy the requirements of the business records exception to the hearsay rule set forth in Evid. Code, § 1271, subds. © & (d), and the copy of the business record, produced pursuant to Evid. Code, §§ 1560 and 1561, is inadmissible hearsay."

Taggart v. Super Seer Corp., 33 Cal. App. 4th 1697 (Cal. App. 4th Dist. 1995)

I have seen a couple of times where the court has allowed the declaration even though a subpoena was sent.

So this should break down your argument for the court:

We are aware that this construction of section 1560 et seq. lessens their usefulness as a low-cost way to obtain documentary evidence for use at trial. Nevertheless, our construction is compelled by the fact that the Legislature has expressly made admissibility under section 1562 conditional on satisfying the business records exception of section 1271. We conclude that the Legislature did so intentionally, to prevent the wholesale admission of hearsay lacking any guarantees of reliability or trustworthiness. A contrary construction would create a hole in the business records exception big enough to drive a truckload of hearsay through; the proponent of a business record who could not show how it was prepared, or who knew that the way it was prepared would indicate that it was untrustworthy, could nevertheless introduce the record into evidence.(Id. at p. 1708)

Don't go to court without a backup plan. a MIL will preserve your objections.

Also if the the declaration is missing the statement from CCP2015.5 about the perjury laws of the state of california, then it would be wholly inadmissible as long as you object and cite this case:

Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601

prepare for the worst, and enjoy it if you don't need it.

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if they ask for a dismissal without prejudice then yes object and ask for "with prejudice" I did and got the with prejudice.

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Thanks Seadragon....I would have hated to get blindsided!

But I need clarification....if the court allows the declaration, do I state the case (Taggart v. Super Seer Corp) and the actual case language or just the "argument for the court" you presented

And not so lucky, it was stated under the perjury laws of the State of California.

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read the opinion and understand the reason that the witnesses declaration was not allowed.

The trial court reversed themselves and the appeals court ruled that if the declarant cannot provide foundational testimony about the documents creation and maintenance, or the trustworthiness of the records. They cannot let the generalized statements concerning their records procedure be allowed to stretch to cover the other alleged owners of the account. also they usually make no statements concerning the bills of sale.

So the Evidence code is very tricky but the things to bring up are the things that the caselaw brings up

the requirements of CCP 98 and how they didn't comply, the evidence code regarding hearsay and the requirement of business records exception. The evidence code for testimony of a witness. and the conclusory statements that are in fact hearsay.

that stuff:

so outline for CCP98 destruction:

A. procedurally defective

1. Made in excess of 150 miles from the courthouse(service address is in excess also)

2. not available for service

3. improper jurat

B. Objections

1. a. Hearsay of Declarant(cannot authenticate other peoples records)

b. Hearsay in records themselves(third party records are not authenticated by the people who made them)

c. The Bills of Sale say that the OC does not authenticate records and would prevent the plaintiff from taking a different position than their alleged assignor.

d. the declarant cannot authenticate the Bills of sale signatures and agreements of third parties

2. Hearsay of hearsay

3. Bills of sale do not show the account and are ambigous as to transfer of rights.

these things are issues to present if they try to submit the declaration.

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I DID WIN AGAINST MIDLAND FUNDING this a.m. The plaintiff sent a substituted attorney. She showed up late, just as the second roll call was happening. I don't like to make judgements on people, but she was an ederly lady, wearing a crumpled black skirt and suit jacket, and juggling a canvas bag and an accordian file full of documents. She looked quite disheveled and drew the entire attention of the court. The judge did not know her.

The judge called us forward, and asked if we were both ready. He asked the plaintiff what evidence they were presenting, and if they had it all. She stated that if was the Affidavit in Lieu of Testimony. He then asked me if I had any evidence or documents. I confirmed that they had the filed subpoena and proof of service. He did confirm that, and then the attorney stood up and stated that there was not any service of subpoena...the judge read off what he had...she denied ever receiving the subpoena and stated she needed to call the office of where it was "supposedly" served. I was going to mention that I had a copy of the Answer to their CCP 96, served via mail on July 9th, which also stated the subpoenaed witness I was calling to trial. But I read somewhere, that silence is sometimes golden. She came back about 1/2 hour later. She told the judge that there was service to an employee, but since it went to an affliate law office, the subpoena notice must have gotten lost in a file. Therefore, they would request a dismissal.

The judge smiled and said to me, I don't think you would object to that. I stated "no", but I would like the dismissal to be with prejudice. He replied that he thought that was appropriate, and looked at opposing counsel, and there was no objection. I also asked for costs, and he said I had to complete the form and request them.

Case done! I sincerely thank everyone who has posted on my threads, and everyone elses threads and posts that I have been able to read and learn from. This website is truly a miracle.

I did learn a few things today about short cause trials today. According to the check in sheet, the court allowed 1 hour. I had also written a MIL that never came into action, as well as a time consuming trial brief that wasn't required either. And, in this type of case, I believe that it is best to file everything with the court, even if it is not required...

Unfortunately, I have another case against Midland in 3 weeks. I was extremely lucky on this case, as my RFP was late...with 5 days mailing, the docs weren't due until today and my CCP 96 was late, and no BOP...the only thing I did timely was the subpoena. In my new case, I have timely RFP's, BOP's, CCP 96 and the witness is being subpoenaed today.....the case is from the same law office, so I am not sure if they get wind of me, they may have a better plan of action....any input if I should be filing anything else or being doing any additional due diligence?

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CONGRATULATIONS!!!

:BigDance:

I was waiting for you to post. I think we have the same affidavit. I'm glad everything worked out for you.

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Congratulations!

::band::Another one bites the dust!

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We need more icons....replicas of the military Silver Star which anybody who beats a JDB can put next to their name, and the Medal of Honor for anybody who beats an OC. Oak leaf cluster for anybody who wins more than one.

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any input if I should be filing anything else or being doing any additional due diligence?

Congrat's on the win. Of course I can think of some things to make them think twice, 3 times or more about ever coming near me. Based on their failure in the first case and the current action I would be amending the pleadings to counter sue Midland and the law office for FDCPA violation, or filing a separate action. They lost once, gonna lose again and then it looks to them like they are going to lose a third time. xxHellxx

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she was an ederly lady, wearing a crumpled black skirt and suit jacket, and juggling a canvas bag and an accordian file full of documents. She looked quite disheveled and drew the entire attention of the court.

Who were you expecting? Greta Van Susteren? Mickey Sherman? David Boise? Lanny Davis? This is our opposition. I've said it time and again, these are the worst of the worst who can't get better work. When they are faced by even a moderately up to speed lawsuit happy semi-talented amateur, (sorry, Coltfan LOL) they fold and run!

Your case is done, I am no expert on the FDCPA, who knows if you have a claim. Only thing is you up the ante, (doesn't that sound dirty?) where you have to go to federal court where you need to have your game on. Your call. If you do have a violation, a good consumer atty would take your case and scare off the old bag lady. Yeah, I know, not nice to criticize her, but she'd cut your heart out in the jury box if she thought she could get away with it. Never give the enemy slack. If they send their weakest troops, you kill them all and have a party.

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good job now for the costs,paper,paperclips,tape,ink,envelopes,large envelopes,filing fees,milage,the 5 law books you purchased California Civil Litigation (with Study Guide) / Edition 5 $144.84,Litigation by the Numbers

$268.64,An Illustrated Guide To Civil...Allen Paperback$52.77,Civil LitigationPeggy N. Kerley Hardcover$162.73,Marcus, Redish, Sherman, and...Richard L. Marcus Hardcover$174.47.dont know if you can recover for 46 cans of redbull.

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YAY!! Another Midland win!!!! Awesome job!! Proud of you!!!

:multibounce::multibounce::multibounce:

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Excellent. Congrats to you. The dismissal with prejudice was fantanstic.

Don't forget your cost memo.

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