Themis

Sued in California - verification, causes of action and affirmative defenses?

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No.

 

You can attempt to serve a summons and COMPLAINT on a corporation that actually does business in California but has not appointed an agent for service of process here such as CT corporation.

 

But here, we want to serve a WITNESS.  THe witness must be served personally.  And the witness must be served in California.  JDBs know this.  And that is why a CCP 98 declaration from an out of state witness is so bogus.  Of course, if the witness shows up voluntarily, all bets are off.

 

That's really good information!!!  Just out of curiosity, in theory what could be done to facilitate a "out of state subpoena" (my choice of words) I see judicial council forms for subpoenas for an actioin already pending out of state, but what would be (in theroy as opposed what is actually practicle) the opposite?  I see a judicial council form to take a commission out of state the DISC-030 form requesting the other state to to enforcce their local laws to enforce production of a witness or documents.  Would this step be correct, or at all practicle? 

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Two very different things.

 

The subpoena power of a state ends at its borders.  Therefore, if you want to take the deposition of an out-of-state witness, you must have the state of residence command the presence of the witness.  So, for example, a California court will execute a commission to a Nevada Court asking that a subpoena issue from that Court to take the deposition of the Nevada resident.  But you will have to travel and take the deposition in the state of Nevada.

 

Because a Californaia Court cannot command a Nevada resident to travel to California, there is no practical way to require an out of state witness to attend a state court trial.  The one exception is if you served the witness while in the state of California.  That analysis is a very complicated one and is beyond the present discussion.

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Two very different things.

 

The subpoena power of a state ends at its borders.  Therefore, if you want to take the deposition of an out-of-state witness, you must have the state of residence command the presence of the witness.  So, for example, a California court will execute a commission to a Nevada Court asking that a subpoena issue from that Court to take the deposition of the Nevada resident.  But you will have to travel and take the deposition in the state of Nevada.

 

Because a Californaia Court cannot command a Nevada resident to travel to California, there is no practical way to require an out of state witness to attend a state court trial.  The one exception is if you served the witness while in the state of California.  That analysis is a very complicated one and is beyond the present discussion.

 

Well thank you for the explanation nonetheless!!!

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It's update time!  Here's what's been happening lately:

 

I went to court to observe two trials in our judge's courtroom, but it wasn't extremely helpful because in one case the defendant didn't show up, and in the other case the defendant's only defense was "I don't have a job and I have 4 kids".  Two judgments for plaintiff in less than 30 minutes.  But I got to see how the judge did things, so that was good.  He was really nice and he seemed more than fair.  Then I spent some time at the law library.  What a great place that is!  I had a whole table to myself, so I piled it up with books and lost all track of time.

 

Because of the wording of the CCP 98 Declaration, I decided to serve a Notice to Appear upon the CCP 98 Declarant's attorney (NOTICE TO PLAINTIFF TO APPEAR AT TRIAL: APPEARANCE OF CATHERINE POTTS)  rather than subpoena.  Then I filed and served an Objection to the CCP 98 Declaration, and I continued working on the MIL and Trial Brief.  Meanwhile, I kept trying to educate my friend  so he would be prepared to represent himself in court (trial scheduled for May 6).  Let me tell you, that has been the most work I've had to do so far!  He's about to drive me insane :lol:

 

Then I found out that there's been a different judge in that department recently.  I have no idea what happened to the nice judge that was assigned to the case, or who this new judge is.  It was at about this same time that it finally became clear to me that my friend was NEVER going to be ready for trial.  So, yesterday he offered to settle out of court for a very small fraction of what they were suing for and they accepted his offer.  Done.  He's happy he doesn't have to go to court and risk getting a judgment against him, and I'm happy I can now go back to my regularly scheduled life :-D  I imagine that they're probably happy, too, but I really don't care about them :lol:

 

And there it is.  Thank you all so much for helping me get through this.  I've learned so much from all of you and I truly appreciate it.  Oh, by the way, one of the lawyers said that I have a brilliant legal mind and I should go to law school!  That makes me happy (and proud) but I couldn't have done it without all of you xxheartxx

 

So, let's celebrate!  The way I look at it, any time you don't lose, it's a win!  :PartyTime:

 

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Glad you are happy.  If you are, then we are.

 

But, just fyi and for future readers, a notice to appear is not sufficient.  You need to do a subpoena.  THe CCP 98 declarants are usually not an officer, director, or managing agent of plaintiff.  See 1987 (B)

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Glad you are happy.  If you are, then we are.

 

But, just fyi and for future readers, a notice to appear is not sufficient.  You need to do a subpoena.  THe CCP 98 declarants are usually not an officer, director, or managing agent of plaintiff.  See 1987 ( B)

 

Well, it's not what I would have done, but I'm happy that my friend is happy.  I would have been happier if he would have put more effort into learning how to defend himself, but it's his choice and he's the one who has to live with it.  I'm still very proud of the work that I did and I'm so grateful for this site and the people here who helped me so much.

 

The CCP 98 declarant said she was an authorized agent and duly qualified custodian of records of Plaintiff.  And the declaration said  "the Declarant will be made available for live testimony at trial if Defendant serves a Notice to Appear at Trial upon Plaintiff's attorney," so that's what I did.

 

I want to thank you, calawyer :-D  You give so generously of your time and your expertise.  You are a truly wonderful person!

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Glad you are happy.  If you are, then we are.

 

But, just fyi and for future readers, a notice to appear is not sufficient.  You need to do a subpoena.  THe CCP 98 declarants are usually not an officer, director, or managing agent of plaintiff.  See 1987 ( B)

Yea I learned my lesson on that the hard way. So people thinking of doing this DON'T FRIKKIN DO IT! We have to make 100 posts a year about this notice in lieu of and people still want to do it.

 

The reason they want to do it is because it is cheap. If you do it I will guarantee you will not like the judges ruling. Trying to save the service of process fees at the end of the case, when you can win and get it back is bad economy.

 

Just don't do it please. And if you are complaining about those fees, the appellate fees are a lot worse(no more mr. nice court.)(my appellate costs were 1500.00) so file and serve the regular old subpoena or I will be angry with you.

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Yea I learned my lesson on that the hard way. So people thinking of doing this DON'T FRIKKIN DO IT! We have to make 100 posts a year about this notice in lieu of and people still want to do it.

 

The reason they want to do it is because it is cheap. If you do it I will guarantee you will not like the judges ruling. Trying to save the service of process fees at the end of the case, when you can win and get it back is bad economy.

 

Just don't do it please. And if you are complaining about those fees, the appellate fees are a lot worse(no more mr. nice court.)(my appellate costs were 1500.00) so file and serve the regular old subpoena or I will be angry with you.

 

That's not why I did it.  In my last post I explained that I sent the Notice to Appear pursuant to CCP 1987b because of the title of the witness and the wording of the CCP 98 Declaration. 

 

Anyway, as I said before, if it was me I would have done things differently.   But some people are gamblers and some people aren't.  In the end, my friend decided that it was in his best interest to settle for a small amount and be done with it, rather than take his chances at trial and risk a judgment.  And I respect his decision.  Not everyone has the same tolerance for risk. 

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Ya but a part of gambling is knowing when the house has the odds. In your friends case it sounds like no amount of help was going to make them ready for trial. Thus the odds were not in their favor. You don't double down on a bad hand just so you can loose more money. That's what was going to happen. Good call all the way around I'd say.

This is all about tactics. Not all tactics are about an all out win. It about damage control sometimes and sometimes it takes going through all these steps just to settle for far less than you ever would have in the beginning.

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Ya but a part of gambling is knowing when the house has the odds. In your friends case it sounds like no amount of help was going to make them ready for trial. Thus the odds were not in their favor. You don't double down on a bad hand just so you can loose more money. That's what was going to happen. Good call all the way around I'd say.

This is all about tactics. Not all tactics are about an all out win. It about damage control sometimes and sometimes it takes going through all these steps just to settle for far less than you ever would have in the beginning.

 

You're absolutely right!   I became very concerned that my friend wasn't ever going to be ready for trial and I posted about it in this thread three months ago.  And that's exactly what would have happened. 

 

Thank you so much for understanding my position and for stating it so perfectly.  I was starting to feel like everyone here was disappointed and thought I had failed or something, just because we didn't go for the "big win."  But you reminded me why this was the best decision for my friend's case, and for him, it IS a big win.  And I can still be proud of all of the hard work that I did, and of the outcome, too.  Thank you  :-D

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Glad you are happy.  If you are, then we are.

 

But, just fyi and for future readers, a notice to appear is not sufficient.  You need to do a subpoena.  THe CCP 98 declarants are usually not an officer, director, or managing agent of plaintiff.  See 1987 ( B)

 

Question:

 

Can't you do a notice to appear 1987 as the CCP 98 is defective?  The declarant, "Angela Tucker", clearly states that she will be available for service by "appointing"  ABC Legal Service (a service processing company?) to accept on her behalf.  

 

... Not to mention that she does not live or work within 150 miles of the court.

 

(Thanks for all you do Calawyer!  You rock!)

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Question:

 

Can't you do a notice to appear 1987 as the CCP 98 is defective?  The declarant, "Angela Tucker", clearly states that she will be available for service by "appointing"  ABC Legal Service (a service processing company?) to accept on her behalf.  

 

... Not to mention that she does not live or work within 150 miles of the court.

 

(Thanks for all you do Calawyer!  You rock!)

 

 

It is not safe to do a notice to appear.  Plaintiff will argue that the declarant is one of the people under the statute that you are permitted to notice under that statute.

 

That is what Seadragon's judge ruled and I believe the ruling was correct.

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It is not safe to do a notice to appear.  Plaintiff will argue that the declarant is one of the people under the statute that you are permitted to notice under that statute.

 

That is what Seadragon's judge ruled and I believe the ruling was correct.

Trust me. They said he was "just an employee" the judge said he wasn't a manager, or made policy, or an owner. My point is it caused me to lose so "DON'T DO IT. GET IT OUT OF YOUR MIND. UNLESS YOU LIKE LOSE THOUSANDS OF DOLLARS BECAUSE YOU ARE STUBBORN"

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