Subpoena in response to CCP 98

[HotWheels96]

I am going toe to toe with an OC, and have been for nearly a year.

We've exchanged discovery, BOP's, the whole bit.

They recently served me with a CCP 98 from the usual affiant, Wandi Chamberlain. This person lives and works in Virginia, and the declaration she signed was done so in Virginia.

The declaration gives a process server company [with loads of their own legal troubles] authorization to accept service for her.

My problem is, though I have read many threads that substitute service is unacceptable, my process server said it was.

I don't know what to do now and I'm frustrated!

[1stStep]

The affiant must be personally served. Find another process server who actually knows what they are doing.

[Seadragon]

Then move to Strike the affidavit as it does not comply with CCP98 and CCP2015.5, and is full of unexceptable(as in business exception) conclusory hearsay.

also I believe the sherriff will find she is not there, and that will help get the affidavit thrown out.

[HotWheels96]

While the declaration was authored and signed in Chester, Virginia it was signed with the verbiage about the laws of California and is notarized.

I will have the sheriff attempt the serve though as I do feel this is in my best interest. The server was telling me that personally served included the subpoena being given to the person they authorized to accept service. And it seemed that because the affiant made that authorization clear, it meant that she didn't have to be there to be served. I disagreed of course.

Finally, the 20 day timeframe expressed in the code has me confused. I have seen people serve as late as 8 days before the trial, and have seen people say it must be done prior to the 20 days. However, in the declaration she states that she will be available to be served in the 20 days immediately before and up to the date of the trial.

This has me believing serving prior to the 20 days is incorrect. Then it seems I should have her served around 19 days prior to the trial. How far off am I?

Many thanks for your assistance!

[Rivertime]

Yes, what 1stStep and Seadragon said, use the Sheriff.

Look at the statute itself, ..."the affiant is available for service of process at that place for a reasonable period of time, during the 20 days immediately prior to trial." It clearly does not say "or an authorized representative."

Also, send out your own CC 96 CAL. CCP. CODE § 96 : California Code - Section 96 if your are between 45 and 30 days from trial. This can be a huge help for you. Some counties have a "fill in the blanks" form available for you or you could just copy what the statute says.

Good Luck,

rt

[Rivertime]

Here is the entire statute:

CCP 98

A party may, in lieu of presenting direct testimony, offer the prepared testimony of revelant witnesses in the form of affidavits or declarations under penalty of perjury. The prepared testimony may include, but need not be limited to, the opinions of expert witnesses, and testimony which authenticates documentary evidence. To the extent the contents of the prepared testimony would have been admissible were the witness to testify orally thereto, the prepared testimony shall be received as evidence in the case, provided that either of the following applies:

(a)A copy has been served on the party against whom it is offered at least 30 days prior to the trial, together with a current address of the affiant that is within 150 miles of the place of trial, and the affiant is available for service of process at that place for a reasonable period of time, during the 20 days immediately prior to trial.

(b)The statement is in the form of all or part of a deposition in the case, and the party against whom it is offered had an opportunity to participate in the deposition.

The court shall determine whether the affidavit or declaration shall be read into the record in lieu of oral testimony or admitted as a documentary exhibit.

It clearly says 20 days immediately prior to trial. If you were to serve 21 or 22 days prior, the service would not be in compliance. As it reads you could serve the day before trial but I would not recommend it. You want to get it back showing she was unavailable for service so you can have her affidavit or declaration or whatever tossed.

The personal service issue has been discussed on here at length and some California experts say that personal service is absolutely essential for the CCP 98 document to be admissible in lieu of testimony.

[HotWheels96]

I have missed my opportunity to serve the CCP 96. Nothing I can do about it now unfortunately.

While I have read every CCP 98 post I can find on CIC, I was completely thrown by the server's position. Again, thank you all for your insight.

[ASTMedic]

Also use CCP 1987(a):

".......the service of a subpoena is made by delivering a copy, or a ticket containing its substance, to the witness personally......"

In my case the D-Bag lawyer tried to argue that I should have attempted to serve the lawyer bringing the suit by referencing CCP 1987(. Ya they're only like 800 miles away, let me get right on that. I countered with the above section. CCP 1987( is bogus since it allows for me to serve the lawyer if I so choose. However it in no way says that one must attempt service in such a way.

[bohey]

Also use CCP 1987(a):

".......the service of a subpoena is made by delivering a copy, or a ticket containing its substance, to the witness personally......"

In my case the D-Bag lawyer tried to argue that I should have attempted to serve the lawyer bringing the suit by referencing CCP 1987( . Ya they're only like 800 miles away, let me get right on that. I countered with the above section. CCP 1987( is bogus since it allows for me to serve the lawyer if I so choose. However it in no way says that one must attempt service in such a way.

ASTMedic this keeps getting more difficult. Plaintiff's attorney provided an address to a site where an out-of-state affiant "could be available" 20 days prior to trial. This address is 180 miles from the Court.

The office is not listed no was a tephone number provided 

I have not filed an out-of-state  subpoena since the Plaintiff was to provide a :custodian within 150 miles. All officers of the banks (affiants) are employed in other states. How do I address this? 

 

I feel like they have blocked me into a corner. I don't think I have to subpoena, should I send a Notice to appear to the Attorney's office instead explaing that their witness was outside the mandated 250 miles. 

[ASTMedic]

Lets finish this in your orignal thread as not to hijack this one