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Dismissed Without Prejudice Against Midland- Fees???


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My motion in Limine & Trial was today with Midland. I won the motion & the judge dismissed the trial before it started. He dismissed it without prejudice. I would really like to thank those of you that posts on the forum. It really helps you to navigate though the legal system with positive results. I was wondering if I'm able to get the filing & other fees I've paid to fight this?

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Do I just file with the court Memorandum of Cost Form MC-010 & send a copy to plaintiff? I can't find much info on process. How would I post my Motion In Limine so others might be able to use it.

 

The judge went into his chambers to read it then came out 10 min later with his code book. I didn't have to say much. He asked if I had anything to add. I said no it's all in the motion. He then asked the plaintiff's attorney if they had anything to say. She tried to misrepresent the code CCP § 98 & he corrected her reading the code from the code book . Even saying that the affiant even stated part of the code in her declaration that she would be available for service with in 20 days before trial. After he granted the motion & said he was going to dismiss without prejudice the plaintiffs attorney still wanted a trial. He told her if he starts the trial they would not be able to refile (they had no more evidence & I would win with prejudice). She then agreed & said they would refile.

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Do I just file with the court Memorandum of Cost Form MC-010 & send a copy to plaintiff? I can't find much info on process. How would I post my Motion In Limine so others might be able to use it.

 

The judge went into his chambers to read it then came out 10 min later with his code book. I didn't have to say much. He asked if I had anything to add. I said no it's all in the motion. He then asked the plaintiff's attorney if they had anything to say. She tried to misrepresent the code CCP § 98 & he corrected her reading the code from the code book . Even saying that the affiant even stated part of the code in her declaration that she would be available for service with in 20 days before trial. After he granted the motion & said he was going to dismiss without prejudice the plaintiffs attorney still wanted a trial. He told her if he starts the trial they would not be able to refile (they had no more evidence & I would win with prejudice). She then agreed & said they would refile.

 

 

The Judge was wrong.  THe trial started when the judge heard the motion in limine.  I think you should file a motion for reconsideration.  I helped someone do one recently.  @ASTMedic?  @Rivertime?

 

As far as your costs are concerned, yes, you are the prevailing party and are entitled to your costs.  FIle the form and serve it on plaintiff.

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The Judge was wrong.  THe trial started when the judge heard the motion in limine.  I think you should file a motion for reconsideration.  I helped someone do one recently.  @ASTMedic?  @Rivertime?

 

As far as your costs are concerned, yes, you are the prevailing party and are entitled to your costs.  FIle the form and serve it on plaintiff.

 

 

Thanks calawyer! I sent pm's to ASTMedic & Rivertime for any info on how to write this up. Thanks! The info you post is very helpful & much appreciated in helping navigate thru the legal system which can be very confusing. Thanks!

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The Judge was wrong.  THe trial started when the judge heard the motion in limine.  I think you should file a motion for reconsideration.  I helped someone do one recently.  @ASTMedic?  @Rivertime?

 

As far as your costs are concerned, yes, you are the prevailing party and are entitled to your costs.  FIle the form and serve it on plaintiff.

 

 

I assume I also send a copy of the motion for reconsideration to the plaintiff midland?

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Here is the Motion In Limine I used to eliminate the affiant's declaration & since she was not able to be served & didn't show for trial most of there evidence was eliminated. I got this from a case up north & tailored it to my case. I added it as attachment to my post. If this doesn't work then I can copy & paste.
 

 

Forum Use Defendants Motion In Limine.docx

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The link I have in the previous post doesn't work right for my computer. There is something missing. I can see it if I save it then open it. It will open up in Microsoft Word. But here is a copy & paste version in case anybody has the same problems. I got this from a court case file in northern California but it is pretty much the same as ASTMedic's.

 

 

 

 

(Name & info here)

Defendant, In Pro Per

 

 

 

 

SUPERIOR COURT FOR THE STATE OF CALIFORNIA

 

COUNTY OF LOS ANGELES

 

(Court Name)

 

 

 

MIDLAND FUNDING LLC

                         Plaintiff,

            vs.

(name)

                         Defendant

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Case No.: XXXXXXX

 

 DEFENDANT’S MOTION IN LIMINE          

 

Date: April XX, 2013

Time:

Department:
 

 

 

 

MOTION

      Defendant hereby moves this court in limine for an Order precluding Plaintiff from entering into evidence at Trial the document titled Affidavit in Lieu of Testimony and exhibits attached thereto. The grounds for this motion is that Plaintiff has willfully failed to comply with the rules of civil procedure that govern Limited Civil Cases in the State of California specifically, Code of Civil Procedure § 98.

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

      Plaintiff properly filed this action as a Limited Civil Case. As such, Plaintiff is bound by the rules of civil procedure for such cases which are found in the Code of Civil Procedure § 90, et seq.

Plaintiff has failed to comply with the requirements of these rules of civil procedure. Said failure prejudices Defendant in this case and provides Plaintiff with an unfair litigation advantage.

 

 

ISSUE PRESENTED

      1.      Whether Plaintiff’s Affidavit in Lieu of Testimony should be excluded from evidence at 

                Trial.                          

       Plaintiff has served Defendant a document titled Affidavit in Lieu of Testimony which fails to comply with Code of Civil Procedure § 98. A copy of the Declaration in question, without exhibits, is attached to the Declaration of James Lord in Support of Defendant’s Motion in Limine filed herewith, and identified as Exhibit “A”.

      Exhibit “A” fails to comply with Code of Civil Procedure § 98 in two important respects. First, the declarant, Kayla Haag, failed to provide “a current address of the affiant that is within 150 miles of the place of trial.” Secondly, the declarant was not “available for service of process at that place for a reasonable period of time, during the 20 days immediately prior to trial.” This lack of compliance was willful and in blatant disregard of the laws which govern this action.

      For these reasons, Plaintiff should be barred from introducing the proffered Affidavit in Lieu of Testimony at time of Trial instead of live testimony of their witness.

ARGUMENTS AND AUTHORITIES

      1.     The Court Should Bar Plaintiff from Introducing the Affidavit in Lieu of Testimony.

      Code of Civil Procedure § 98 provides as follows:

 

                  A party may, in lieu of presenting direct testimony, offer the prepared

                  testimony of relevant witness 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

 

                           

                          

                           ( 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 affiant or declaration shall be

                read into the record in lieu of oral testimony or admitted as a

               documentary exhibit.

 

      This statute provides three distinct prerequisites which are required for affidavits or declarations presented in lieu of direct testimony, if the testimony being offered is not in the form of a deposition in the case. First, the declaration must be served on the party against whom it is offered at least 30 days prior to trial. Second, the party who is offering the declaration must provide a “current address” of the declarant “ that is within 150 miles of the place of trial.” Third, the declarant must be available for service of process “at that place” during the 20 days immediately prior to trial.

 

CURRENT ADDRESS

      Plaintiff’s Declarant, Kayla Haag, has not provided a current address that is within 150 miles of the place of trial. In her Affidavit in Lieu of Testimony, dated March XX, 2013, Declarant, Kayla Haag has stated under penalty of perjury that her declaration was executed in the State of Minnesota, Sterns County. Notably, no address in the State of Minnesota is within 150 miles of the place of trial. Additionally, the Affidavit in Lieu of Testimony states that “For 20 days immediately prior to any trial in this matter, I agree to accept service at any of the following locations:” Among the five different locations Ms. Haag will be able to be served 20 days before any trial in California is 3111 Camino Del Rio North, Suite 1300, San Diego, CA. 92108. Locations in San Jose, Sacramento, Westlake Village, & Upland, California are also listed. Plaintiff’s declarant cannot just simply provide any “address for service of process,” and doing so utterly fails to comply with the statute. The address provided must be “a current address” of the declarant, and the address must be within 150 of the place of trial. The plain meaning of the statute is clear: declarants whose current address is greater than 150 miles from the place of trial cannot submit declarations in lieu of direct testimony at trial. Instead, such witness must appear at trial in person. Plaintiff has failed to meet this basic requirement of Code of Civil Procedure § 98, the Affidavit in Lieu of Testimony   must be excluded from evidence at trial in this matter.

 

Availability for Service of Process

Declarant, Kayla Haag was not available for service of process at the address provided in her Declaration. On April XX, 2013 a Civil Subpoena For Personal Appearance at Trial or Hearing was issued which ordered the Declarant Kayla Haag to appear in person at trial on April xx, 2013. On April XX, 2013 Defendant’s Process server Executive Attorney Services attempts to personally serve this Civil Subpoena For Personal Appearance at Trial or Hearing on Kayla Haag at 3111 Camino Del Rio North, Suite 1300, San Diego, CA. 92108. Kayla Haag was not available for service at this address she provided in her Affidavit in Lieu of Testimony.  Therefore Kayla Haag was not served a copy of the Civil Subpoena For Personal Appearance at Trial or Hearing. A copy of the report re service of process to Kayla Haag dated April XX, 2013 is attached to the Declaration of 

(your name) in Support of Defendant’s Motion in Limine filed herewith, and identified as Exhibit “B”.

 

      Because declarant, Kayla Haag was not available for service of process at the  address she provided under penalty with in the 20 days immediately prior to trial, Plaintiff has failed to provide a declaration which complies with Code of Civil Procedure § 98. Therefore the Affidavit in Lieu of Testimony must be excluded from evidence at trial in this matter.

 

Service in “Care Of” is not Service

      It is bad faith for Plaintiff to attempt to skirt the rules designed for economic litigation by stating that it’s out of state declarant would be available to personally “accept Service” “c/o” or “in care of” another entity in a limited jurisdiction case. In a blanket attempt to avoid the obvious problems of using an out of state declarant with a CCP §98 declaration, Plaintiff has endeavored an end run around the rules of civil procedure which require the local presence of the declarant, CCP §98.Declarant Kayla Haag signed her Affidavit in Lieu of Testimony in St. Cloud, Minnesota. This would naturally disqualify her from being a CCP §98 declarant, yet her declaration craftily states she will be available for service at the office Midland Credit Management Inc. 3111 Camino Del Rio North, Suite 1300, San Diego, CA. 92108. However an attempt was made to serve a Civil Subpoena For Personal Appearance at Trial or Hearing at the address she stated she would be available at revealed that Ms. Haag was not present at that address but worked in the St Cloud, Minnesota office. The other addresses listed state “c/o”. Not only is this arrangement false it is also invalid because subpoenas must be served personally: “the service of a subpoena is made by delivering a copy, or a ticket containing its substance, to the witness personally.” Cal. Code Civ. Proc. 1987(a). In the case of In re Abrams (1980), 108 Cal. App. 3D 685, 166 Cal. Rptr. 749, the court points out the difference between service of a subpoena and service of a summons:

 

          “In addition to the lack of express statutory authorization for serving witness subpoenas on

          Agents, service of a subpoena differs from service of summons because the penalty for

          Disobeying a subpoena may be much more serious than that for not responding to a

          summons, hence it is much more important to maximize the probability of notice to the

          contemptner than to the usual defendant. Not answering a summons normally will produce

          a default judgment for the payment of money, which may sometimes be later set aside under

          Code of Civil Procedure section 473 or an analogous procedure. Non response to a

          subpoena may result in money damages plus five day’s imprisonment. The difference in

          possible consequences may help explain why the Legislature has provided many different

          modes of serving summons, but one, personal delivery, for serving a subpoena.”

          Id. At 690 (Emphasis added.)

 

      Arranging to have one of their local dept collection colleagues agree to “accept service” for an out of state declarant is simply not permissible under the foregoing law governing personal service of subpoenas to appear at trial. Plaintiff’s invalid and specious arrangement balks at the laws which govern this court and those who practice before it. Those submitting evidence to California courts against California Residents must be subject to the jurisdiction of California courts if justice is to be served. Surely, the California legislature did not intend CCP §98 to create a means for out of state witness declarations to be used carte blanche and without being subject to cross- examination in California courts.

 

Conclusion

      The Affidavit in Lieu of Testimony proffered by Plaintiff fails to meet two (2) out of the three (3) requirements for admissibility under Code of Civil Procedure § 98. By falsely asserting that its declarant, Ms Haag, would be available for personal service of process in California, Plaintiff MIDLAND FUNDING LLC deliberately sought to violate the intent of the rules designed for limited economic litigation and attempt to perpetrate a fraud on the court. If such behavior would be indulged there would be no point in establishing such rules. Further without an opportunity to subpoena and cross-examine this key witness, admission of the affidavit would violate Defendant’s due process rights. Finally it would not be economic litigation if a defendant or his attorney were forced to waste money and resources on false representation of witness location, or to go nearly 3000 miles to depose a witness.

      The rules of Civil Procedure for economic litigation are to simplify limited cases and make the process affordable to the litigants, not to add unnecessary complexity and difficulty for a defendant who wishes to exercise his right to cross examine witnesses against him. As the foregoing demonstrates, Plaintiff’s willful misrepresentations caused defendant to waste time and money in trial planning, attempting to have a Trial Subpoena served on the plaintiff’s declarant at the address indicated. Not only that, but it provides an illegal trap for the unwary litigant and constitutes a fraud on this court. If defendant had not attempted to serve the declarant at the designated location, then this court may have likely accepted the truth of the assertions contained

in the affidavit as being proper and in compliance with CCP § 98 and could have  had a judgment entered against defendant based upon Plaintiff’s fraudulent declaration. Therefore, because Plaintiff has failed to comply with Code of Civil Procedure § 98, therefore, this Court must exclude the Affidavit in Lieu of Testimony  and all exhibits which it purports to support as it contains pure hearsay and receive only live testimony at the trial in this matter.

 

Dated:______________

                                                                         By:__________Signature__________

                                                                               (Print Name)

                                                                               Defendant, In Pro Per

 

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