not going down Posted May 1, 2013 Report Share Posted May 1, 2013 Hey Guy's... Been a while and need advice again... 1) Plaintiff filed summons Jan 2012 , I answered and have been fighting case for some time...Discovery , Motions , Affidavits ........ 2) Case went dormant in Aug , 2012 haven't heard a Peep out of Plaintiff or Court House .... 3) Recieved a Letter from Plaintiff Stating that there asking the Court to Keep the Case open "Discovery" ...If I read the "Show of Cause" "Cause of Action" correctly ... It reads as if the Court is asking them why there is/hasbeen a significant lul in the case activity ... And there Stating the Case is still in Discovery... 4) There is no Court Date set as of now ... Will I have to appear for a Court Date if one is set ...Plaintiff has not or will not disclose a witness list for me to send deposition or subpeona ... Thats where I'm at in Discovery.... 5) Any and all advice is Greatly appreciated .... Thanks N.G.D Link to comment Share on other sites More sharing options...
shellieh98 Posted May 1, 2013 Report Share Posted May 1, 2013 Hey Guy's... Been a while and need advice again... 1) Plaintiff filed summons Jan 2012 , I answered and have been fighting case for some time...Discovery , Motions , Affidavits ........ 2) Case went dormant in Aug , 2012 haven't heard a Peep out of Plaintiff or Court House .... 3) Recieved a Letter from Plaintiff Stating that there asking the Court to Keep the Case open "Discovery" ...If I read the "Show of Cause" "Cause of Action" correctly ... It reads as if the Court is asking them why there is/hasbeen a significant lul in the case activity ... And there Stating the Case is still in Discovery...Well they are just buying time, and all the while the sol has stopped. You shoud get moving on this. 4) There is no Court Date set as of now ... Will I have to appear for a Court Date if one is set ...Plaintiff has not or will not disclose a witness list for me to send deposition or subpeona ... Thats where I'm at in Discovery.... yes you will have to unless you want to lose, then no. 5) Any and all advice is Greatly appreciated ....are you prepared? so what kind of discover have you asked for? did they provide? Post if you did, or if you didn't and we can advise you better. Having it sit out there in la la land isn't going to make it go away, you need to get resolution. What are the details of the case? is it a OC or JDB? Let us help you to put it to rest. Thanks N.G.D Link to comment Share on other sites More sharing options...
not going down Posted May 1, 2013 Author Report Share Posted May 1, 2013 Shellieh98, 1) I have been fighting this case for over a year...It is with a JDB "Portfollio Rec. a$$'s" 2) Brumbaugh & Quandahl (Omaha) Plaintiff's Attny... 3) Filed answer , Affirmative Defense's , Launched an aggressive Discovery , Interrogs and Addmissions... 4) Drilled them for 6 mos to produce Bill of Sale , Title of Account , "Assignment"... 5) June 2012, Filed a Motion to Compell... forceing them to produce something , Attny showed up with Generic B.O.S.My Name was not on it , no Dates , Theodore Anderson from G.E.Money (OC) Robo Signed it... 6) July 2012, sent Attny Special Discovery wanting info on Theodore Anderson...Name , Address , Place of Employment , Relation with Employer ................... 7) August 2012, Plaintiff's attny denied all requests , Claimed Teddy was not on the witness list ....... a) Orig Credit: GE Money Bank (Portfollio Rec a$$'s Bought the Debt) $2500.00 (Small Claims Court)c) 4 yr S.O.L on unsecured Debt...d) 2013 time's upe) Thinking about filing a Motion for Summary Judgement... Thanks Shellieh98 for any input or adviceN.G.D Link to comment Share on other sites More sharing options...
shellieh98 Posted May 1, 2013 Report Share Posted May 1, 2013 I don't know the rules of civil procedure for neb, but you need to get the affidavidt thrown out. You said they did not send your discovery requests. Send them admissions then. Make sure you put in things that will destroy their case, as "admit affidavidt is robosigned and affiant has no personal knowledge about alleged account with number xxxxxxxx. Admit you were not assigned acount number xxxxxxx from xx bank, and have lack of standing to bring suit, stuff like that. When they deny all your admissions, MTC your discovery stuff. If they don't answer, have them deemed admitted. Then the case goes away with prej. Some say to do a meet and confer letter giving them 10 days to comply with your discovery, but I say you gave them 8 months so to bad. time is not up if you cannot get this dismissed, as the SOL clocked stopped when they filied suit. Do the above and others will weigh in on ways to get rid of that nasty robosigned affidavidt.Did they send the data spreadsheet that goes with the bill of sale? If not, even with the affidavidt it is hearsay without anyting tying it to your account.Lets say they comply with everything, and you now have all this "evidence" against you. That is when we will help you draw up ways to combat it, and file a motion in limine to object against the evidence, witness, what ever it is they have. You have to attack the case on each merit they have, so affidavidt, their claim of account stated, (or breach of contract, whichever it was) their bill of sale, data sheet, et all. But do one thing at a time. Now is a good time since there is no trial set yet. Start by sending them admissions. Also I think you can file an objection to the affidavidt because they have to be able to be supeonaed. Check with your rules on affidavidts. Link to comment Share on other sites More sharing options...
shellieh98 Posted May 1, 2013 Report Share Posted May 1, 2013 Here is a good motion in limine to preclude affidavidt. You would need to look up your rules and see if you could taylor it to fit your needs. 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 AUTHORITIESINTRODUCTION 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 ProcessDeclarant, 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 CAPROP 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 Link to comment Share on other sites More sharing options...
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