easy619

Motion to Compel granted...this should be interesting

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I agree, I'm just trying to really dissect this thing and  see how strong my argument is. I think all together with everything combined it looks like a bad ruling, but the appeals court will probably weigh things on their individual legal merit. I'm digging for ccp 96/97 case law.

I think your argument is very strong, it probably was a bad ruling. The appellate court will weight things with heavy use of the statutes, and procedure issues. It should be 3 judges just trying to decide if your judged made an erroneous ruling.

The case law you are looking for is going to be hard to find at best, I would go to the law library to see if it even exist.

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Easy619, 

 

Very sorry to hear about your situation. If you are still considering appeal, it may be wise to review the Target v. Rocha case. There is a lot of caselaw in there on page 2 specific to appeals. Also, if you live anywhere near Santa Clara it may not be a bad idea to go get copies of the appeal documents written by the Defendant's attorney as well as any other documents associated with the appeals process from that case to see how they were written and formatted. Unfortunately, Santa Clara documents are not available online.  

 

Also a couple of things to think about regarding your appeal. Is there anything documented other than your MIL and likely the trial minutes regarding your objections. You mentioned no court reporter was present and it is not likely the trial minutes will have all of your objections. Do you have a copy of the trial minutes to see which objections the court actually acknowledged? I bring this up because I have noticed the appeals courts tend to disregard any item that was not brought up at trial or there is no proof it was brought up at trial. Did you request a statement of decision? (CCP 632) Being that your case just ended your could possibly request a statement of decision (CCP 632) if the court deems its not too late. It must usually be requested before the court's decision in a non-jury trial shorter than eight hours in length  but your judge didn't seem to care much about code requirements and deadlines so you never know. It may help with your appeal if the court will allow the statement of decision to be requested after the trial.

 

Good luck. Remember, trial courts review fact. Appeal courts review law and your CCP 96&97 argument is definately a viable issue of law. Also possibly is the evidence code 1271 issue. Also, take a look at San Mateo 494432 trial minutes. It is a Midland case, court finds in favor of Defendant, that talks directly about testifying regarding another party's business records. Its not caselaw but may be of use to you. 

 

I am not an attorney

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I'll look into the trial minutes, and see what records the court kept. Also I will take a look at the cases you mentioned for case law.I did not yet request a statement of decision. Plaintiff had a proposed judgement that judge signed.

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Thoughts on a Motion for a New Trial vs Appeal? I don't know much about motions for new trial, I'm reading seadragon's topic on it. Does the same judge decide the motion?  Also, does the judgement the judge signed at trial start the 30 day clock to appeal, or do they still have to serve me with a notice of entry of judgement?

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I would personally go for an appeal, since the appellate court is the one you want.  You do not want another judge that will rule on his/her interpretation of the evidence....instead, because of the issues you are dealing with in this case, you want the appellate court, which rules on matters of law. 

 

You presented valid concerns with regard to the law not being followed by the plaintiff.  For some reason, the judge ignored these.  The appellate court is supposed to focus specifically on the law itself.  Thats what I would want, anyways.  You will be looking to show that you brought matters of law to the attention of the court in the original trial, and that the judge erred in overruling those.  You will want to show that because the judge erred in allowing those things despite what the laws say, you were not afforded a proper defense under the law.  The goal with an appeal is to show that you were wrongly ruled against, because of what the law says and not necessarily what the evidence says.  A new trial would simply start you back over at the beginning, maybe in front of the same judge that ignored the laws last time.  When you appeal, the appellate court has the option of remanding your case back to the court on its own for a new hearing, or they might just reverse judgment altogether and rule in your favor--not as common but it can happen.  You might consider in your appeal asking for reversal of the judgment and judgment in your favor, since the plaintiff did not produce anything admissible at trial that proves their case against you.

 

Again, just my thoughts.  Hopefully others who know more than I do will chime in too.

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Check your local rules. Mine say that before an appeal is granted you must first motion for a new trial.

 

A new trial might not be bad (if you get a  different judge, which you would), and you can always appeal that ruling if it was bad again. It might save you some money because the appellate court is probably about $700-$800. Also (I can't remember) but if you did not have a court reporter in your case, it may not be a bad idea for a new trial with a reporter this time around.

 

All irrelevant if your local rules say you have to file for a new trial first. Definitely time sensitive.

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I see your point on appeal over motion for new trial. I'm exploring my options. While I think a motion for a new trial, if granted, would give me a decent shot at winning at trial before a different judge. But, I'm fairly sure the motion would be heard by the same judge who presided over the original trial, and i see no reason why judge would agree with me to grant a new trial. But I also think my judge had to be in a smaller percentile of judges who would have allowed plaintiff to get away with this stuff, and that my argument would do well more times than not at trial. Also not sure if in the event of a new trial, if I would have to send a new ccp 96 request possibly voiding my major appeal argument...my head is about to explode.

 

As for the appeal, I don't see anything in local rules that specify you must motion for new trial first, but I've added that to my list of questions for the clerk, I'm waiting on a callback from them, or I'll be able to head back to the court house for some answers later this week. I'm trying to figure out what kind of clerk's transcript, or minute entry, or anything I could use in appeal.

 

Meanwhile, I had a missed call from midland this morning, probably wanting to talk payment. 

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Personally, I don't see any value in filing a motion to get the judge that ruled on your case to stand up and say yes you should have a new trial, with one of my counterparts. Further if that did happened and the next trial a different judge rules the same way you are out of gas....

Stay on the Appeal option it is your best and only hope with the court system.

I think you need to call Midland back, cash is king, they might be willing to accept a lump sum for much less than the judgement. After, all they now have to try to collect, you have already shown that you can go toe to toe. Hear them out, if the number is something that works for you and your family settle. That is what civil litigation is about, finding a way out that both sides can accept.

If they want the whole enchilada, then you go to appeal. I am sure they will be thrilled to spend some time on your case. They won't be able to do a copy and paste filing on appeal, some attorney will have to put on their lawyer hat and actually write a pleading.

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Personally, I don't see any value in filing a motion to get the judge that ruled on your case to stand up and say yes you should have a new trial, with one of my counterparts. Further if that did happened and the next trial a different judge rules the same way you are out of gas....

Stay on the Appeal option it is your best and only hope with the court system.

I think you need to call Midland back, cash is king, they might be willing to accept a lump sum for much less than the judgement. After, all they now have to try to collect, you have already shown that you can go toe to toe. Hear them out, if the number is something that works for you and your family settle. That is what civil litigation is about, finding a way out that both sides can accept.

If they want the whole enchilada, then you go to appeal. I am sure they will be thrilled to spend some time on your case. They won't be able to do a copy and paste filing on appeal, some attorney will have to put on their lawyer hat and actually write a pleading.

I wast thinking of contacting them. I'll answer next time they call, just to negotiate a bit before I decide on the appeal issue. I don't have anywhere near the whole enchilada, nor enough to make them an appealing lump sum offer I don't think. Although, maybe I could get a decent offer up somehow. I don't think I make enough that they could even garnish my wages at the moment, though I've read conflicting things on the formula. I'd like to avoid a wage garnishment order if possible, I might be willing to make payments even if they couldn't garnish anything, just to keep this away from my employer/future employers.

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I think you need to call Midland back, cash is king, they might be willing to accept a lump sum for much less than the judgement. After, all they now have to try to collect, you have already shown that you can go toe to toe. Hear them out, if the number is something that works for you and your family settle. That is what civil litigation is about, finding a way out that both sides can accept.

If they want the whole enchilada, then you go to appeal. I am sure they will be thrilled to spend some time on your case. They won't be able to do a copy and paste filing on appeal, some attorney will have to put on their lawyer hat and actually write a pleading.

 

Considering they won, they're going to want it all. Negotiations are likely out the window. It's worth a try but there's no leverage to push things in any particular direction.

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Despite having been awarded judgement, midland was still willing to negotiate. They offered a reasonable lump settlement, which I cannot afford. They also offered a somewhat reasonable payment plan which I can't much afford either. 

 

I've noticed there is a different proof of service form for appeals court; does anyone know when these should be used? Would a POS30 be correct for a notice of appeal, and then the appeal POS afterwards, or appeal POS for notice of appeal and here on out?

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I was checking and there is Form APP-109 for Limited Civil Appeals to be used for Proof of Service, there are also some instruction for the form.  Essentially process is similar to POS-30, but different form....

 

I would use the APP-109 for most of the POS during the appeal, there is a place to enter documents that are not listed on the form.

 

Your appeal is common in that there aren't 7 different parties to serve, so if you look at the list of documents on the APP-109 form.  You cound say to yourself, eventually each of these items will be served on the plaintiff/party...

 

Notice of Appeal is the first step, let them know they need to lower that lump sum number a bit more....

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I was checking and there is Form APP-109 for Limited Civil Appeals to be used for Proof of Service, there are also some instruction for the form.  Essentially process is similar to POS-30, but different form....

 

I would use the APP-109 for most of the POS during the appeal, there is a place to enter documents that are not listed on the form.

 

Your appeal is common in that there aren't 7 different parties to serve, so if you look at the list of documents on the APP-109 form.  You cound say to yourself, eventually each of these items will be served on the plaintiff/party...

 

Notice of Appeal is the first step, let them know they need to lower that lump sum number a bit more....

Yes, the APP-109 is the form i was mentioning.  I'll use that form for everything, starting with the notice of appeal. I'm going to start a new thread for the appeal once it's filed.

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Were you able to get your appeal filed? If so, post the new thread on this thread so we can follow.

 

Of all the lost cases I've read here, this seems to be the most appealable (word?) case I have ever seen. Go get 'em!

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I lost. Plaintiff showed up late with witness in tow. No rent-a-lawyer, the same guy who been handling the case since my motion for terminating sanctions. Judge denied my MIL, stating the amended response did not prejudice me, and allowed the witness to testify. She denied preclusion of any evidence, stating we would handle it as it came up.  I gave my opening statement citing lack of standing, and a few case laws about business records exemption and a witness trying to authenticate third party business docs. Witness took the stand, I objected to various statements citing lack of personal knowledge, lack of foundation. Objected to opposing council testifying. Judge overruled every single one of my objections, both to testimony and evidence. Judge allowed witness from encoure capital to lay foundation and authenticate the bill of sale and affidavit of martin lavergne, despite my objection and citing of the elkins case, pointing out the lack of ccp98 or 2015.5 compliance. Judge denied the account specific affidavit, rather, plaintiff withdrew it after i supplied the judge with her order of preclusion from the last motion hearing.  Judge seemed to grow irritated with my objections and case law. I cross examined witness, demonstrated that she hadn't worked for chase, nor knew anything about their practices. Judge stated that she could authenticate their docs because "business do it all the time" and "that's how collectors operate." I knew i was screwed by this point. I crossed the witness for quite a minute, judge seemed to be irked and reminded me this was not a deposition. I got witness to admit never having read the purchase agreement, she even state that midland had it, i pointed out that there was a court order to produce it, judge didn't seem to care. Witness admitted to not having seen the entire list of accounts. I moved to disqualify witness, bill of sale, database entry and affidavit, citing lack of personal firsthand knowledge to authenticate, lack of foundation. Plaintiff council argued that then they would always have to bring a witness from chase. Judge overruled me. I believe judge overruled every single one of my objections to evidence. Plaintiff called me to stand. Asked if i applied for chase card. I said not to my recollection. I gave my previous addresses and last four of social. Plaintiff had me read the name and address off of several statements, asked if i remembered receiving statements, I said i didn't recall. Asked if i made payments  and charges ,(payments and charges are clearly shown  on statements) i said don't recall. Plaintiff produced a map showing the proximity of my former address and the location of several places were charges were made. Plaintiff asked to have statements admitted, I objected, overruled. Judge stated that my name and multiple matching addresses were enough to authenticate. Plaintiff moved for judgement, Judge entered judgement for plaintiff. Judge did state that I did a wonderful job, all of my pleadings were well prepared, that I handled myself admirably in court, and that she thought i was a lawyer until i took the stand. She said i should consider law school, once my debts are cleaned up.

 

I can't believe it, feel rather sick to my stomach. Apparently, CCP 96 and 97 is a suggestion, not code,  affidavits ARE admissable at trial despite case law and objection, and a witness from plaintiff CAN authenticate documents from an OC. After all of the countless hours I spent on this case, I can't help but feel absolutely crushed at how things transpired today.

 

This is what exactly happened to me, my case is no different.  I don't think no matter what I did or say I was going to lose and the judge was going to side with the JDB no matter what and fit me the bill of an appeal.  Now CO appeals calls for a bond of the judgement and I don't think I can come up with that along with the appeal.

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This is what exactly happened to me, my case is no different.  I don't think no matter what I did or say I was going to lose and the judge was going to side with the JDB no matter what and fit me the bill of an appeal.  Now CO appeals calls for a bond of the judgement and I don't think I can come up with that along with the appeal.

Yeah, I could pretty well see right away that the judge was going to just let anything be admitted regardless of code. Was even reluctant to preclude an affidavit based on courts own order of preclusion! That's unfortunate that CO has a rule like that. That would certainly affect my decision too. Good luck with your case, I've decided to take mine to round two. Update coming soon.

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For future reference and for others reading; you will always have a far better chance of the judge applying and sticking to the rules (instead of simply siding with a fellow bar member) when you have a COURT REPORTER in the room; and are preserving an appellate record (court reporter, MIL's and proper objection). If he sees what direction his ruling is likely to take, he will be forced to play by the rules.

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For future reference and for others reading; you will always have a far better chance of the judge applying and sticking to the rules (instead of simply siding with a fellow bar member) when you have a COURT REPORTER in the room; and are preserving an appellate record (court reporter, MIL's and proper objection). If he sees what direction his ruling is likely to take, he will be forced to play by the rules.

 

This is good advice. I'm not sure what it would have cost me, but it would definitely have strengthened my appeal. 

 

As far as documents to be included in clerk's transcript, I'm thinking of having my MIL and declaration in support included to reiterate my CCP 97 objections. Should I have plaintiff's admitted exhibits included as well for appellate court to examine? I'm assuming so, if one of my arguments is going to be the inproper admission of evidence.. 

 

Any input appreciated, going to file my notice of appeal tomorrow, and would like to file to notice designating record at the same time (As i would only have 10 days to file it afterward.)

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This is good advice. I'm not sure what it would have cost me, but it would definitely have strengthened my appeal. 

Sometimes it eliminates the need for appeal, because the judge is more likely to apply the law in the first place. For the few people that wind up in a corrupt court it is critical. It's usually about $150. I always say it's not what it cost to get one, but what it might cost you if you don't have one, you probably covered yourself with the MIL however,

 

As far as documents to be included in clerk's transcript, I'm thinking of having my MIL and declaration in support included to reiterate my CCP 97 objections. Should I have plaintiff's admitted exhibits included as well for appellate court to examine? I'm assuming so, if one of my arguments is going to be the inproper admission of evidence.. 

I think the only thing that will be available for appellate review is anything that follows an objection, and whatever is in your MIL's. The exhibit should be in your MIL, if you were trying to preclude it. If not then you still try to get the exhibit admitted, especially since it is part of your objection.

 

Any input appreciated, going to file my notice of appeal tomorrow, and would like to file to notice designating record at the same time (As i would only have 10 days to file it afterward.)

That's what I would do. I think the appellate court will only be able to view certain evidence, from the case file. Whatever you managed to "preserve for appellate review" is what they will be able to review. Preserving is done by having a reporter, filing an MIL, and objecting properly (and actually saying the word "objection"). Without having a reporter there, you can't really pick everything you want them to review. However, since you filed the MIL's they will be able to see your objections there, as well as anytime you objected at trial (they may have limited information here however without the reporter; they will have to rely on what the "minutes" reflect). I would not let this discourage you however, since you filed the MIL's. 

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Yes, the ccp 97 objection which is the focus of MIL will be my primary appeal issue. I'm going to do a Statement on Appeal as the form of record of oral arguements, in which I'll list off the calling of the witness, and the authentication and admission of evidence and my subsequent objections to each as they happened at trial. Plaintiff will be able to submit a statement agreeing/proposing changes to these statements, then the judge who presided over trial will make revisions, at which time I can object to judge's revisions. This will form the record of oral arguments. While it may be inferior to a court reporter, I made it a clear point to continually object to everything even after judge had ruled on MIL and overruled other objections. I don't think plaintiff or judge will/can refute that I clearly objected citing multiple evidence codes to each and everything used to form standing/assignment. So on the strength of this agreed statement, my MIL, and trial minutes, I'll try to prove that I made valid objections that were arbitrarily overruled, thus trial court abused it's discretion in allowing the testimony of the witness, as well as the subsequent evidence being admitted to establish standing. No witness, no evidence, no standing, no suit. 

 

My MIL contains plaintiff's ccp96 statement as an exhibit.in clerk's ranscript,  I'll also include plaintiff's 2nd ccp96 statement, as well as each piece of evidence admitted that I'm refuting, though the core of my argument is the ccp 96/97 issue. 

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Yes, the ccp 97 objection which is the focus of MIL will be my primary appeal issue. I'm going to do a Statement on Appeal as the form of record of oral arguements, in which I'll list off the calling of the witness, and the authentication and admission of evidence and my subsequent objections to each as they happened at trial. Plaintiff will be able to submit a statement agreeing/proposing changes to these statements, then the judge who presided over trial will make revisions, at which time I can object to judge's revisions. This will form the record of oral arguments. While it may be inferior to a court reporter, I made it a clear point to continually object to everything even after judge had ruled on MIL and overruled other objections. I don't think plaintiff or judge will/can refute that I clearly objected citing multiple evidence codes to each and everything used to form standing/assignment. So on the strength of this agreed statement, my MIL, and trial minutes, I'll try to prove that I made valid objections that were arbitrarily overruled, thus trial court abused it's discretion in allowing the testimony of the witness, as well as the subsequent evidence being admitted to establish standing. No witness, no evidence, no standing, no suit. 

 

My MIL contains plaintiff's ccp96 statement as an exhibit.in clerk's ranscript,  I'll also include plaintiff's 2nd ccp96 statement, as well as each piece of evidence admitted that I'm refuting, though the core of my argument is the ccp 96/97 issue.

The Statement on Appeal is critical to your winning. If I remember you had a Trial Brief, your objections at the trial, hopefully will align or agree with much of your statement of appeal.

Basically, these were going to the be the objections (based on trial brief submitted) and then they were the objections used at trial (based on Statement of Appeal).

This will show the appeal court that you are not coming up with this after the judgement/decision.....

I think it will be interesting how the judge trys to revised the Statement of Appeal.

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