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@Anon Amos

Please, elaborate in exquisite detail about Standing. It is also on my Affirmative Defense.


If I may add: Unless I missed it, attack STANDING as well, just incase you do prevail on it, it will stop a trial from moving forward.


ALSO, not to muddy the water here, but this is an argument that I have always felt strongly about. Regardless of whether or not you do manage to personally serve them (which you won't) and regardless of what your court may claim, it does not have jurisdiction over the affiant / declarant or posses any power of subpoena.


CCP Sec 1989. Residency requirements for attendance of witness:  In relevant part  "A witness is not obliged to attend as a witness before any court, judge, justice or any other officer, unless the witness is a resident within the state at the time of service"

@Anon Amos
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Update, please?

Your series of events is _such_ an inspiration, and your online / on-site explanations move the daunting to the doable in such an easy-to-understand and able-to-emulate manner!

Boundless gratitude to you for your generosity & patience!



I suppose this is as good a time as any to announce this.  Been quiet as I've been in process with it, and I actually have a life to handle outside of here.


I have obtained counsel, working on contingency, through referral from here.  He comes highly recommended from the best source for California litigation on the site, so I feel quite comfortable.


We are suing CACH and Mandarich Law Group for Rosenthal violations in attempting to collect on a debt already judged not owing. 


We will be serving opposition shortly.


We are looking to move forward as a class action suit. Obviously, that would be open to individuals who have won judgment against CACH as represented by Mandarich Law Group but who have received collection notice or calls since winning judgment in favor of defense at trial or after the case was dismissed with prejudice.

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Update, please?

Your series of events is _such_ an inspiration, and your online / on-site explanations move the daunting to the doable in such an easy-to-understand and able-to-emulate manner!

Boundless gratitude to you for your generosity & patience!



In process.  Trial to be set in 2015.

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On 2/15/2014 at 0:35 PM, HomelessInCalifornia said:

I posted this in a private thread but thought it worthwhile enough to share in general:




You will notice several common factors here as you proceed:


1) You will get different and sometimes contradictory advice.  It happens.  Weigh it out and make the choice that makes sense to you and that you trust most.


2) There are different strategies toward winning.  Some may be better than others, but it often two different strategies can both lead to victory.


3) Two cases, with identical circumstances and identical strategies and matching evidence and identical briefs, can have two different verdicts. Justice is not absolute, and it varies as widely as the personalities of the judges hearing the cases.  I find this fact the most disconcerting of all.



I propose that you view this as a War.


A war is fought in battles.


So what are the battles that you are planning to fight?  What is your war plan?  Your strategy?


I suggest the following War Plan:




A) Battle One: Back The Plaintiff Into A Corner Where They Dismiss the Case on their Own




1) Demand for Bill of Particulars - Demand full account for date of inception to date of charge-off.  (They will not have this, and they will not produce this. Therefore, they will not be able to demonstrate underlying charges for an Account Stated Claim.)


2) Meet & Confer Letter - After they fail on the BOP, send a M&C granting extension of time to respond.  The court wants to see this attempt prior to any Motion to Compel.  Plaintiff will respond with a form letter that is unresponsive.


3) Request for Production - Simple, straight forward, one-time, 3 requests identical to those on ASTMedic's RFP (except change the dates and name of the OC to match). Don't forget to include the definitions. :Plaintiff will fail to produce any signed agreement. Plaintiff will fail to produce the forwarding agreement (the document from the OC to the JDB which tells the JDB that they don't guarantee the accuracy of anything). The Plaintiff will probably produce a photocopy of an application, a so-called "standard" agreement used at the time the alleged contract was made, a so-called "charge off" statement, and statements for a period of no longer than one year.  In other words, they will fail to fully comply with the RFP.


4) Motion to Compel - You go to the judge and ask them to compel (force) the plaintiff to produce the documents they have not produced in response to your RFP.  He/she sees that you have only asked for 3 things.  You didn't even use 35 requests spread over rogs and RFP and RFA.  Just 3 things.  Odds are high that he'll sign off on this with an Order compelling production.


5) Plaintiff does not want the documents compelled to be on the court records.  They don't want the judge or the public to see that they only paid $54 for the $1800 alleged debt.  They don't want the court to see that the OC (original creditor) specifically does NOT guarantee the accuracy of any of the records.  So ... Plaintiff dismisses (preferably WITH prejudice).


B ) Battle Two: Preclude Admission of Evidence


Let's say the Motion to Compel failed and/or the Plaintiff did NOT dismiss. What now?


Demonstrate that Plaintiff Lacks Standing to Sue and the so-called "evidence" submitted Lacks Authentication.


There is almost a certainty that the plaintiff will submit a "Declaration in Lieu of Testimony" under CCP 98 so as to authenticate their submitted evidence (as required by Evidence Code 1401) prior to admission under a Business Rule Exception -- pretending that the documents were all "prepared in the regular course" of business and pretending that their witness is qualified and has personal knowledge of the documents -- which he/she does not.  They do this to avoid paying the witness fees plus travel expenses and risk losing that in addition to the award that you would get in case they lost. They also do this so as to sweep their evidence into consideration without your being able to expose the witness as being unqualified.


1) Subpoena the Declarant - the declarant is supposed to be available for service at an address that is within 150 miles of the place of trial for 20 days prior to trial per CCP 98.  According to CCP 1987(a), a civil subpoena can ONLY be PERSONALLY served.  But plaintiff is going to try to claim that you can do substitute service (give it to someone else).  Their witness will be in Colorado or Minnesota.  You can't personally serve that witness within 150 miles of the place of trial.  Per CCP 1987(a), the court has no jurisdiciton over a witness who is NOT personally served. Also, per CCP 1989, a witness who is not a resident of the state at the time of service is NOT required to attend.  Without being able to require the declarant/witness to attend, the defense would be denied due process through cross-examination, and it would constitute an "unfair prejudice" against the Defense.


So, plaintiff will fail to comply with CCP 98, and their declaration and the evidence that it purports to authenticate will all be inadmissible -- if you point that out to the judge.


2) Motion in Limine to Preclude Admission of Declaration in Lieu of Testimony of ___________ and all Exhibits Thereto; Declaration in Support Thereof -- You will prepare this MIL re 98 and Decl. in Support of MIL re 98 and file and serve it roughly 5 days prior to trial.  You will point out the foregoing failure to comply with CCP 98. If the judge's head is not up his/her a$$, the MIL will be granted.


3) The plaintiff has no authenticated evidence to submit for consideration.  They will try to get you to say that you saw or had knowledge of any or all of the documents PRIOR to their production to you.  If you say yes, then you (as the only remaining qualified witness) will have authenticated the evidence and the trial will continue.  If you say NO, then plaintiff's case is done, and you move for Judgment in Favor of Defendant.  Case done.


C) Battle Three: Disqualify the Witness


Let's say that Plaintiff DOES bring a witness to court to testify and authenticate the evidence.  What do you do?


1) Cross-Examination - Using the questions in the document on my thread, you will impeach (question) the witness and show through the witness's answers that the witness is unqualified and therefore cannot authenticate anything. You will object to all the evidence as unauthenticated and request that the court preclude their admission and move therefore that the case be judged in favor of defendant.  Case over.


D) Battle Four: Demonstrate the Failure of Evidence - The Last Stand


Let's say that all of the foregoing failed and went against you.  The Declaration was admitted or the witness was ruled qualified and all the evidence was accepted into evidence.


1) Trial Brief + Oral Argument - You will have prepared an entire section of trial brief with individual "chapters" each devoted to one piece of evidence. You will have written out every inconsistency, misinformation, error, and omission and listed them.  You will show dates that don't make sense, missing signatures, lack of completion of the terms of contractual obligation, etc., etc.  My sample trial brief, frankly, is an excellent resource for seeing how to tear apart evidence.  I spent months working on this.  i never had to use it.  It is your last ditch stand.  You don't want the case to get this far, if you can avoid.  But if it happens, be prepared.



That's it.  You will fight battles.  But plan for the whole war.  Fight smart.  Pick a strategy and stick to it.


That's my advice.

Complicated but interesting read!

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@HomelessInCalifornia -- All I have to say after reading this entire thread is ... WOW.  I know this was almost 6-years ago, and I don't even know if you check messages/mentions/additions, but ... I have to personally say, THANKS!!  From the bottom of my heart!!  This thread and your documents are so incredibly invaluable -- I am awe struck.

Now, I know this is an old thread -- but IMHO it is one of the most important ones on the forum (along with @ASTMedic's, etc.).  SO ... since I am sure California peeps will find this thread in the future, I thought it important to post this short thread from @calawyer regarding the California Supreme Court's recent ruling on CCP 98.  

No more fighting and ambiguity -- THE AFFIANT HAS TO BE SERVED the SUBPOENA PERSONALLY ... PERIOD!

Modify your documents accordingly.




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