HomelessInCalifornia

GOING TO TRIAL IN CALIFORNIA

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Ah.  So if a witness is "an authorized agent" of a corporation (as in a Declaration in Lieu by plaintiff's agent), they must be named and their address given.  I see.

 

 

Wow.  Awesome case.  Talk about salient. Would be great to get this into my motion in limine and trial brief as a pre-emptive strike.

 

However, I don't know how to reference or cite it though and introduce it into the motion in limine.  It would be wonderful to get some language from this in there.

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I think Calawyer is going to post the citation as soon as he gets it.  It's "hot off the press" as he says.  

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I tracked down some "no contract exists" and "agreement to agree" language and drafted a possible insert thereon to incorporate into my Motion in Limine and Trial Brief.  Any input as to whether or not I should use this?:

 

 

Although the complaint purports to be based on an instrument in writing, the alleged “Acceptance Certificate” does not sat­isfy the legal prerequisites for a contract.

  1. Consideration Required. It is essential to the existence of a contract that there should be a sufficient cause or consideration (Civ. Code § 1550). Plaintiff has shown no evidence of any underlying “credit card” transactions or other transactions to account for the total amount Plaintiff claims was due to the Original Creditor by the Defendant and which “total” thereof Plaintiff attempts to collect. No evidence of “consideration” has been produced.
  2. When Written Instrument Is Contract. An instrument in writing is not a contract unless the instrument itself contains the contract to do the thing for the nonperformance of which an action may be brought. The writing must create a duty before a duty may be inferred from the writing. It is not sufficient that a cause of action is in some way remotely or indirectly connected with an instrument in writing or that the instrument is a link in the chain establishing the cause of action (Citizens Cas. Co. v. Otis Clark & Co. (1971) 19 Cal. App. 3d 294, 299-300. 96 Cal. Rptr. 838). The alleged “Acceptance Certificate” contains no contract nor does it state that it incorporates any terms and conditions on any alleged contract or agreement.
  3. Letters Are Not Written Instruments. An ordinary letter expressing feelings and intentions but not stating a completed contract is not an instrument in writing within Civil Code Section 1614, and a complaint based on an ordinary letter must allege consideration (Michaelian v. State Fund (1996) 50 Cal. App. 4th 1093, 1112, 58 Cal. Rptr. 2d 133; Foltz v. First Trust & Say. Bank (1948) 86 Cal. App. 2d 59, 61-62, 194 P.2d 135; Weisbrod v. Weisbrod (1938) 27 Cal. App. 2d 712, 719, 81 P.2d 633). No “completed contract” is stated within the alleged “Acceptance Certificate” and the alleged “Acceptance Certificate” does not even reference a separate or attached “Cardmember Agreement” or agreement of any kind.

The alleged “Acceptance Certificate” cannot be construed to be anything more than an “agreement to agree” and is not a contract. As such, Plaintiff’s cause for breach of contract is unsupported and there can be no relief or damages thereon.

  1. Agreement to Agree Is Determined by Reference to Parties' Expressed Intentions. Whether a writing constitutes a final agree­ment or is merely an agreement to make an agreement depends primarily on the intention of the parties. In the absence of ambigu­ity, this must be determined by a construction of the instrument taken as a whole (Rennick v. O.P.T.LO.N. Care, Inc. (9th Cir. 1996) 77 F.3d 309,314-316; Banner Entertainment v. Superior Court (1998) 62 Cal. App. 4th 348, 358, 72 Cal. Rptr. 2d 598; Beck v. American Health Group Internat. Inc. (1989) 211 Cal. App. 3d 1555, 1562,260 Cal. Rptr. 237; Smissaert v. Chiodo (1958) 163 Cal. App. 2d 827, 830, 330 P.2d 98).
  2. B. No Remedy for Failure to Agree. Neither law nor equity provides a remedy for breach of an agreement to agree in the future. An agreement to agree cannot be made the basis of a cause of action (Autryv. Republic Productions, Inc. (1947) 30 Cal. 2d 144, 151, 180 P.2d 888).
  3. Pleader's Interpretation of Ambiguous Agreement Must Be Alleged. When an ambiguous written contract is pleaded by attachment to and incorporation in a complaint or set forth in haec verba, and the complaint fails to allege the meaning ascribed by the pleader, the court will construe the language of the contract on its face to determine whether, as a matter of law, the contract is reasonably subject to a construction sufficient to sustain a cause of action for breach (Beck v. American Health Group Intemat. Inc. (1989) 211 Cal. App. 3d 1555, 1561-1562.260 Cal. Rptr. 237; Hillsman v. Sutter Community Hospitals (1984) 153 Cal. App. 3d 743, 749-750, 200 Cal. Rptr. 605).
  4. Interpretation Is Judicial Function. Interpretation of a written instrument is solely a judicial function unless the interpretation tums on the credibility of extrinsic evidence (Ocean­side 84 Ltd. v. Fidelity Federal Bank (1997) 56 Cal. App. 4th 1441, 1451, 66 Cal. Rptr. 2d 487; Beck v. American Health Group In­temat. Inc. (1989) 211 Cal. App. 3d 1555, 1561,260 Cal. Rptr. 237).
  5. Intent That Agreement Be Formalized. If there is a manifest intention that an agreement is not complete until it has been reduced to writing and signed by the parties, there is no binding or completed contract until that has been done (Rennick v. O.P.T.LO.N. Care, Inc. (9th Cir. 1996) 77 F.3d 309, 315-316; Banner Entertainment v. Superior Court (1998) 62 Cal. App. 4th 348, 358, 72 Cal. Rptr. 2d 598; Beck v. American Health Group Intemat. Inc. (1989) 211 Cal. App. 3d 1555, 1562, 260 Cal. Rptr. 237; Smissaert v. Chiodo (1958) 163 Cal. App. 2d 827, 830-831, 330 P.2d 98).
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I just received "Plaintiff's Response to Defendant's Request for Disclosures of Witnesses and Evidence Pursuant to CCP 96."

 

It's timely.

 

However, Plaintiff claims it intends to call one of these potential witnesses:  Magic West, Christie Coston, or Victoria Mason.

 

Magic West is the Declarant who signed the Declaration in Lieu.

 

Neither Christie Coston nor Victoria Mason are identified by address or contact information or means to depose them or who the hell they are.

 

However, they are named in one of Plaintiff's discovery responses (Response to Request No. 7 in the Response to RFP) as amongst "Plaintiff's authorized agents" (including other named individuals and "Plaintiff's attorney") who can testify as to Plaintiff's business records. 

 

I presume I should just prepare to object on hearsay and lacks foundation?  What kind of questions should I have for them?

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So you have recieved a CCP98 Declaration in Lieu in response to your CCP 96 request and it is timely or legaly meets procedural requirements.

Here is why the new case law just posted by CALawyer, is important to your case. If I recall Magic West is from out of state yet they have likely supplied an address in California within 150 miles of the court venue, where he can be personally served. (This should be in the declaration somewhere) You will serve a subpoena that is to be personally served (not accepted by someone on his behalf) on Magic West at the address in the declaration. At least 2 attempts need to be made. You will make 2 attempts, then have the whoever attempts to serve the subpoena supply a declartion of affidavit of the attempts.

Bases on the new case law the Declaration should be tossed via MIL prior to trial, and the otherside will have to provide a live witness in order to get any evidence of the debt before the court.

No need to subpoena the other 2 names because they have not supplied declarations. They can still testify should they show up because they are named as potential witnesses in responses to your CCP 96 request.

In most of these cases they never intend to truely call a witness, you goal is to force them to. Proper procedural steps along with the new case law the only way for them is to have one of these 3 show up for trial.

You are doing well and are in a good position becuase of your diligence and study. Keep it up and you should be successful in beating this case back...

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So you have recieved a CCP98 Declaration in Lieu in response to your CCP 96 request and it is timely or legaly meets procedural requirements.

Here is why the new case law just posted by CALawyer, is important to your case. If I recall Magic West is from out of state yet they have likely supplied an address in California within 150 miles of the court venue, where he can be personally served. (This should be in the declaration somewhere) You will serve a subpoena that is to be personally served (not accepted by someone on his behalf) on Magic West at the address in the declaration. At least 2 attempts need to be made. You will make 2 attempts, then have the whoever attempts to serve the subpoena supply a declartion of affidavit of the attempts.

Bases on the new case law the Declaration should be tossed via MIL prior to trial, and the otherside will have to provide a live witness in order to get any evidence of the debt before the court.

No need to subpoena the other 2 names because they have not supplied declarations. They can still testify should they show up because they are named as potential witnesses in responses to your CCP 96 request.

In most of these cases they never intend to truely call a witness, you goal is to force them to. Proper procedural steps along with the new case law the only way for them is to have one of these 3 show up for trial.

You are doing well and are in a good position becuase of your diligence and study. Keep it up and you should be successful in beating this case back...

 

In other words: they will more than likely be dismissing soon..

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Thanks, Skippy and Anon.  I'm spending time on this I really need to be spending job hunting and on general survival.  It's actually causing physical harm.

 

Magic West is located in Denver, Colorado, by his own declaration.

 

I still need to get a citation for the new case law to work into my motion in limine and trial brief.  It would be great if they dismissed this before I had to skip meals (literally) to pay for printing and copying these.

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  I'm spending time on this I really need to be spending job hunting and on general survival.  It's actually causing physical harm.

 

I know what you mean. It is actually a part of general survival. You seem to pick up on things rather quickly, and are doing well with your case, so I imagine you are working hard. You just have try to make it part of your schedule. But you also need a break from time to time, so you might do a day on the case, then a day looking for work, etc. These are tough times in which these jdb's file suits, they earn their name of bottom feeders.

 

You do need  to be careful of the stress, it actually does cause physical harm. Remember, take a break, get out a bit, you will be more productive.

 

You can find ink for your printer on Ebay and save some $, it's going to be tough, but it can be done.

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Thanks, Anon.  I just mailed my ccp 96 response to Plaintiff's request for witnesses and evidence, letting them know I will be using their witnesses and evidence for impeachment purposes.

 

I went to staples and bought envelopes to mail the MIL and the trial brief and little sticky divider tabs to stick onto sheets of paper to separate the exhibits.  That cost me $ 8.71 that I need NOW.  I'm guessing mailing will cost me $25-$30 I don't have.  There should be a special place in Hell for these ghouls.

 

I appreciate the moral support.  I'm just going thru the MIL and the trial brief today to copy the code and cite references into a separate document for my reference if I need it at trial.  Otherwise, keeping it light today.

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Calawyer came up with some awesome language and references in regard to the new Target National Bank v. Rocha decision:

 

Indeed, the Declaration in Lieu is almost identical to the declaration condemned in a very recent Superior Court of California case, Target National Bank v. Lucy I. Rocha[1] (May 16, 2013) ____ Cal. App. 4th Supp ____.

///


[1] The Target case has not yet been published in the official reports.  For that reason, defendant attaches a copy of the opinion for the Court’s convenience as Exhibit A hereto.  Page citations are to the pages of the copy attached hereto.

 

 

***

 

            Plaintiff _____________ (hereinafter, “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 Code Civ. Proc. § 90, et seq. Plaintiff has failed to comply with the requirements of these Rules of Civil Procedure. Said failure prejudices Defendant in this case, by attempting to deny cross examination of the Affiant, while refusing to make him available for service of a trial subpoena as is required by CCP §98. As such, the Declaration in Lieu of ___________  should not be allowed as the Court found in the very recent Superior Court of California case, Target National Bank v. Lucy I. Rocha  (May 16, 2013) ____ Cal. App. 4th Supp ____.  (See a true and correct copy of the Appellate court’s Order thereon, attached hereto as Exhibit A.)

 

***

 

Here, plaintiff has intentionally failed to comply with CCP § 98.  The witness, _________  plainly resides in ________  (state) and cannot be personally served with a subpoena in _________(state).  Thus, he has not given a “current address” where he is “available for service of process” under the Code.

            This is precisely the conclusion reached by the Court in the recent case of very recent Superior Court of California case, Target National Bank v. Lucy I. Rocha[1] (May 16, 2013) ____ Cal. App. 4th Supp ____.  There, Target sued Ms. Rocha for an alleged credit card debt exceeding $7,000.  Shortly before trial, Target served a declaration in lieu of live testimony at trial executed by a Tiffany Lewis of Minneapolis, Minnesota.  Because she resided out of state, Ms. Lewis gave the address of her counsel[2] as a place where she could be served.

            The Court held that Target failed to comply with CCP § 98 and it was an abuse of discretion to introduce the declaration at trial.  Id at p. 7.  The Court reviewed the history of CCP § 98 and noted the due process implications of presenting evidence by declaration at trial.  The Court concluded: “… a party may only introduce a witness’s declaration if the opposing party had the opportunity to cross-examine the witness at deposition or could require the witness to be subject to cross-examination at trial.”

            The Court further found that giving an attorney’s address or other location where the witness does not actually reside does not comply with CCP § 98.  Id at 7.  As the Court noted, “For all of the foregoing reasons, the Appellate Division concludes that the declaration offered by Target did not comply with Section 98 as Lewis was not available for service of process within 150 miles of the courthouse. Thus, the trial court abused its discretion in admitting the declaration as evidence. As that was the only evidence offered at trial, the judgment in favor of Target cannot stand.”

B. Statutory prerequisites of Code of Civ. Proc. § 98

                        Here, as in Target, Plaintiff has not complied with the requirements of Code Civ. Proc. § 98(a), resulting in material prejudice to Defendant. Therefore, Plaintiff should not be permitted to introduce its Declaration in Lieu at Trial.


[1] The Target case has not yet been published in the official reports.  For that reason, defendant attaches a copy of the opinion for the Court’s convenience as Exhibit A hereto.  Page citations are to the pages of the copy attached hereto.

 

[2] As it turned out, the address given was actually an attorney service not the address of counsel.  This discrepancy was not material to the Court’s decision.

 

***

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I just received "Plaintiff's Response to Defendant's Request for Disclosures of Witnesses and Evidence Pursuant to CCP 96."

 

It's timely.

 

However, Plaintiff claims it intends to call one of these potential witnesses:  Magic West, Christie Coston, or Victoria Mason.

 

Magic West is the Declarant who signed the Declaration in Lieu.

 

Neither Christie Coston nor Victoria Mason are identified by address or contact information or means to depose them or who the hell they are.

 

However, they are named in one of Plaintiff's discovery responses (Response to Request No. 7 in the Response to RFP) as amongst "Plaintiff's authorized agents" (including other named individuals and "Plaintiff's attorney") who can testify as to Plaintiff's business records. 

 

I presume I should just prepare to object on hearsay and lacks foundation?  What kind of questions should I have for them?

They did the same to me and I sent a basic meet and confer stating they can't just say oh we might bring so and so and so and so. I can email you that letter if you like. Short and sweet.

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Homeless in California,

 

Read your Motion in Limine posted on another thread (FINALLY! A great California opinion on CCP 98) and it has some great content. That new Target case solves a lot of problems regarding Declaration in Lieu of Testimony and makes the motion flow a lot better. You have a very good chance of winning with that content. 

 

The big thing I noticed, (which hopefully someone with more experience in Motion in Limine can provide the answer) was that your memorandum and points exceeded 15 pages. I am not 100% sure whether a motion in limine has to comply with the 15 page limit rule, but I always thought it did. Also, typically motions over 10 pages need a table of contents and table of authorities. Would hate to see you file a motion that can be picked apart due to these rules. Again, hopefully someone with more experience (Calawyer, Seadragon) on Motion in Limine can clarify this.

 

Please don't panic at my comments, I know one of the experts will know the official answer regarding page limits and motion in limine. 

 

California Rules of Court, Rule 3.1113 provides: 

(d) Length of memorandum 

Except in a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 15 pages. In a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 20 pages. No reply or closing memorandum may exceed 10 pages. The page limit does not include exhibits, declarations, attachments, the table of contents, the table of authorities, or the proof of service." 



(f) Format of longer memorandum

 

 A memorandum that exceeds 10 pages must include a table of contents and a table of authorities

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A MIL should be very short and to the point. I wouldn't think you would be anywhere near 15 pages. (unless maybe you are trying to strike every piece of evidence with 1 MIL) I guess you posted your MIL somewhere, but I did not read it. I filed 7 MIL's, each one was 2 pages + a part of a page for the declaration, and the evidence I was trying to strike as an exhibit. Just my 2 cents.

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A MIL should be very short and to the point. I wouldn't think you would be anywhere near 15 pages. (unless maybe you are trying to strike every piece of evidence with 1 MIL) I guess you posted your MIL somewhere, but I did not read it. I filed 7 MIL's, each one was 2 pages + a part of a page for the declaration, and the evidence I was trying to strike as an exhibit. Just my 2 cents.

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OMG.  Help.  If that is the case, then  I need to chop this up, and I need to do it fast.  I was going to take today off (it's my b-day); and finish the trial brief in the next 3 days and hopefully serve all on Monday (depending upon completion of process service).  Suggestions?

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They did the same to me and I sent a basic meet and confer stating they can't just say oh we might bring so and so and so and so. I can email you that letter if you like. Short and sweet.

@MuteDebt,

I'm interested to see your basic meet and confer letter.

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Homeless in California,

 

 

I did some research on this issue and it does appear that Motion in Limine need to comply to the page limit motion rules. I went back and re-read your Motion in Limine and I agree with Anon Amos that it should be multiple motions, which would solve the whole problem. The way you wrote it, you could easily separate it into two motions. 

 

The first one would be specifically about the the declaration and exhibits presented under CCP98.

You could call it Motion in Limine #1 To Exclude the Declaration and Exhibits under C.C.P 98.

 

The second motion would be about the Bill of Particulars.

It could be called Motion in Limine #2 To Preclude Evidence under C.C.P. 454

 

If you broke it up this way you could probably get MIL #1 down to 10 pages and maybe 7 pages for MIL #2.  You probably would have to do very little editing of your original motion to accomplish this. This would conform to the rules regarding motion memorandum and you would not need a table of contents or table of authorities.

 

 

Also, I noticed this morning you did not post a declaration in support of you Motion in Limine. I wanted to remind you a declaration needs to be included with any Motion in Limine. I posted a sample MIL with declaration as a PDF so you know what a declaration looks like if you have not done one yet.  Good luck. 

 

 

I am not an Attorney

MIL.pdf

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I have a Declaration in Support of Motion in Limine.

 

Can I just change it's title to Declaration in Support of Motions in Limine?

 

I am working on splitting the MIL atm.  I have a:  1) Motion in Limine to Prelude Evidence Pursuant to CCP 454; and 2) Motion in Limine to Preclude and Strike Declaration Per CCP 98.

 

The CCP 454 motion is 7 pages long.

 

The CCP 98 motion is 15 pages long.

 

I am trying to put together a TOC and TOA for the CCP 98 MIL.  I'm having trouble with that.

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I believe you need one declaration for each motion. In the post above, Anon Amos made it sound like he did a declaration for each motion. I'm sure he would know the exact answer since he separated motions before. Hopefully he can respond to this issue. If your first motion is still 15 pages even after breaking it apart, that would need a TOC and TOA.

Here are two examples of TOC and TOA.

 

 

 

 

 

 

 

I am not an Attorney

CaLawyer Sample-motion-to-compel-answers.pdf

Table of Authories Good.pdf

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