HomelessInCalifornia

GOING TO TRIAL IN CALIFORNIA

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LASD attempted service on 05/29, 05/30 and 06/03.

 

I have the proof of service.

 

I called the LASD back because despite explicit instructions the Sheriff did not do substituted service thereafter.

 

The deputy I spoke with verified these instructions and said the Sheriff's office refused to do substitute service because you can NOT do that on a civil subpoena.  They refused to go back and do a substituted service.

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Now what? Do you file that with the court showing they couldn't be served after several attempts?

 

Yes.  I file it as an Exhibit to the "Declaration in Support of Defendant's Motion in Limine to Strike Declaration in Lieu of Direct Testimony of _________________ and to Preclude Admission of Evidence" along with a copy of the Subpoena and a copy of the Declaration in Lieu.  Of course, I also file a Motion in Limine to Strike Declaration in Lieu of Direct Testimony of _________________ and to Preclude Admission of Evidence with a copy of the Target National Bank v. Lucy Rocha Order.  I think Redacted copies of the Motion in Limine and Declaration in Support are posted in this thread as well as a copy of the Target v. Rocha Order.

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I cut the trial brief down from 73 pages to 41.

 

I think this is strong.  Let me know.  :-)

 

attachicon.gifNEW [REDACTED TRIAL BRIEF 060313.doc]

I like the flow but at the end with the other info after the prayer for relief, I think that should tread a little softer, Not saying that we aren't in the land of the free and the home of the brave, but it could turn a judge who is impressed with the preceeding argument to not want to deal with the attack of them in a court filing. Don't get me wrong, I am all for in their face kind of stuff, but even though it is all true statements it radically changes the tone of your brief. Further it adds some more information that would make the court ask why all this stuff happened. I am thinking that you should consider removing that stuff because it cracks open some door that the plaintiff or the court can exploit to render a decision for plaintiff if the court is plaintiff leaning, and might make a slightly defendant leaning judge not want to let these statements remain in the record.

Where you have tied the courts hands beautifully, the last statements may break the spell.

Just sayin. All the rest is spot on. very good. For the record I am looking up info on the judge and his rulings.

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Hi Seadragon. I like all that stuff at the end because its so true. But I agree with you about taking that out. I have not been in the loop about a recent appeals case in our favor. What's that about?

 

Target National Bank v. Lucy Rocha ... California Appellate Court put its foot down on the Declaration in Lieu of Testimony of out-of-state declarants trying to squeeze unauthenticated evidence into admission under a business rule exception to CCP 98.  JDB plaintiffs have tried using a local address within 150 miles of the place of trial to give the illusion that personal service of civil subpoena can be performed on their declarants, but of course the declarants aren't really there.  It's been a big scam.

 

In my own case, the Los Angeles Sheriff's Department refused to go back and do a substitute service, because as they said, "You can't do that with a civil subpoena."

 

This is a key case for litigation in California henceforth.

 

TARGET v ROCHA ORDER.pdf

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FIRE IN THE HOLE!

 

Both MIL's plus the trial brief, plus 3 declarations (one per MIL and one for the trial brief), plus a proposed Order were served and filed with the court by me today.

 

Woot!

 

CHARGE!!!

BATTLE FACE ON.... :complainer:

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Hi Seadragon. I like all that stuff at the end because its so true. But I agree with you about taking that out. I have not been in the loop about a recent appeals case in our favor. What's that about?

This new case that addresses the "in care of" service in CCP98 declarations. My bad it is a Santa Clara Couty Appellate division decision.

Target Bank v. some lady.

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My case was assigned to a Commissioner.  I didn't know what that is.  Just did a little research online.  If I read right, both parties have to stipulate that it is okay to be heard by a Commissioner.  Otherwise, the case has to go before a judge.

 

Do I want a judge to hear the case rather than a Commissioner?  As the law is on my side, I would think I want someone who knows the law to judge the case.

 

Advice?

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Did the plaintiff ask for the commissioner? Regardless; I would object. It's just going to be an attempt to scare you into a settlement. They filed a lawsuit; so if they don't want to see a judge or trial then they can dismiss the case.

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My case was assigned to a Commissioner.  I didn't know what that is.  Just did a little research online.  If I read right, both parties have to stipulate that it is okay to be heard by a Commissioner.  Otherwise, the case has to go before a judge.

 

Do I want a judge to hear the case rather than a Commissioner?  As the law is on my side, I would think I want someone who knows the law to judge the case.

 

Advice?

 

In my county Commisioners are to Judges like a Physian Assistant is to a Doctor.  My jurisdiction uses them in litigation that should be less complex and fairly straight foward.  Here are some issue you have to weigh in making this decision-

 

1.  Your case will certainly get additional scrutiney once you say no to the commissioner, as you are upsetting the normal process of them getting cases completed. 

 

2.  You may have to be rescheduled for another day and time, so be prepared for that possibility.

 

3.  If you have to explain the new case law which is the nail in the coffin for the othersied, will it be easier to convince a commisioner or a real judge.

 

Finally, for me I would probably go with the commisioner rather than be rescheduled.  If I can get a judge and stay on time then I go judge.  Point is for me, and  I believe you are prepared and ready, waiting another 2 months doesn't improve your case.....

 

Tough Call either way...

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My case was assigned to a Commissioner.  I didn't know what that is.  Just did a little research online.  If I read right, both parties have to stipulate that it is okay to be heard by a Commissioner.  Otherwise, the case has to go before a judge.

 

Do I want a judge to hear the case rather than a Commissioner?  As the law is on my side, I would think I want someone who knows the law to judge the case.

 

Advice?

depends on the commissioner, you would have to see them rule in court to gage that(I think someone resembling me told someone before to observe the courts rulings) you never know because insisting on the judge may piss the judge off.

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Hmm.  K.  The court is a 40 minute drive away each way.  It's not practical or financially viable for me to sit in on hearings before the trial date.  We have a settlement conference scheduled at 10 and trial at 1:30.  I suspect the commissioner will be the one conducting the MSC and the court will be dark till 1:30.  The MSC is in the same department.  If the court opens before trial for hearings, I'll sit in.

 

I have been unable to find any rulings or really anything at all about this Commissioner. 

 

I'm leaning to going as is.  If the guy can read and does read the MIL's, it's over, and I can get on with my life.

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I'm leaning to going as is.  If the guy can read and does read the MIL's, it's over, and I can get on with my life.

That may be a good idea, like Seadragon said you don't want to upset the judge. It seems like your case is moving very fast; it's a good thing you are such a quick learner.

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But definitely, DO THE SUBPOENA.  I will serve it to the address in Upland.  That's only 20 minutes from my work. 

Sorry to threadjack.  My trial is on 6/12.  I mailed my request per CCP section 96, and plaintiff responded with Declaration of Authorized Agent in Lieu of Live Testimony per CCP 98.  I did NOT subpoena the authorized agent.  Am I at a disadvantage?

 

Or can I still argue that since I am unable to cross-examine the agent via live testimony, and therefore the judge should rule in my favor with respect to standing and proper assignment?    

 

Thanks a million in advance!

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Or can I still argue that since I am unable to cross-examine the agent via live testimony, and therefore the judge should rule in my favor with respect to standing and proper assignment?     the judge should enforce my constitutional right to due process. 

 

 

As the testimony from the declaration  is being read or comments are referring to it  at trial you would: "OBJECTION...Hearsay". You probably have time to draft a motion in limine to strike it, and bring that with you to the trial. You can also argue the points in the Target case (court does not have jurisdiction over citizens of another state, and that it is your right to due process to be able to cross examine the witness.)

If (when) the lawyer shows up without a witness; you can make it hard on him/her because there will be no one there to authenticate the evidence, no one with first hand knowledge, most everything will be hearsay, and the lawyer cannot testify.

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Sorry to threadjack.  My trial is on 6/12.  I mailed my request per CCP section 96, and plaintiff responded with Declaration of Authorized Agent in Lieu of Live Testimony per CCP 98.  I did NOT subpoena the authorized agent.  Am I at a disadvantage?

 

Or can I still argue that since I am unable to cross-examine the agent via live testimony, and therefore the judge should rule in my favor with respect to standing and proper assignment?    

 

Thanks a million in advance!

Try to subpeona them today!

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For those whose case is in California, I just discovered this document on the web.  I found it so useful, I feel I have to share.  It is a list of California Trial Objections & Authority for each, broken down by topic and for both witnesses and evidence. 

 

 

California-Trial-Objections.doc

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It is going to be hard for you to prepare it in advance.  The best prep you can do is to understand each element that plaintiff is required to prove.  You closing should be a short list of the evidence that was lacking.

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