Jump to content

Questions about a MIL, and serving a MIL and a Trial Brief in California on Plaintiff's Counsel


Recommended Posts

Hi All,

 

I have 33 calendar days before my Trial

 

Plaintiff (OC) - Citibank South Dakota, N.A,

Plaintiff's Attorney - The Moore Law Group

Amount sued for - around $17,000

CCP 96 request served and BOP served on the Plaintiff

Plaintiff responsed to CCP 96 request and BOP and supplied the CCP98 declaration in Lieu by Dorothy Ruiz.

I sent them a letter by CMRR, noting that I was planning to object since they violated the statute by not providing proper witness addresses, as well as put the wrong case # on their response.

 

They sent me an amended CCP96 response just a few days ago, with a corrected case #, but again with no addresses for each possible witness, except for the Plaintiff attorney's PO Box and instructions to contact witnesses through the Plaintiff's Counsel (this screams denial of due process by Plaintiff's Counsel). And they amended without a stipulation

 

CCP96

(d)No additional, amended or late statement is permitted except by written stipulation or unless ordered for good cause on noticed motion.

 

So, my guess is that I include their transgression into my MIL, right?

 

Since I had some extra time, I filed an evidentiary objection against the declaration in lieu and have had it served on Plaintiff's Counsel. But reading all these wonderful posts here, now I am realizing that objecting a CCP98 DEC in Lieu with a MIL would be a more technically correct to do it, right? In addition to the MIL, can I refashion my evidentiary objection as the "evidentiary objection in support of the MIL" and have it re-served on the Plaintiff's counsel, or should I leave it alone?

 

I checked the Court's local rules and found out that MIL and Trial Brief are to be submitted on the day of trial. However, there was nothing in the local rules about a deadline to serve both on the opposing Counsel. In that case, do I just have to compliy to Rule 3.1548. Pretrial Submissions?

 

Pretrial exchange:

 

No later than 25 days before trial, each party must serve on all other parties the following:

.

.

.

 

(10)1pixel.gifMotions in limine.

 

 

So, I am using HomelessInCalifornia's excellent MIL as a starting point, but am adapting it to my case since I am dealing with an OC, and not a JDB. Now, are the days  before trial actually calendar days before trial? I know when filing regular motions and figuring out how to calendar them, the Court days are actually used, but not calendar days. So, for the purposes of the Trial, does the xxx days before Trial mean Court days or calendar days?

 

If it is calendar days and my calculation of 33 days before the Trial is right, according to the Rule 3.1548. Pretrial Submissions, do I need to (a) have my MIL mailed on the opposing Counsel at least 25 days before trial or does the opposing Counsel need to received the MIL 25 days before the trial?

 

Since I'll need to do carefully modify HomelessInCalifornia's MIL to my needs, I was wondering if I can still use the POS-30 form if I have the Plaintiff's Counsel served by Express/Overnight mail. The POS-030 mentions "first-class" mail, so I am not sure If I can still use the form.

 

Finally, I am planning to also subpoena the Plaintiff's CC98 affiant via the Sherrif Dept, but from what I have read and understood here is that I will not get the Sherriff's declaration of non-service literally until a couple of days before trial.

So, I am guessing I just get the MIL served in the Plaintiff's Counsel, but actually bring the Declaration in support of MIL to the day of trial, with the Sherrif's declaration of non-service as Exhibit "A"? Is that correct?

 

Also, what is the deadline to get the Trial Brief served on Plaintiff's Counsel? 25 days as with the other pretrial exchange documents?

 

 

Many Thanks

Link to comment
Share on other sites

HotWheels96:

 

Hold your horses! What's the address given on the CCP98?

 

The address they've given me on CCP98 is within 150 miles of the Court, but I know that address belongs to a process service company, and is not an affiant's actual address. At the bottom of the declaration, it says:

 

11. Pursuant to CCP Section 98, this affiant is available for service of process case of "We The Process Servers", 1234 Somewhere Street, SomewhereTown, CA 99999, for the 20 days immediately prior to trial.

 

 

So the only thing they gave you in response to the CCP96 was the CCP98 declaration? If so; that's not bad. You only have to show it is inadmissible or beat it to win.

 

Oh, sorry I didn't explain it more clearly. In addition to the CCP98 declaration, they have also sent the following doc:

 

"Plaintiff's Responses to Requests for Statement of Witnesses and Evidence"

 

So, there in paragraph 1, it says:

 

1) Responding Party, Citibank (South Dakota), N.A. intends to call Dorothy Ruiz, Assistant Vice President or on any of the following Assistant Vice Presidents designated as Custodian of Records and Authorized Agents who may possibly appear due to scheduling conflicts: Judy Delage, Steve Sabo, Richard Cameron, Brian Billings & Kara Brown.All Citibank witnesses should be contacted through: The Moore Law Group, APC, P.O. Box 25145,  Santa Ana, CA 92799-5145

 

I sent them a letter and pointed the fact there was no address (just the PO Box) and that the case # was wrong

 

 

So, just a few days ago, I got the amended "Plaintiff's Responses to Requests for Statement of Witnesses and Evidence", which had the paragraph changed to:

 

1) Responding Party, Citibank (South Dakota), N.A. intends to call Dorothy Ruiz, Assistant Vice President or on any of the following Assistant Vice Presidents designated as Custodian of Records and Authorized Agents who may possibly appear due to scheduling conflicts: Judy Delage, Steve Sabo, Richard Cameron, Brian Billings & Kara Brown.All Citibank witnesses should be contacted through: The Moore Law Group, APC,  3710 S. Susan Street, Suite 210, Santa Ana, CA 92704

 

They've changed the PO Box to an address without asking for a stipulation. Yet the new address exceeds the 150 mile requirement by more than 200 miles

Link to comment
Share on other sites

I wish you hadn't sent that letter, and instead included the inadmissibility in your MIL.

Anyway, since they are expecting you to serve (I'm assuming ABC Legal) rather than Dorothy, well, that's just freaking awesome for you! You've a new case to cite in your MIL regarding the requirements for the CCP98.

I'd still have the sheriff attempt to serve Dorothy at the location they gave you, making sure you're incredibly clear that the subpoena must be served to only Dorothy. Once you get the declaration of non service from the sheriff, you will include that in your MIL. It just gives you more ammo.

  • Like 2
Link to comment
Share on other sites

Ya be sure to attempt service. If you do and it fails you can use the new case law on CCP 98.

As for the declaration mine didn't show till about 4-5 days before trial. I was freaking that it wasn't going to be in time. What I did was state that that service was attempted and that the declaration was on its way. The day if trial I advised the judge that I had the declaration to give to him and gave a copy to the JDB prior to trial.

  • Like 1
Link to comment
Share on other sites

Thanks Anon Amos, HotWheel96 and ASTMedic. The remaining few things I am still trying to find out are:

 

Do I actually need to serve that MIL on the Plaintiff's Counsel at least 25 days before trial?
 

 

Rule 3.1548. Pretrial Submissions

 

Pretrial exchange:

 

No later than 25 days before trial, each party must serve on all other parties the following:

.

(10)1pixel.gifMotions in limine.

 

According to this, it seems like I need to, but I will mention that the declaration is on its way, per ASTMedic's advice. Thanks!

 

Can I serve this MIL via Express/Overnight mail but still use POS-30 form for the proof of service?

 

Thanks.

Link to comment
Share on other sites

To further confuse you, let's not forget 3.112( f ):

Motion in Limine

Notwithstanding ( a ), a motion in Limine filed before OR DURING trial need not be accompanied by a notice of hearing. Time timing and place of the filing and service of the motion are at the discretion of the trial judge.

Isn't that less than helpful?? Personally, I filed and served my MIL less than two weeks prior to trial with my Capital1 case.

Hopefully calawyer happens by and can answer that for you.

  • Like 1
Link to comment
Share on other sites

 

They've changed the PO Box to an address without asking for a stipulation. Yet the new address exceeds the 150 mile requirement by more than 200 miles

For the above reason I think it was a good idea you sent the letter. Now the addresses they've given you do not coincide with the CCP.

 

 

Also: They are supposed to give you a list of who they INTEND to call, not a laundry list of potential witnesses. So you have 2 reasons right there to discredit it and try to get the ccp96 response tossed.

 

 

1) only one witness is listed as "intended to be called" and is past the 150 mile limit.

 

2) all the others are listed as possible witnesses and none of them are within 150 miles.

Link to comment
Share on other sites

Thanks Anon Amos, HotWheel96 and ASTMedic. The remaining few things I am still trying to find out are:

 

Do I actually need to serve that MIL on the Plaintiff's Counsel at least 25 days before trial?

 

 

 

 

Look and see what your LOCAL court rules say (I bet they give you more time then that)

 

 

 

 

 

 

According to this, it seems like I need to, but I will mention that the declaration is on its way, per ASTMedic's advice. Thanks!

 

Can I serve this MIL via Express/Overnight mail but still use POS-30 form for the proof of service?

 

 

 

 

 

ASTMedic's opinion is probably not a bad idea. I don't think I would spend any money on overnight mail (but that is just my opinion) but I would use the POS-30 form (there is also a place on it where  you can say it was sent overnight (if you choose to overnight it).

 

 

 

 

 

Thanks.

Link to comment
Share on other sites

I got my MIL to preclude Declaration in Lieu almost completed. Now, I am curious how to attack their "Plaintiff's Responses to Requests for Statement of Witnesses and Evidence" that we have discussed above. Can I do another MIL for that, considering that, in addition to the list of witnesses mentioned there, there are also exhibits attached I'd like to attack?

 

This is what I I've go so far:

 

- Their original response had the wrong case # on it, and had a PO box (Lawyers' address) for multiple potential witnesses. PO Box was way outside of the 150 mile requirement

- I sent them that certified letter and cited statues they were out of compliance with

- Got their corrected response back before the 30 day before Trial deadline, but they never asked me to stipulate the amended response.

(I hope the letter I sent them can't be interpreted as stipulation)

- The amended response had the PO box changed to Lawyer's physical address, but still outside the 150 mile requirement

- The attached exhibits are: (1) Telephonic Citibank credit card application dated (date provided), (2) credit card statements for the span of several years and (3) copies of payments received by Plaintiff from Defendant

(1) - looks like some sort of computer report with some of my info. There is an application ID on it.

(2)- these look incomplete. the sheer number of pages they sent was intimidating, but on the close inspection there are a lot of blank pages and repeating info

(3) - and the check copies are illegible.

 

So, do I do a second MIL and attack them based on 150 mile rule, improper address given and other violations and then write an objection in support of MIL and tear their evidence into shreds (Lack of Foundation, Hearsay, Improper Authentication, Federal Rules of Evidence Rule 1002. Requirement of Original, Federal Rules of Evidence Rule 1003. Admissibility of Duplicates)? Is there a better way?

 

Thanks guys.

Link to comment
Share on other sites

So, do I do a second MIL and attack them based on 150 mile rule, improper address given and other violations and then write an objection in support of MIL and tear their evidence into shreds (Lack of Foundation, Hearsay, Improper Authentication, Federal Rules of Evidence Rule 1002. Requirement of Original, Federal Rules of Evidence Rule 1003. Admissibility of Duplicates)? Is there a better way?

 

Thanks guys.

No. The 150 miles pertain to the declarant in the ccp 98. The ccp 96 response to you is a separate matter (nothing about the 150 miles pertains to this). This is the list of everything they plan to use against you at trial(including witnesses),and they cannot introduce anything that is not on the list.

You can file a MIL for each piece of evidence you wish to strike. At trial, you can cross examine the witnesses on the list.

I always look up the California rules of evidence that coincide with the Federal rules of evidence and cite that rule.

  • Like 1
Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...