BlackMetallic

Notice to Appear At and Attend Trial and Produce Documents

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Short Summary:

 

1 - Plaintiff: Citibank, South Dakota (N.A.)

2 - Plaintiff's Attorney: The Moore Law Group

3 - State: California

4 - Limited civil case - sued for in the neighborhood of $17K

5 - The debt is not past statute of limitations

6 - Served by substituted service

7 - Complaint answered (Complaint was unverified)

8 - Long period of inactivity on both sides

9 - No discovery propounded on either side

10 - Plaintiff filed CMC Statement

12 - Trial got set

13 - Defendant (me) sent a CCP96 request and a request for BOP

14 - Plaintiff sent response to BOP and a response to CCP96 statement and the CCP98 declaration in lieu

15 - Defendant sent a certified letter stating that Plaintiff got their case # wrong on their CCP96 response.

       Also, Defendant objected in that same letter that the Plaintiff used Plaintiff's counsel PO Box for the witnesses' address on  

       their CCP96 response (out of compliance)

16 - Plaintiff corrected their CCP 96 response and send the amended version.

        with the fixed case # and now the actual address for the potential witnesses instead of the PO Box

        (mind you, the new address is still the Plaintiff Lawyer's address, and they did not ask me for a stipulation to amend their

        CCP 96 response)

17 - Defendant filed an objection to Plaintiff's Declaration in Lieu with Court and had a copy served on Plaintiff

18 - Defendant then did some more research on this forum and found MIL is a better way to attack a declaration, so he created a MIL to preclude the admission of their Declaration in Lieu, and refashioned his objection so that it could be an objection in support of my MIL. This was served on the Plaintiff's Counsel.

 

And today, I get a surprise from the Plaintiff's counsel in the mail in the form of:

 

"Notice to Appear At And Attend Trial And Produce Documents (CCP Section 1987)"

"Request For Statement of Witnesses and Evidence (CCP96, DISC-015 form)"

 

Right off the bat, I can tell their CCP96 request is untimely. It has a postmark of Aug 22nd, 2013, and I've received it on August 24th, 2013. The trial is on September 13th, which basically means  they're giving me less than 30 days (21 days only) to respond. Now, do I just ignore their CCP 96 as untimely and object at trial, do I send them a letter saying they are untimely or do I serve an objection on them, saying they're untimely?

 

As far as the notice to appear goes, I am unsure how to handle their production of documents request. Shouldn't have they asked for all my CC statements (and they're asking for years and years of them) in the request for production of documents during discovery? Discovery is closed now. Are they trying to find a back door to do the discovery?

Can I object on the grounds that they have missed their Discovery window and now have no right to ask for the documents? Furthermore, they have not included any of the CC statements they're asking from me on their CCP 96. Do I still have to bring any docs with me (if I have any) and then object to the judge that these are inadmissible as evidence since they're not listed on Plaintiff's CCP 96 response?. Or can I just say that their request for production of documents under CCP 1987 is oppressive, burdensome, Plaintiff is on a fishing expedition, burden of Proof is on Plaintiff, etc.?

 

Also, the way I understand it, the deadline for requesting documents under CCP1987 is 25 days before trial (since they served me by mail, 5 days added), and I have received it only 21 days before the trial

 

Should I just object to their CCP1987 as being untimely?

 

 

Any help is greatly appreciated. I am at the point where I can clearly see some of the Plaintiff's screw-ups, but I still do not know the best way how to deal with their screw-ups to my advantage :-)

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As far as their response to you in the ccp 96 goes: They can only use the evidence and witnesses on the list against you at trial.

They don't have to do discovery, they can request documents from you in the notice to appear and produce (with the same effect as a subpoena). I am assuming You denied their allegations in your answer. So I would just appear and produce nothing (it is not your account and after a diligent search of your records you have found no evidence of any cc statements)Or just: after a diligent search you have found no cc statements. If they have not produced any cc statements in their ccp 96 response to you; and you do not produce any to them (since you have none)in your response to their notice to appear and produce; then you will not have to defend against the cc statements in trial.

They have not followed procedure as far as them requesting the ccp 96 from you in the fact that it is un timely. You can just ignore that. Even if it was timely; unless you wanted to add a witness to call or enter evidence of your own; you did not need to fill it out anyway. witnesses and exhibits that will be used for impeachment purposes only do not need to be listed.

You could object also to their ccp 1987 to you as untimely, and without waiving your right to the objection: respond with the fact that you have no cc statements to produce. Or you could just file an objection to the ccp 1987 as untimely.

There usually are a few things you can do, and you will have to make choices, but I would say it looks pretty good for you. Although I think you did mention that they had cancelled checks from you (that may be un legible), no sure if they show an account number.

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Furthermore, they have not included any of the CC statements they're asking from me on their CCP 96.

 

 

Actually, that was too much of a blanket statement for me to make. They have produced quite a few pages, and there are many cc statements in there, (lots of repeating and blank pages, too), but they also have gaps and some years and months are missing, too. In short, they're asking me for cc statements for the periods they have provided their copies of the cc statements, and for the periods they have not provided any of their copies of the cc statements. So, I guess my best bet may just be to object to their untimely request without saying anything about having or not having any cc statements at home.

 

If they have not produced any cc statements in their ccp 96 response to you; and you do not produce any to them (since you have none)in your response to their notice to appear and produce; then you will not have to defend against the cc statements in trial.

 

And I think some of the cc statements they have may be a weakness in my case. Can I use improper authentication objection against those (Cal. Evid. Code 1401), (Cal. Evid Code 1402)? Also, I am allowed to use the Federal Rules of Evidence Rule 1002. Requirement of Original, Federal Rules of Evidence Rule 1003. Admissibility of Duplicates.or is there a better California equivalent? Would their cc statements also constitute Hearsay?

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Actually, that was too much of a blanket statement for me to make. They have produced quite a few pages, and there are many cc statements in there, (lots of repeating and blank pages, too), but they also have gaps and some years and months are missing, too. In short, they're asking me for cc statements for the periods they have provided their copies of the cc statements, and for the periods they have not provided any of their copies of the cc statements. So, I guess my best bet may just be to object to their untimely request without saying anything about having or not having any cc statements at home.

 

 

And I think some of the cc statements they have may be a weakness in my case. Can I use improper authentication objection against those (Cal. Evid. Code 1401), (Cal. Evid Code 1402)? Also, I am allowed to use the Federal Rules of Evidence Rule 1002. Requirement of Original, Federal Rules of Evidence Rule 1003. Admissibility of Duplicates.or is there a better California equivalent? Would their cc statements also constitute Hearsay?

Got it. You probably are better off just filing an objection (with the court)to the ccp 96 as untimely.

Then you can file an MIL to strike the cc statements. If you look up the California rules of evidence you will find the equivalent to the federal rules and can sight them instead. Attack the foundation and authentication. Check the rules of authentication. Best evidence rule; I doubt they are true copies or duplicates (and they may have said they were), they were probably created for the sake of litigation and cannot overcome the business records exception to the hearsay rule. They introduced some cc statements but not the remaining statements (so you can use the rule of completeness to attack that)

I get a lot of objection from people here on what I just said about those cc statements, but I certainly would not just submit to them.

You can file a MIL for any other piece of evidence on their ccp 96 list as well.

Check out Homeless in California's thread where he mentions the judge saying it was the "authentication and foundation" issues that did it for him.

Good Luck.

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Regarding your first post of this thread:

on # 16, the witnesses they list on the ccp 96 to be called at trial do not have to have an address within 150 miles of the court; because they plan to call them as witnesses and there would be no need for you to subpoena them. However they are not supposed to list potentials; but actual witnesses they intend to call.

And # 17 & 18. It is the declarant of the ccp 98 declaration in lieu of live testimony that is supposed to be at their address within 150 miles of the court and available for subpoena service from 20 days before trial. You may need to subpoena the declarant (depending on the language about the service address).

Check out the Target v. Rocha case. It's on here somewhere, and there is more information on the subpoena as well. I think it may be on Homeless in California's thread (he may have been the first on here to cite the Target case).

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Yes, I have reused Homeless In California's MIL to preclude the admission of Declaration in Lieu, and have modified it to be used in my case. He did such a fantastic job on it! He has used Target v. Rocha in his MIL, so that has been tremendously helpful. Now, I'm checking my usps tracking # to see when Plaintiff will receive my MIL :-).

 

But I am also going to do the subpoena and then fire off a couple of objections against the Plaintiff's untimely CCP96 request and untimely CCP 1987 request. Not sure there's enough time to file them with court (their backlog is longer than what I have in time before the Trial), but will at least get the objections served on the Plaintiff's Counsel.

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