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Serve subpoena on CCP98 DAY BEFORE TRIAL?


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Tomorrow is the big day. I'm working on getting my info together for my defense and to get their evidence excluded. To make a procedural exclusion rather than argue an evidentiary exclusion, I think trying to serve a subpoena at the address given- a process server's office in Riverside- will do it easily. My problem is that I've not gotten this done yet, tomorrow is the court date- can I attempt to serve the subpoena TODAY? There's not enough time to serve, submit it to the court and serve the plaintiff's council by mail, so if I did it, I'd have to bring the proof of service with me to court tomorrow.

 

Stupid idea? Not enough time, so the judge will exclude the attempt? Good idea? It's 12PM and the address to serve is almost 2 hours drive away, so I have to leave ASAP for my wife to be able to serve. (she is not party to the case.) 

 

Thanks,

Phoenix02

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If you plan to have your wife serve it and they don't want to accept it just have leave it and explain in her declaration how, where or with whom she left it with. Pertyasapeso had her son's girlfriend serve it and judge accepted the declaration and won.

But will you have time to put that in your mil or tb and submit to the courts and otherside or can you submit day of trial?

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My understanding of ccp 1987 is they need to be served 20 days prior to trial unless court says a shorter time. California friends is this not correct? Here is the rule.

Ccp1987

(a)Except as provided in Sections 68097.1 to 68097.8, inclusive, of the Government Code, the service of a subpoena is made by delivering a copy, or a ticket containing its substance, to the witness personally, giving or offering to the witness at the same time, if demanded by him or her, the fees to which he or she is entitled for travel to and from the place designated, and one day's attendance there. The service shall be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance. The service may be made by any person. If service is to be made on a minor, service shall be made on the minor's parent, guardian, conservator, or similar fiduciary, or if one of those persons cannot be located with reasonable diligence, service shall be made on any person having the care or control of the minor or with whom the minor resides or by whom the minor is employed, and on the minor if the minor is 12 years of age or older. If the minor is alleged to come within the description of Section 300, 601, or 602 of the Welfare and Institutions Code and the minor is not in the custody of a parent or guardian, regardless of the age of the minor, service also shall be made upon the designated agent for service of process at the county child welfare department or the probation department under whose jurisdiction the minor has been placed.

(b)In the case of the production of a party to the record of any civil action or proceeding or of a person for whose immediate benefit an action or proceeding is prosecuted or defended or of anyone who is an officer, director, or managing agent of any such party or person, the service of a subpoena upon any such witness is not required if written notice requesting the witness to attend before a court, or at a trial of an issue therein, with the time and place thereof, is served upon the attorney of that party or person. The notice shall be served at least 10 days before the time required for attendance unless the court prescribes a shorter time. If entitled thereto, the witness, upon demand, shall be paid witness fees and mileage before being required to testify. The giving of the notice shall have the same effect as service of a subpoena on the witness, and the parties shall have those rights and the court may make those orders, including the imposition of sanctions, as in the case of a subpoena for attendance before the court.

©If the notice specified in subdivision (B) is served at least 20 days before the time required for attendance, or within any shorter period of time as the court may order, it may include a request that the party or person bring with him or her books, documents or other things. The notice shall state the exact materials or things desired and that the party or person has them in his or her possession or under his or her control. Within five days thereafter, or any other time period as the court may allow, the party or person of whom the request is made may serve written objections to the request or any part thereof, with a statement of grounds. Thereafter, upon noticed motion of the requesting party, accompanied by a showing of good cause and of materiality of the items to the issues, the court may order production of items to which objection was made, unless the objecting party or person establishes good cause for nonproduction or production under limitations or conditions. The procedure of this subdivision is alternative to the procedure provided by Sections 1985 and 1987.5 in the cases herein provided for, and no subpoena duces tecum shall be required.

Subject to this subdivision, the notice provided in this subdivision shall have the same effect as is provided in subdivision (B) as to a notice for attendance of that party or person.

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Does not apply I believe, as this is in direct response to a CCP 98 Declaration. As such, they affiant states they are available for service the 20 days prior to the trial date at the given address. 

 

CCP 98 

...

(a)A copy has been served on the party against whom it is offered at least 30 days prior to the trial, together with a current address of the affiant that is within 150 miles of the place of trial, and the affiant is available for service of process at that place for a reasonable period of time, during the 20 days immediately prior to trial.

...

 

The only concern is the "reasonable amount of time" clause in there. Day before seems legally acceptable, but may not be "reasonable amount of time." Does this mean they will be AT the address for service a reasonable percentage of each day for the 20 days prior to trial for service, or does it mean service should be in a "reasonable time" before trial? I believe the former rather than the latter, as if it was the latter, it would make more sense for it to read- "Available for service x number of days before the trial date, not to exceed y number of days" or something of that sort.

 

Thanks,

Phoenix02

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I'd service it twice today ... at 2 different times.  It is NOT the ideal way to go, but without the attempt an MIL re failure to comply with CCP 98 is much harder to argue.  The point is that the witness MUST be available for PERSONAL service at an address that is WITHIN 150 MILES OF THE PLACE OF TRIAL for 20 Days prior to trial.  The day before trial DOES fall within that time limit.

 

This is doing it 11th hour, and not the ideal way to go, but get it done is my suggestion.

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Just finished. The person at the desk of the process server's office told wife that there was nobody there by that name, she had never known anyone who works there by that name, and nobody had been there by that name in the previous 20 days.

Now, should I get wife's statement filed at the court today, or can I do it tomorrow before trial, or at the trial? Wife will be there with me, so I could call her as a witness if need be.

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I would do it today. Make out an affidavit or verification (verification doesn't have to be motorized) and just do it. And actually a MIL means at trial, so if you write one up it serves 2 purposes...gives you notes so you can object properly during trial, preserves your objections at trial in case you get ruled against, it is on record for appeal. You can file it to the court right before trial, and hand a copy to the attorney when you go in. Homelessinca wrote yp a brilliant one that includes the new case law target vs rocha which states you can't leave the ccp98 subpoena with anyone but the person you are subpoenaing. Print his out, mark it up to fit your case, change a few things, and go.

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