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Applicability of Target v. Rocha when CCP98 not cited?


qbert
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I'm preparing MIL for Unifund and they are attempting to enter an OC affidavit as evidence.

 

Plaintiff did not attempt to cite CCP98 (In other words its an 'affidavit', anot an 'affidavit in lieu of testimony)

 

and again since CCP98 isnt cited, plaintiff did not provide any address for service of affiant.

 

The robosigned affidavit is identical to the ones seen here and here

 

both of these cases predate target v. rocha, and ive only seen that case applied to CCP98 infractions specifically.

 

while defendant didnt cite CCP98, i made sure to cite that they are not compliant with ANY rule, and use that as an example

 

but im having a hard time coming up wih words exactly correlating that case to mine

 

thanks

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and again since CCP98 isnt cited, plaintiff did not provide any address for service of affiant.

 

 

They still have to provide an address for subpoena service regardless of whether or not it's  ccp 98 in lieu of live testimony (it's somewhere around CCP 2015).

 

A lot of the Target case may not pertain to yours; but the parts about due process and the importance of being able to cross examine a witness would. The court mentions the fact that the court does not have jurisdiction over an out of state citizen, that pertains to your case (not sure how helpful it is however) .

 

The Elkins case pertains to the fact that affidavits being hearsay should not be allowed at trial pertains to your case (I am pretty sure you know this already however)..

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If the affidavit does not even attempt to comply with CCP 98, then Target Bank does not apply.

 

But your arguments are even stronger and your authority is even more persuasive for an affidavit like this.  Affidavits are not admissible at trial unless they are permitted by a statute such as CCP 98 (if you object).  As the Court said in Elkins v. Superior court:

 

The rule and order that were applied in the present case called for the admission of declarations in lieu of direct testimony at trial. It is well established, however, that declarations constitute hearsay and are inadmissible at trial, subject to specific statutory exceptions, unless the parties stipulate to the admission of the declarations or fail to enter a hearsay objection. (Evid. Code, ? 1200; Lacrabere v. Wise (1904) 141 Cal. 554, 556-557 (Lacrabere); see also Estate of Fraysher (1956) 47 Cal.2d 131, 135; Fewel, supra, "23 Cal.2d at pp. 438-439 (conc. opn. of Traynor, J.); Pajaro Valley Water Management Agency v. McGrath (2005) 128 Cal.App.4th 1093, 1107; Windingo Mills v. Unemployment Ins. Appeals Bd. (1979) 92 Cal.App.3d 586, 597; Reifler v. Superior Court (1974) 39 Cal.App.3d 479, 484-485 (Reifler); In re Estate of Horman (1968) 265 Cal.App.2d 796, 805.)

 

 

Here is a link to that case:  http://www.lawlink.com/research/CaseLevel3/11243

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