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CCP 96, CCP98 and CCP1987...can anyone teach me in plain simple way

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Gentlemen/ Ladies,

 

Can anyone teach me in a very plain simple way, how to make use of CCP 96, 98 and even CCP 1987 to get the best possible for defendant against JDB ?

 

I read and heard about the "within 150 miles" issues, but I am confused how to handle differently to witness within/ & beyond 150 miles distance?

 

Also, when is a good time to send CCP96 & 98 ? My feeling is if too close to the trial, defendant will not have sufficient time, then, when is it considered to early that the plaintiff JDB simple refuse to reply?

 

Last, CCP 1987, how does it applies to work with 96&98 ??

 

Million thanks

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they are all different statutes. you can read about them here:

 

http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=ccp

 

CCP96 is the authority under which you request a statement of witnesses and evidence

 

CCP98 is the authority under which JDBs often attempt to submit hearsay 'affidavits' in lieu of testimony. they need to provide a witness within 150 miles. go read 'How I beat Midland in CA' front to back....and then read it again... and then search forums for 'target v. rocha'... and then ask some questions

 

CCP1987 are the regs concerning how to properly subpoena a witness. if you need to subpoena you need to understand these

 

CCP 96 request should be filed just inside of 45 days of the trial so you have the ability to do motions or subpoena witnesses effectively. if subpoenaing a witness under CCP98 it should be just under 20 days out so you can act on teh failed service via MIL or trial brief

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@qbert:

 

First of all, thank you for your reply.

 

I am from Los Angeles, California. My case is located at Chatsworth Courthouse. My experience with that calender dept staff is that they schedule motions about 60 days away. With that situation, how many days should I ...??

 

Million thanks

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CCP § 96 allows you to ask the other side to reveal the evidence and witnesses they are going to have at trial.  You serve it at earliest 45 days before trial (count backwards from the trial date, when your finger lands at T-1 on the calendar count "one", then the next day back is "two" and when you get to 45 your finger is on the first day that you can validly send the §96 request).  The latest you can serve it is 30 days before trial.  An example of the benefit from this, is that if they fail to name a witness (for example if they simply say "person most knowlegable about your account), and that unnamed witness then physically shows up in court to testify, then you can argue in court that the witness should be precluded.  They should have named the witness so you could research that person and prepare a cross-examination or whatever.  Another benefit is that it gives you some idea what you'll be facing in court if the trial goes forward.

 

CCP § 98 is the statute that the debt collector tries to use.  You need to know it so that you can point out how the debt collector is using it incorrectly.  Normally, in a big trial (greater that $25K at stake) a litigant cannot simply turn in written testimony.  Normally, if a party wants to rely upon certain testimony, they have to make sure that witness is physically in the courtroom to testify, where the opposing party would have a chance to cross-examine them.  However, because of CCP § 98, in "limited jurisdiction" cases (i.e., less that $25K at stake), a party is allowed to simply submit testimony of a witness on paper, all written up in advance and signed under penalty of perjury.  That is called a CCP § 98 Declaration.  However, in order to safeguard your right to cross-examine the witness if you really want to, any party using a §98 declaration is required to follow certain procedures and to satisfy the requirements of § 98. 

 

The CCP § 98 requirements that debt collectors normally screw up or ignore, are the requirements that 1) the declaration be served on you at least 30-days prior to trial; 2) that the affiant (aka the declarant / person who signed the thing) has to provide their current address, which is supposed to be within 150 miles of the court; and 3) they are supposed to be reasonably available for service of process at that place in the 20 days prior to trial.  Numbers 2-3 are usually the big ones, because debt collectors always have some robo-stamper ink their name on the thing and half the time they don't say what their address is, but instead simply provide a list of "care of" addresses from all over the state, many of which are not within 150-miles, and none of which are likely to be the address "of the affiant" (unless they are very small and live in a rented mailbox at ABC legal).

 

CCP § 1987 is important because it describes how service of a subpoena duces tecum is supposed to be served -- i.e., in person.  (A subpoena duces tecum is the kind of subpoena that requires somebody to be in court for something.  Contrary to allowing service at a "care of" address, it provides absolutely no alternative to in-person service.  This is to be expected, because there are potential criminal penalties for ignoring a subpoena -- the judge could issue a warrant for the arrest of somebody who fails to show up for a subpoena.  But a judge would be flat out violating somebody's civil rights if they issued a arrest warrent for somebody who was not personally given that subpoena.  that is why personal service is required, and why a list of P.O. box on a § 98 Declaration does not enable you to serve the affiant.  By depriving you of the ability to validly effect service on the affiant, the debt collector is failing to comply with § 98.  If the debt collector does not comply with § 98, then the § 98 declaration should not be admissible in court, because § 98 describes a special exception to the normal rule where a witness would have to attend in person, and they did not fall within the exception if they don't follow the rule.

 

Bonus info., that I haven't seen too many people discuss: CCP § 1989 makes clear that the court has no jurisdiction to compel the attendance of somebody "unless the witness is a resident within the state at the time of service."  This can be useful to know because sometimes the affiant actually does specify their physical, out of state business address, and you can point this out to the court as an additional reason why, even if the process server had given the subpoena to the receptionist at whatever-law-firm, it would still be an invalid subpoena that the Court would have no power to enforce.

 

How do you use all this is the next question.   The most basic way, is to simply have all this information in hand and object at trial.  The next best thing is to submit a trial brief that states all of this and object at trial, this way there is somthing on paper to back up your contention that you made such objections.  The way that requires the most in-advance preparation is to file some sort of motion in advance of trial.

 

I've seen other posts around, where people cite to some good cases and so forth about how to take advantage of this dynamic.  But the above, is kind of a primer that maybe will help you grasp all the other stuff that you'll find around.

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@CollectionDefenseGuy:

 

Are you from Los Angeles area? Attorney?

 

Regarding when is a good time to do CCP 96/98/1987 or even 1989, this is another one I am concern, especially this is the case here in Los Angeles, the lawsuit I have is located in Chatsworth, which a motion calendar date is usually 2 months down the road, any advice on how to counting the dates....

 

Million thanks

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Bonus info., that I haven't seen too many people discuss: CCP § 1989 makes clear that the court has no jurisdiction to compel the attendance of somebody "unless the witness is a resident within the state at the time of service."  This can be useful to know because sometimes the affiant actually does specify their physical, out of state business address, and you can point this out to the court as an additional reason why, even if the process server had given the subpoena to the receptionist at whatever-law-firm, it would still be an invalid subpoena that the Court would have no power to enforce.

 

 

 

We used to make this argument all the time.  It is unnecessary now that Target v. Rocha has been decided.  That case holds that a declaration not complying with CCP 98, can't be admitted into evidence at trial.

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We used to make this argument all the time.  It is unnecessary now that Target v. Rocha has been decided.  That case holds that a declaration not complying with CCP 98, can't be admitted into evidence at trial.

You make a good point that Target v. Rocha finally acknowledges that CCP 98 actually means what it says and that should be enough.   However, I think that other arguments, such as the CCP 1989 argument, are still useful, for the following reason: Target v. Rocha is a decision by a low-level court that is not binding on courts outside of Santa Clara County.   Courts outside of Santa Clara county still need to be persuaded that they ought to rule in the same way as did the Target v. Rocha court.  In that regard, I find the interaction of CCP 1989 (court has no subpoena power over over persons not residing in California) and CCP 98 (declarant must be available for process) to be persuasive.

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motion calendar date is usually 2 months down the road, any advice on how to counting the dates....

 

Million thanks

 

The statutes under discussion, CCP sections 96, 98, 1987 and 1989 are not the direct basis for motions in the sense that I think you are indicating, so strictly speaking, the court's overcrowded motion calendar is not an obstacle to using these procedures.  The motion calendar becomes a potential issue, at the point when you want to find some way to say to the court, essentially "because debt collector failed to properly comply with section 96 and 98 you should preclude their evidence at trial".  

 

For this purpose you sometimes hear people talk about a motion in limine (MIL), and different judges have different requirements for when you file an MIL before trial.  Usually rather than a separate motion hearing date, court's will rule on MILs on the morning of trial.  However, it technically is not an MIL unless you have a jury trial.  So, then people refer to it as a "motion to preclude evidence" but I think [though not sure] that is basically a made-up name, because no other motion name quite applies [maybe someone will correct me on this?].  For MILs, typically you do not reserve a motion hearing date, you simply submit it far enough in advance of the trial date.  You could probably call the courtroom clerk and ask "how many days before trial must I file a motion in limine for this judge?"

 

But, since you are not actually doing an MIL (because you probably don't have a jury trial), I think you are probably safe simply submitting papers to court a few days before trial, and caption the papers as a "trial brief" in which you present the reasons why the debt collector has no admissible evidence in light of the CCP 96/98/1987/1989 issues and whatever other issues.  Then you also have to raise these objections verbally at trial.  I'm curious what anybody else out there has to say about the issue of how to get these evidentiary issues before the court on paper before the trial.  The most cautious route might be to follow that particular judge's procudures for MILs even though, as previously mentioned, this would not really be an MIL

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You make a good point that Target v. Rocha finally acknowledges that CCP 98 actually means what it says and that should be enough.   However, I think that other arguments, such as the CCP 1989 argument, are still useful, for the following reason: Target v. Rocha is a decision by a low-level court that is not binding on courts outside of Santa Clara County.   Courts outside of Santa Clara county still need to be persuaded that they ought to rule in the same way as did the Target v. Rocha court.  In that regard, I find the interaction of CCP 1989 (court has no subpoena power over over persons not residing in California) and CCP 98 (declarant must be available for process) to be persuasive.

 

 

It can't hurt.  But I think Target is very persuasive in that it  adopts and discusses all of the arguments we used to make before it was decided.  As Target Bank says, the point about the subpoena power is even stronger with respect to CCP 98.  While the subpoena power normally can compel a witness residing anywhere in the state to attend trial, the legislature has declared that a CCP 98 witness must be available for service within 150 miles of the Court to make it less expensive for the opposing party.

 

But I think the greatest value of the Target Bank case is that it exposes a practice of the debt collection industry to feign compliance with the rule to trick unrepresented parties.  Most judges find that just a bit unfair.

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@CollectionDefenseGuy:

 

That’s very informative, presenting it as a “trial-brief”, instead of Motion in Limine.

 

Does this approach works prior to motion for summary judgment hearing date?

 

Here is a situation I am encountering:

 

JDB’s first set of discovery, revealed in their own writing, that they did not have copy of application from OC, no contract from OC and nothing signed between JDB and me.

 

I filed an MSJ based on this, Motion date set January, 2014.

 

Now, they say they just obtain: (just this week)

- a copy of credit application ( did not send it to me)

-and half page print-out mastercard acceptance, ( with my name but no alleged account# on it- they sent this one to me)

-and old credit card statement for 13 months, but no activity on it as it was already defaulted/closed-they sent this one to me)

 

Furthermore, they sent in a supplemental discovery response saying now that they obtained a copy of credit application from OC, trying to supercede the set 1 Discovery response & making an attempt to kill my MSJ.

 

I understand the MSJ will go down to toilet on the basis that is there is any trial-able issue.

 

Separately, I have a letter saying from the same OC, that there was another credit card account was closed due to inactivity and no $ was owe.

 

Can I present it to counter-fight the point that half page mastercard acceptance that has no account# on it, and listed on Undisputed statement of material fact(s)

 

Also, if I send meet & confer letter and if they don’t provides that new copy of application to me, can I use your “trial brief” approach to make my MSJ instead of going down to toilet?

 

(again, the motion calendar dept replied me they don’t have any available date before by MSJ, so that I can’t motion)

 

Or,…my MSJ is dead-on-arrival now, and I need to meet & confer/ motion to exclude/ then CCP 96, 98, 1987, 1989 prior trial,…back to conventional path?

 

Million thanks

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The statutes under discussion, CCP sections 96, 98, 1987 and 1989 are not the direct basis for motions in the sense that I think you are indicating, so strictly speaking, the court's overcrowded motion calendar is not an obstacle to using these procedures.  The motion calendar becomes a potential issue, at the point when you want to find some way to say to the court, essentially "because debt collector failed to properly comply with section 96 and 98 you should preclude their evidence at trial".  

 

For this purpose you sometimes hear people talk about a motion in limine (MIL), and different judges have different requirements for when you file an MIL before trial.  Usually rather than a separate motion hearing date, court's will rule on MILs on the morning of trial.  However, it technically is not an MIL unless you have a jury trial.  So, then people refer to it as a "motion to preclude evidence" but I think [though not sure] that is basically a made-up name, because no other motion name quite applies [maybe someone will correct me on this?].  For MILs, typically you do not reserve a motion hearing date, you simply submit it far enough in advance of the trial date.  You could probably call the courtroom clerk and ask "how many days before trial must I file a motion in limine for this judge?"

 

But, since you are not actually doing an MIL (because you probably don't have a jury trial), I think you are probably safe simply submitting papers to court a few days before trial, and caption the papers as a "trial brief" in which you present the reasons why the debt collector has no admissible evidence in light of the CCP 96/98/1987/1989 issues and whatever other issues.  Then you also have to raise these objections verbally at trial.  I'm curious what anybody else out there has to say about the issue of how to get these evidentiary issues before the court on paper before the trial.  The most cautious route might be to follow that particular judge's procudures for MILs even though, as previously mentioned, this would not really be an MIL

I think the best practice is to submit the objection as an MIL several days before trial.  If a Judge finds that procedure improper, you can reassert the objection orally in court.  More than anything, however, you want to let the plaintiff know that you are aware of the Target Bank case so plaintiff knows that its declaration will not be admitted into evidence at trial.  That will often get you a dismissal on the eve of trial.

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@Calawyer:

 

Is it possible I can have the case law of Target Vs. Rocha and it's citation, would love to save it and most likely very useful to me later.

 

Million thanks

 

 

Here you go:  http://www.creditinfocenter.com/community/topic/320406-finally-a-great-california-opinion-on-ccp-98/?hl=finally

Official cite in post #27.

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@ Calawyer:

 

Glad to see you are online now, I have another question , would you please go to my another posting:

http://www.creditinfocenter.com/community/topic/321839-is-there-a-effective-way-to-pull-case-law-i-feel-like-finding-a-pin-in-the-ocean/page-4

 

see page 4 and page5: Reply#79-80-81...

 

Million thanks

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@CollectionDefenseGuy:

 

That’s very informative, presenting it as a “trial-brief”, instead of Motion in Limine.

 

Does this approach works prior to motion for summary judgment hearing date?

 

Here is a situation I am encountering:

 

JDB’s first set of discovery, revealed in their own writing, that they did not have copy of application from OC, no contract from OC and nothing signed between JDB and me.

 

I filed an MSJ based on this, Motion date set January, 2014.

 

Now, they say they just obtain: (just this week)

- a copy of credit application ( did not send it to me)

-and half page print-out mastercard acceptance, ( with my name but no alleged account# on it- they sent this one to me)

-and old credit card statement for 13 months, but no activity on it as it was already defaulted/closed-they sent this one to me)

 

Furthermore, they sent in a supplemental discovery response saying now that they obtained a copy of credit application from OC, trying to supercede the set 1 Discovery response & making an attempt to kill my MSJ.

 

I understand the MSJ will go down to toilet on the basis that is there is any trial-able issue.

 

Separately, I have a letter saying from the same OC, that there was another credit card account was closed due to inactivity and no $ was owe.

 

Can I present it to counter-fight the point that half page mastercard acceptance that has no account# on it, and listed on Undisputed statement of material fact(s)

 

Also, if I send meet & confer letter and if they don’t provides that new copy of application to me, can I use your “trial brief” approach to make my MSJ instead of going down to toilet?

 

(again, the motion calendar dept replied me they don’t have any available date before by MSJ, so that I can’t motion)

 

Or,…my MSJ is dead-on-arrival now, and I need to meet & confer/ motion to exclude/ then CCP 96, 98, 1987, 1989 prior trial,…back to conventional path?

 

Million thanks

 

 

Do you have a copy of plaintiff's opposition?  How are they authenticating the credit application?

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No, they did not replied the yet!

 

They sent me a 2nd Discovery Request for admission which includes the half page of mastercard acceptance w/ my name but no account#.

 

They sent separately, a Supplemental Discovery response ( Documents to be produced) but amend all 35 answers as "they now obtained a copy of credit application from OC. But they did not sent it to me.

 

Thanks

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@ calawyer:

 

Sorry I forgot to anwser your 2nd half of the question: "How are they authenticating the credit application?"

 

1. I am not sure what is "authenticating"? the #3#4 below are just copies, no certification/ notarized

2. As for the credit application- they claimed they obtained, but DID not send it to me.

3. a half page of Bill of sale/ assignment (does not reference to my name nor account# - they sent that to me.

4. a half page of mastercard acceptance ( has my name but no account) sent to me.

 

Million thanks

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If they want to use the credit application in their opposition to your MSJ, they will have to authenticate it.  That means someone will have to say something like "Exhibit A is a true copy of an application for credit that browniebrownie signed on _____>"  I was wondering how they did this but I guess you don't know because you don't yet have the opposition brief.

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@ calawyer:

 

That's right !

 

I am drafting a meet & confer letter, asking them for the copy of application and requires them to authenticate all evidence they have .

 

And if they either could not provide the copy or they say the half page of mastercard acceptance is the one, but they refuse to authenticate, what should I do ?

 

Eearlier I tried motion to exclude evidence ( after they bs my demand for bill of particular) but my proocedure was wrong, even the judge told me if I want to, it will be a diffeent motion,My MSJ hearing is early January, 2014.

 

The calender department told me next available date is after MSJ.

 

Million thanks

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I don't think you need to send a meet and confer letter just yet.  As I understand it, plaintiff has not yet filed an opposition to your MSJ.  There is no requirement that a plaintiff authenticate documents it delivers to you in response to discovery.  But when they file a brief in Court, especially an opposition to a summary judgment motion, plaintiff will need to authenticate any evidence it submits.  This means it will have to offer a declaration of someone with knowledge that can say this is browniebrownie's application for the account at issue in this case.

 

Not sure how they can do that except with a declaration from an appropriate witness that works for the original creditor.  But we will have to wait for the opposition brief to see.

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