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Given with my situation now, how do I exclude evidence, with some concern!


browniebrownie141
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But I still have some questions, perhaps confirmations...Please...Ladies ? Gentlemen.....Anon Amos, Calawyer, HELPERS....

 

(p.s. I am half way from finished reading homelessinca 's posting....and I just finished reading the below CCP98 can we object posting:

 

http://www.creditinfocenter.com/community/topic/295820-ccp-98-declaration-can-we-object/

 

1. the DEPO rules 2025.010-2025.620 covers a lot of things, surpriseingly, many of those are somewhat common sense. but it does not covers what questions can be asked or can't. If anyone can share with me, the kind of questions for example, if they asked me about my job income/ bank accounts...I can "Objection" right? Or can't I?

Yes you can object to questions just like you would in discovery or at trial. You may also be able to use some of these to your advantage by saying you are broke, not working, can't afford payments, will file bankruptcy if  you lose etc.

 

Anything that's NOT related to the lawsuit, I can object for sure, correct?

correct, you do not have to give up any of your rights

2. During Depo, when something unsure, I can always say I don't recall at the moment OR DENY, refering back to my General deniel + affirmative defenses, correct?

correct

Separate Topic:

3. about CCP 96, 98 and 1987...these I have questions: about EXECUTION

4. it's about counting the dates, My trial date is November 12, 2014. So, take "no more than 45 days/ & no less than 30 days before trial, can anyone CONFIRM for me, ( ****takes 5 days including mailing) ....

earliest date for me to send CCP96 to JDB will be September 29 & dealine October 13 ?( but ? if includes 5 days of mailing then I have to push earlier? ie, October 3 or Octobe 6th huh.gif) I am somewhat confused ? So it is safe to say I should do earliest?

Yes, after looking at the calendar I came up with the same dates. Don't worry about the 5 days here, the way that applies is; you have to add 5 days to their response. So you don't get their response mailed to you in 20 days, instead add 5, so it's 25 days until you recieve their response. Send it between Sept 29 and Oct 13 for the safest method.

5. Is that CCP 96, 98 , 1987 and Subpenoa no need to file with the Court ?? Really ?? or only 96 not necessary huh.gif? What about Subpeonoa?

ccp 96 not filed with court. CCP 98 not filed at all, it is theirs that you object to, CCP 1987 would be something that they MAY send to you (and will and can only be addressed at that time), you do file the subpoena to the declarant of the ccp 98 with the court. You take the subpoena to the clerk and let them handle that part of it, and get it stamped by the clerk, then you serve it to the lawyer. 

6. JDB (to response my CCP96) are required within 20 days + 5 days mailing, right ?

correct

In situation when JDB:

7. --provide evidence + witness ( provided address within 150 miles of Court + 20 days available ), I then file for/ serve CCP 98 ? Or I use Subpenoa , or is that BOTH?

You are mixing the two up here. When they send you the ccp 96 response, you do not have to send a subpoena because they are telling you this person is already going to be at the trial. The witness does not need to be 150 miles from you, they will probably be out of state, and that is OK and legal. You don't send ccp 98 or subpoena, so the answer is neither.

8. --If JDB trying to use written Statements instead of having witness coming to trial, HOW DO I handle it? Is it by serving CCP 98 and serving Subpenoa BOTH ? ( is it another reason why I should send to CCP 96 earliest to ensure I have enough time to do MIL?

The written statement they try to use IS the ccp 98. You handle it by objecting to it and then subpoena the declarant

9. --How do I request the Sherriff to ensure the subpenoa must be served to the witness AND NOT dropped off?

Asked and answered several times now. You  would simply tell them. Also as I stated earlier LET THEM DROP IT OFF after a few attempts. If you don't do that the judge might say you should have just dropped it off, and it can hurt you. Regardless of what the rule says.

10. --How do I requesting the Sherriff make notes if witness is not available at the specific address ? How many attempts are required by Law that I need to serve to the specific address ?

Again, you ask the to write a declaration for you saying what happened. Have hem try to serve it 2 times and then DROP IT OFF.

11.--If mutilple times, does that mean I have to fill out papers works at sherriff dept multiple serving request??

 

NO, you will fill out 1 form and pay 1 time, probably $80

12.--Due to the fact the the dates above will be running so close to trial-November 12, 2014. When the MIL motion should be taking place?huh.gif, ie, HELP ME to count the DATES on this one, I am LOST here.

Here is why: Say I file/serve earliest September 29, that means their 20 days dealine to response October 20 right? plus another 5 days of mail, so I won't get it until October 25 ( because of the mail) correct?

So between November 12 and October 25, 2013, a few things must be happened:

13--. Subpeona sent to JDB ( Can anyone tell me how to it and what requirement and how many days notice??? Do I have enough time between October 25 and November 12 trial date??)

14--. When the MIL motion hearing date should be ?? Because I will need to scheddule the date trial.

( given they me trying to use the written statement instead of witness to trial, plus sheriff back & forth takes DATES, correct?)

 

A lot of this is asked an answered and repetitive. But yes, it gets down to crunch time, when everything have to be done together and on time. You won';t learn all this with a simple answer to a post, you have to study and read over and over, that's what I mean by "time to prepare for trial"

15.-- How do I file the MIL motion ?

Same way you filed other motions except you don't give them a notice date of when the motion will be heard, because the judge will deal with it at trial.

16. --Anyone can share with me, the guideline of writing the trial brief, what are the requirement/ must have in there?

 

Look at the California rule of court, there is a lot information on this in there somewhere. Also Qbert, ASTMedic, and HomelessInCalifornia have examples in here somewhere.

 

 

 

I am trying to get a thorough understanding and correct steps and EXECUTION timetable....

You most certainly are

Please, I hope you all understand and give me a helping hand on these...I DON"T WANT TO MESS UP THE DATES EITHER TOO EARLY OR MOST LIKELY DOES NOT HAVE TIME....

EVERYONE here understands, but we don't know your local rules on a lot of this, and you need to look those up regarding MIL's and trial Brief etc. Also, it is going to take time to learn and understand this stuff. You have to go over these post and study the rules etc. Your NEXT step is to be ready for the depo, and this ccp 98 and ccp 96 stuff is going to come up later, and you can continue to study this stuff in the mean time.

mega Milion thanks

 

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@ Anon Amos:

 

Yes Sir, I am trying to get myself prepared although the trial is far away. I know there are a lots of things to do, so I would like to get prepared instead of rushing to do everything in such a short time, it is easier to hammer the iron when it's still hot.

 

Hopefully will be easier for me,...You have a good weekend Sir !

I know you are, and you are working hard at it. Some of this stuff is easy for us to walk you thru it when it happens. And you also want to study your reply to their opposition to your MSJ, and learn about the rules of evidence cited for attacking their evidence. Know and understand your arguments and case law. Be able to argue and understand all of this stuff in the reply and the stuff you were working on in the amended MSJ that you did not use. All of this ties into the trial brief and winning your case.

 

You have a good weekend too. I don't want to seem like I am coming down on you for anything, but I don't want to see you get too hung up on procedure issues for down the road, and not be able to argue your case as well.

 

The only time it will really be easier for you (and others) is IF you happen to catch another lawsuit (hopefully you won't). The first time around will always be confusing and a big learning curve.

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@Anon Amos:

 

Yes, you are correct. I need to finish the "reading of homelessinca" and getting DEPO-Oral part prepared as well.

 

One of the thing I got so worried about the "timing" of filing the MIL is that how much time do I have to do all these in such a such time ( as I am debt 101 student here)...Your answers actually gave me a better understading and a big "jump-start"....

 

I am also thinking about, I may need to spend some$ on you  & calawyer or anyone on to help me going thru that part as well, as you all can understand, these are important part in trial, same as what 's going on in trial.

 

I rather spend $$  on you guys instead of letting JDB eat my heart out. Besides, I totally believe you guys should be getting recognized.

 

have a great weekend !

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You have to FILE all these things at about the same time. You don't have to do ALL the work at that same time. You are already doing most of it as you go. You have their evidence, and in your reply to their opposition you had many reasons why each piece of evidence should be stricken. For the most part those ARE your MIL's, you just have to add the caption etc.

 

That combined with parts of your amended MSJ (that was not filed) along with the jury instructions (and accompanying case law) is basically what you need for your trial brief.

 

You supplied the courage, determination and fight; so you have what you need. With further study and understanding of what you have, you can beat them.

 

Force them to dismiss or win your case and that will be payment enough for any help you received.

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  • 2 weeks later...

Gentlemen/ ladies:

 

Can anyone explain to me...in a easier way so that I can truly understand WHAT AND HOW the DECLARATION is done??

 

I found the BELOW from the local court rules section of Chatsworth, California, courthouse, ....

 

 

3.57 MOTIONS IN LIMINE
(a) Required Declaration. Motions made for the purpose of precluding the mention or
display of inadmissible and prejudicial matter in the presence of the jury must be accompanied by
a declaration that includes the following:

(1) Specific identification of the matter alleged to be inadmissible and prejudicial;

(2) A representation to the court that the subject of the motion has been discussed
with opposing counsel, and that opposing counsel has either indicated that such matter will be
mentioned or displayed in the presence of the jury before it is admitted in evidence or that counsel
has refused to stipulate that such matter will not be mentioned or displayed in the presence of the
jury unless and until it is admitted in evidence;

(3) A statement of the specific prejudice that will be suffered by the moving party if
the motion is not granted; and

(4) If the motion seeks to make binding an answer given in response to discovery,
the declaration must set forth the question and the answer and state why the use of the answer for
impeachment will not adequately protect the moving party against prejudice in the event that
evidence inconsistent with the answer is offered.

(B) Summary Adjudication Improper. A motion in limine may not be used for the purpose
of seeking summary judgment or the summary adjudication of an issue or issues. Those motions
may only be made in compliance with Code of Civil Procedure section 437c and applicable court
rules.

© Bifurcation of Issues Improper. A motion in limine may not be used for the purpose of
seeking an order to try an issue before the trial of another issue or issues. That motion may only be
made in compliance with Code of Civil Procedure section 598.SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
Page 56 of 217
LOCAL RULES - Effective January 1, 2014
(d) Timing of Ruling. The court may defer ruling upon a motion in limine, and may order
that no mention or display of the matter that is the subject of the motion be made in the presence of
the jury unless and until the court orders otherwise. If the court so orders, or if the motion is
granted, it is the duty of counsel to instruct associates, clients, witnesses, and other persons under
their control that no mention or display be made in the presence of the jury of the matter that is the
subject of the motion.
(Rule 3.57 new and effective July 1, 2011)

 

Million thanks....

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Gentlemen/ ladies:

 

Can anyone explain to me...in a easier way so that I can truly understand WHAT AND HOW the DECLARATION is done??

This is not the CCP 98 declaration and has nothing to do with that (just in case you are not sure)

 

I found the BELOW from the local court rules section of Chatsworth, California, courthouse, ....

 

 

3.57 MOTIONS IN LIMINE

(a) Required Declaration. Motions made for the purpose of precluding the mention or

display of inadmissible and prejudicial matter in the presence of the jury must be accompanied by

a declaration that includes the following:

When you file your MIL's to preclude evidence from being introduced at trial you must also include with your motion a declaration, like you did with other motions you filed, only this time you must also include the specific information listed below

 

(1) Specific identification of the matter alleged to be inadmissible and prejudicial;

the alleged cc statements, the affidavit, the application / contract, the bill of sales, the loan schedule. Everything listed in your reply to their opposition to your MSJ.

 

(2) A representation to the court that the subject of the motion has been discussed

with opposing counsel, and that opposing counsel has either indicated that such matter will be

mentioned or displayed in the presence of the jury before it is admitted in evidence or that counsel

has refused to stipulate that such matter will not be mentioned or displayed in the presence of the

jury unless and until it is admitted in evidence;

This probably will not apply to you much as you have no jury. It is saying that you talked to the lawyer and he has stated that he will discuss items in your MIL with the jury before he actually attempts to introduce the evidence,

(3) A statement of the specific prejudice that will be suffered by the moving party if

the motion is not granted; and

A statement from you to the judge explaining how you will be damaged unjustly if the judge does not rule in your favor on your MIL's

(4) If the motion seeks to make binding an answer given in response to discovery,

the declaration must set forth the question and the answer and state why the use of the answer for

impeachment will not adequately protect the moving party against prejudice in the event that

evidence inconsistent with the answer is offered.

 

This does not apply to you. This would pertain to a motion to compel discovery, if you happened to file one.

( B) Summary Adjudication Improper. A motion in limine may not be used for the purpose

of seeking summary judgment or the summary adjudication of an issue or issues. Those motions

may only be made in compliance with Code of Civil Procedure section 437c and applicable court

rules.

© Bifurcation of Issues Improper. A motion in limine may not be used for the purpose of

seeking an order to try an issue before the trial of another issue or issues. That motion may only be

made in compliance with Code of Civil Procedure section 598.SUPERIOR COURT OF CALIFORNIA

This does not apply to you. Mainly it's saying you can't use MIL's at a summary judgment. You are past that point and still marching on. 

COUNTY OF LOS ANGELES

Page 56 of 217

LOCAL RULES - Effective January 1, 2014

(d) Timing of Ruling. The court may defer ruling upon a motion in limine, and may order

that no mention or display of the matter that is the subject of the motion be made in the presence of

the jury unless and until the court orders otherwise. If the court so orders, or if the motion is

granted, it is the duty of counsel to instruct associates, clients, witnesses, and other persons under

their control that no mention or display be made in the presence of the jury of the matter that is the

subject of the motion.

(Rule 3.57 new and effective July 1, 2011)

The judge may read and decide hoe to rule on your MIL's before the jury hears about any of it. It does not apply to you in the sense that you have no jury. Yu want to file your MIL's so that the judge will rule on them before a trial begins, because if you win the MIL's there won't be a reason for a trial. Unless the lawyer puts you on the stand and attempts to get you to admit to the evidence and to lay a foundation and authenticate the evidence for them. 

 

Million thanks....

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  • 2 weeks later...

Gentlemen/ Ladies:

 

I drafted a letter responding to the plaintiff's request for Oral Depostion ( we did written discovery, I filed MSJ vs. them, motion denied and now they want a oral depo)

 

I would like to send this to the Court for case file ( will be in pleading paper), to protect my right. So, seeking suggestions and advice here.

 

Earlier, plaintiff attorney asked me for the available date(s) and I replied and demanded language interpreter. They acknowledged and accepted that.

 

Here it is:

 

The Defendant replied to Plaintiff’s request for oral deposition and hereby would like to receive confirmation and additional information from plaintiff’s attorney.

 

A chinese language interpretor (Cantonese-chinese) was requested by defendant for the above mentioned oral deposition, and plaintiff’s attorney acknowledged and accepted. ( see exhibit A- meet & confer letter /e-mail exchanges between plaintiff’s attorney and defendant )

 

The fee for chinese interpretor will be paid by plaintiff’s attorney and plaintiff as the oral deposition is demanded by the plaintiff’s side.

 

Besides the copy of the oral deposition transcript is required by defendant, a 2nd copy of the oral deposition transcript is required and is to be translated into Chinese-cantonese language and writing will be in complicated form, ie, Taiwan / hong kong writing version.

 

The defendant exercise his right (according to CCP 2025.510-2025.570 and 2025.610-2025.620 ) that:

 

The copy of the oral deposition transcript is to be mailed to defendant for review.

 

The defendant reserve his right to make clarification(s), changes, and/ or correction(s) to the above oral deposition should it is necessary.

 

The defendant would like to seek additional information (see below) from the plaintiff’s attorney regarding the address for the above oral deposition.

 

1325 Spruce Street, suite 310, Riverside, Ca 92507 ( Riverside County, East of Los Angeles county)

 

Please provide the name of the premise(s)/ facility, the contact person’s name at that address and the contact telephone number.

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Gentlemen/ Ladies

 

Please kindly,...take a look at my #233 posting,...ok to go or no-go....any suggestion please...

 

Oral Depo will be at February 26, .....if the above letter is a GO approved by you all, will first send to case file, 2nd copy to be filed stamp before sending to plaintiff's attorney,...some turn around time,...that's why I do this earlier,...hope you all don't mind...

 

Thanks

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  • 4 weeks later...

Yes, the DEPO was cancelled by the JDB at the last minute.

 

And specially thanks to Anon Amos and Calawyer, great suggestion-- asked for a translator and required the transcript ( to be issued after DEPO also to be translated ) and also, I reserved my right to make changes/ further explanation &/ or correction after the DEPO in writing after reviewing the transcript.....

 

Not only I requested in meet & confer letter & pushed them to respond, but I also case filed with the court. Since they were the one who asked for the DEPO ( after the written doscovery), they would be the one responsible for the fee -translator and translation fee for DEPO transcript.

 

The JDB's attorney locates in Northern California, told me to go like 65 miles away from my home ( I am in Los Angeles area) to a 3rd party location for DEPO.

 

Anon Amos & Calawyer were preciously correct, JDB 's attorney trying to pressure me, yet we figureed it out all these, would increase how much $ they are going to spend on my case,....3rd party location, someone who would do the DEPO Vs. me, then translator ( paid by the hour) then translation fee for the whole DEPO ....do the math...

 

Million Thanks again to Anon Amos and Calawyer !!

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Yes, the DEPO was cancelled by the JDB at the last minute.

 

And specially thanks to Anon Amos and Calawyer, great suggestion-- asked for a translator and required the transcript ( to be issued after DEPO also to be translated ) and also, I reserved my right to make changes/ further explanation &/ or correction after the DEPO in writing after reviewing the transcript.....

 

Not only I requested in meet & confer letter & pushed them to respond, but I also case filed with the court. Since they were the one who asked for the DEPO ( after the written doscovery), they would be the one responsible for the fee -translator and translation fee for DEPO transcript.

 

The JDB's attorney locates in Northern California, told me to go like 65 miles away from my home ( I am in Los Angeles area) to a 3rd party location for DEPO.

 

Anon Amos & Calawyer were preciously correct, JDB 's attorney trying to pressure me, yet we figureed it out all these, would increase how much $ they are going to spend on my case,....3rd party location, someone who would do the DEPO Vs. me, then translator ( paid by the hour) then translation fee for the whole DEPO ....do the math...

 

Million Thanks again to Anon Amos and Calawyer !!

 

 

@Anon Amos and @calawyer are both giving you excellent advice, and you are also doing very well for your self.  Yeah, I think the JDBs  were knocked back when you demanded your Chinese-Cantonese translation.

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  Yeah, I think the JDBs  were knocked back when you demanded your Chinese-Cantonese translation.

That was pretty funny. We are going to have to start asking people  what their Native language is.

 

If it does go to trial it's going to be tough on the lawyer with the translator at trial. I met a lawyer who has worked with the same translator for 20 years and they team up on opposing council with constant interruptions, request to speak slower etc. I watched them work together to annoy and rattle a lawyer, it wasn't pretty. These guys / gals are going to have their hands full with Brownie. 

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  • 1 month later...

Gentlemen/ Ladies:

 

Sorry for being away for a almost 2 months, I have been very busy with tax filing and also helping with a family member regarding Obama Care health insurance,...almost done....as soon as I finish with my tax filing, will jump right back to this forum here,...

 

I also have been reading some info regarding "Rules of Evidance, admissable vs. in-admissable, hearsay...and how to get document become admissable, and I have a few questions....once again, I will jump right back ASAP....

 

Thank you Thank you Thank you all ....

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  • 3 weeks later...

Hi Dear All:

 

I am back.....allow me to ask a few questions, but one by one...as it comes...

 

First: it's about counting the days & "Technical Execution" ...for CCP 96/ 98 and to serve subpeona & motion to exclude evidence right before trial date:

 

In california, say it say no more than 45 days BEFORE Trial to send CCP 96 to plaintiff JDB. Ok, so I will do so 44 days prior trial.

 

The JDB plaintiff has 20 days ( + 5 days to send thru mail, thus = 25 days) to response my CCP 96 , ie, their CCP 98. So, that's leave me with 19 days BEFORE trial to go to court and get the Subpoenoa form stamped and handed it say Sherriff, to serve the subpeona to plaintiff's witness, right ?....

 

And assuming it takes a few more days for the Sheriff to "get back" to me regarding the subpoena, say sheriff has to drop by @ 2nd attempt  because plaintiff 's witness ARE NOT AT THE ADDRESS.

 

Now my Question: How do I solve the "running out of time" Issue to serve the Motion to exclude evidence/ limine ??

 

To serve the notice regarding a motion, in california, it is 16 days, ie, I would need to notifiy the plaintiff and give 16 days notice ahead of any motion. If it is less than 16 days, the Judge may say insufficient notice, thus, crash my motion, right !?

 

But with the most likely case I am talking above, even I get my suboena to the sheriff at 18th day prior trial, no way will I get the reply from sheriff and NOT running out of time ( 16 days notice) RIGHT ??

 

AND when should this Motion to exclude evidence be held ? 1 or 2 days before trial ( is it considered the best timing?) Or is this ON at the beginning of the Trial ?

 

Or, does this motion to exclude evidence / limine has it's rules/ execution time table ??

 

Thanks

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Not bad Brownie, you are doing your homework. I will try to tie up a few loose ends:

 

1) You do not have to use the sheriff to serve the subpoena. You can use a process server (which will be more efficient) or even a friend. Anyone that is over 18 and not a party to the case can serve it. This way it will not hold you up on drafting your MIL.

 

2) A motion in limine is not a noticed motion, that is; you do not have to give plaintiff 16 days  notice.

 

3) I think the best time for the MIL is about 5 days before trial (sending the plaintiff a copy so that they receive it 5 days before trial). I would not want to surprise them with it at trial, because you are better off giving them time to dismiss once they see your arguments in the MIL.

 

4) Yes, your local court rules will probably have information you will want to read about the timing of the MIL (they usually allow anywhere from 30 days until the day of trial or 2 days before trial to file them)

 

Remember: most of what you need for your MIL is in your opposition to their opposition to your MSJ. (from back in Dec.)

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  • 2 months later...
  • 2 weeks later...

Gentlemen & Ladies:

 

1 quick question:

 

As I am now really trying to start preparation for my trial and document(s). Say there is 1 piece of document that I want to introduce to trial as evidance Vs the JDB--( please see page1 posting #1 last photo)

 

How do I go by getting it submitted as evidance ? / how do I get it becomes authenicated ? Should I send a letter to OC in certified mail with signature return then using their reply and attached the certified mail/ signature return (all) get notarized.....????

 

Thank you in advance ....

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At 45 -30 days prior to trial you  could send them a ccp 96 witness and evidence list (just like you ask them to send you a response to the one you request from them) listing the document as an exhibit. Then at some point before trial you would file the document or introduce it at trial (depending on your rules). Or, you probably could just introduce it at trial since it is for impeachment purposes only. 

 

You won't need as much authentication as they would because you are using it for impeachment purposes and it came from them. It's not hearsay because it is not being asserted to show the truth of the matter.

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@Anon Amos:

 

Yes Sir, you taught me a lots of stuff, helped me on my amended MSJ, and I followed your instructionof reading HomeLess's posting. And I am in the process of using my amended MSJ to "re-cycle" it as trial brief....

 

Of course, if the JDB would send me a CCP 96, ...but, somehow, I am not sure if they would do so,...last time when I "introduced" that piece during Discovery, certainly "touched JDB's attorney 's nerve, haha....

 

But yes, I know I will be doing my CCP 96/ then Objection to their CCP98 + filing/serving Subpoena, then filing MIL + trial brief...and the whole 9 yards...

 

So, what are the "impeachment" route ?

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