Jump to content

"Evidence" sent; listed on the response to my CCP96 and in same packet as their CCP98


Recommended Posts

The plaintiff sent a response to the CCP96 listing their evidence right along with their CCP98. Does the fact that they listed those items and sent them with the CCP98 mean we're sunk?

They also list the same witness on the CCP96 as the CCP98 declarant. Additionally, on the CCP96 they listed 'another witness in the event the proffered one doesn't make it', of course I'm paraphrasing. Can they do this and secure their right to call anybody else?

My plan was to subpoena the 98 witness, but now I'm uncertain as to how helpful that will actually be because they list it on the 96!

Please help! Need to subpoena in a few days...

Link to comment
Share on other sites

The plaintiff sent a response to the CCP96 listing their evidence right along with their CCP98. Does the fact that they listed those items and sent them with the CCP98 mean we're sunk?

 

****no it does not. It means that is what they intend to use against you at trial (and they can't produce anything else), and  that it is what you must attack and object to.  You can file MIL's against it (I know you have spent time on the rules of evidence and authentication). It does not matter to you that they combined the CCP 98 with their CCP 96 response.****

They also list the same witness on the CCP96 as the CCP98 declarant.

***Not a big deal, means nothing to you.****

 

Additionally, on the CCP96 they listed 'another witness in the event the proffered one doesn't make it', of course I'm paraphrasing. Can they do this and secure their right to call anybody else?

 

****If they gave you the name of the witnesses then they can call as many as they have listed. They cannot reserve the right to call a "witness with firsthand knowledge" or by any other description; they must list them by name (unless you do not object).****

My plan was to subpoena the 98 witness, but now I'm uncertain as to how helpful that will actually be because they list it on the 96!

 

****Don't fall for that. Your plan was correct. Subpoena the  CCP 98 declarant. As far as how helpful it will be; I would guess it is critical.****

Need to subpoena in a few days...

****Yes you most certainly do.*****

Link to comment
Share on other sites

Ditto what Anon Amos wrote. The JDB is pretty much following the predictable JDB pattern with what you posted. You're doing just fine.

 

Once you get within 20 days of trial, definately subpoena that declarant.

 

"Another witness in the event the proffered one doesn't make it" does not follow CCP96.

 

You want to have a Trial Brief, MIL and Declaration in Support of MIL. Check your local rules for when those need to be filed.

  • Like 1
Link to comment
Share on other sites

Okay, so is subpoenaing the witness (assuming he didn't fly out for a 20 day business trip sleeping on the attorney's couch in the office) and then filing my MIL objection enough to the evidence listed on the 96?

Also, for information possibly unneeded, here is how they mention another possible witness:

"Plaintiff reserves the right to substitute another witness so designated as a custodian of records and/or person most knowledgeable at time of trial."

Knowing this, must I file a separate objection to their attempt to reserve their 'right' to call any warm body as a witness?

I have my blank subpoena ready to be issued, and will be taking it tomorrow to do just that. I will also stick to my original plan of subpoenaing. I'm just not clear on the objecting to an unnamed person if the other person doesn't show. I'd prefer to cut them off at the pass and prevent any backdoor sneakiness.

Link to comment
Share on other sites

I would include the objection in my MIL regarding the "un-named" witness, they mention. This will allow the court to rule prior to the start of the trial. They are allowed to call a un-named witness for impeachment purposes, although how they worded it in their CCP 96 response doesn't sound like an impeachment witness.

  • Like 1
Link to comment
Share on other sites

Your subpoena - CA has a downloadable one (SUBP-001) but my court clerk told me if I had used it as is, it would have been invalid. My court supplied me the exact same form, but it came with a stamp and signature of the authorized person for issuing them.

Link to comment
Share on other sites

My court tried that on me, except it's the same exact form. Only difference was that they couldn't charge me $0.50/sheet if I brought my own. So I refuse to use theirs, if only on principle. You MUST take it in BLANK. They then "issue" it by stamping and signing it. You must have them issue it or it would be invalid.

I think because it's a standard judicial form, they cannot prevent you from supplying your own, but I don't know where you are in Cali.

Link to comment
Share on other sites

 They are allowed to call a un-named witness for impeachment purposes, although how they worded it in their CCP 96 response doesn't sound like an impeachment witness.

I believe in this situation an impeachment witness would be a witness that the defendant would have called to the stand. The plaintiff can call them to attempt to impeach their testimony, and would not need to list them, as they are now an impeachment witness. Of course they could just cross examine them anyway, and it works both ways (for the defendant as well).

Link to comment
Share on other sites

So, break it down layman style for me @Anon Amos...is the unnamed witness allowed at all?

Also, the 96 lacks any type of addresses for either witness. Per the code, the following is required:

"A statement of the names and addresses of witnesses (OTHER THAN A PARTY WHO IS AN INDIVIDUAL) you intend to call at trial."

As previously mentioned, they have named one witness. This person is listed as a "custodian of records" for the company who sold the account to the plaintiff in their 98 declaration. He's an employee of the OC, so is he considered an individual? On the witness' LinkedIn profile it says he's a "Legal Representative" for the OC. Not sure how that translates into the CoR but anyway.

Link to comment
Share on other sites

Unnamed witnesses do not follow the code and are not allowed so long as you object.. So "person most knowledgable" or whatever phrase they use, does not give them an end-around on your CCP96 request. They can try to call them at trial, but you object & point out the code, and the judge should not allow it.

 

The exception is, as you write above, is "other than a party who is an individual" - those are the only unnamed witnesses that are allowed...a "party who is an individual" is the owner of the JDB/OC, or CEO or someone on that kind of level > someone who derives direct benefit from the claim. Employees, custodians of record, legal specialists, etc are not a "party who is an individual". You think the owner is gonna show up? I don't think I'd freak out if the owner of a JDB/OC showed up anyway - what first-hand knowledge would they have about your account? or the way the record was made? how it was kept? etc.... Such a person would have a tough time fighting your argument that plaintiff's documents are hearsay.

 

The CCP96 response may lack an address of the named declarant, but does the CCP98 declaration supply that person's address? I think that's how they get the address in.

Link to comment
Share on other sites

Yes, his address is in Minnesota. The address where he can be served prior to trial is the attorney's office, actually in care of, contrary to target v rocha.

But, I am fairly certain they cannot respond to a CCP96's required elements in the declaration of a CCP98 and not have the former deficient. Thoughts?

Link to comment
Share on other sites

I hear ya.

 

I asked the same question here regarding plaintiff's exhibits in my case, which were attached to the CCP 98 but not attached again to the CCP96 response, and i was told they get these things in via the CCP98 (which was filed at the courthouse). I wouldn't say i was satisfied with that, but i chose not to linger on it and instead focused on my brief and the mil to exclude the CCP98 in it's entirety.

Link to comment
Share on other sites

@HotWheels96

 

Ryan covered the questions you asked me in pot# 11 very well, but I will chime in a bit on what you were talking about after that.

 

The CCP 98 Is a declaration of someone, and it is his testimony that he would give If he were at trial. So in his testimony if he references the bottom feeder purchasing the debt and mentions the bill of sale; he will show the BOS as an exhibit, and on and on for everything he talks about and exhibits in his declaration.

 

If you get the CCP 98 stricken, you just kill the words in his declaration, his testimony. The evidence (the exhibits) can still be brought to trial, by it's inclusion in their CCP 96 witness & exhibits list, and the declarant of the ccp 98 would be allowed to attempt to lay a foundation for the evidence (if the plaintiff chose to fly him in as a witness).

 

They don't have to give you the address of anyone on the ccp 96, and it does not matter how far away or what state they are from, because you have no reason to need to subpoena them because they are already (supposedly) going to be at trial. No matter how they label the witness; they need to give you a name for each one (unless you do not object)

 

On the ccp 98; the declarant must give an address that is 150 miles from your court, because you will want to subpoena him (as they are trying to submit his testimony in lieu of live appearance) and he has to be a citizen of CA and within the mile limit so that you can subpoena him and so the court will actually have jurisdiction over him.

 

Not sure if that helps or if it is exactly what you were getting at.

Link to comment
Share on other sites

@RyanEX

They did list the evidence on the CCP96, so I suppose that's sort of moot eh?

@Anon Amos

According to the code, they are required to give the name and address of the witness on the CCP96. I typed it straight from my CCP book. I suppose that's why I thought it should be required. I'm not incredibly worried they will fly him out, but stranger things have happened and I am making considerations in the event they do.

So, if I understand it, as long as I subpoena him (and he is not a resident of this state and the declaration gives the attorney address to serve at, you know, the whole in care of bit) then I can get rid of the evidence on that part if he doesn't appear. But I still am left with the evidence listed on the 96. So, they would have to bring him in to testify to prevent a hearsay objection. Either way, he has to be there because I will object. Am I close?

Thanks everybody!

  • Like 1
Link to comment
Share on other sites

Yes hw, CCP96 does say the name & address needs to be listed in the CCP96 response, but I have yet to see a thread where a defendant argued on that technicality.

 

The evidence they listed on the CCP96 needs foundation/authentication, otherwise it is hearsay. They "try" to use the CCP98 declaration to authenticate it... so, if you knock out the CCP98 declaration and the declarant, you knock out their "authentication". Now all their "evidence" stands without foundation/authentication >> you get it thrown out as hearsay. Even if you failed to knock out the CCP98 declaration, or the witness actually shows up, there are still ways to attack the evidence (first hand knowledge, etc.).

 

The main focus is to nullify that CCP98 declaration, I'd say that would be the primary goal of your MIL and Declaration in Support of MIL. You can target the documents too, include an attack on everything in your MIL. If you are successful, now the only person they have to authenticate their documents is you, and, of course, you aren't going to help them one bit.

Link to comment
Share on other sites

Yes hw, CCP96 does say the name & address needs to be listed in the CCP96 response, but I have yet to see a thread where a defendant argued on that technicality.

 

Yah that is correct now that you mention it. But we don't need the address and the judge won't care, so no one ever does anything with this. You have really been knocking them out of the park with your  post RyanX

  • Like 1
Link to comment
Share on other sites

Yah that is correct now that you mention it. But we don't need the address and the judge won't care, so no one ever does anything with this. You have really been knocking them out of the park with your  post RyanX

I think all the lessons learned in here are finally taking root :)  Almost done with my first one ;) and eager to help others:)

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.