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On pleading paper. Title: defendant's response to plaintiff’s request for witness and evidence list under ccp 96.

Witnesses and evidence will be used for impeachment purposes only. That's all you say.

I would send them the DISC 015 in a separate envelope 45 days before trial. This is your request to them, the other is your response.

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The Pleading is called Defendant's Response to Plaintiff’s Request for Witness and Evidence (CCP 96)

 

 

You will say:

 

Defendant does not intend to call any witnesses or introduce any documents except for purposes of impeachment.

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Hey Credit,

 

Prep your questions for their witness. Look at Homeless or Astmedics for their questions. Review and highlight every piece of document JDB sent you and write why it can't and shouldn't be admissible. Try to focus on their ccp96 (Declaration of their witness) and try to find holes in that document.

 

Hope this helps

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They sent me theirs last week trial and last week in march.  I sent both docs today. Am I gonna be ok on this- time wise its a little late ? Any other preps I need to do?

I think they sent you theirs early. You can send your request 45 calendar days before trial all the way until 30 days before trial, then it would be late any closer than 30 days to trial. Check your trial date and do the math, see if you are timely.

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I think they sent you theirs early. You can send your request 45 calendar days before trial all the way until 30 days before trial, then it would be late any closer than 30 days to trial. Check your trial date and do the math, see if you are timely.

thanks I will PM you on this

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You don't need to send them anything for witnesses. You really don't even have to respond to this but you can. You can send them a response with "Witnesses and evidence will be used for impeachment purposes only". That means you are going to attack their evidence they produce but you aren't bringing any of your own.

45 days before trial you send them the DISC 015 form and they will answer with the witness and evidence they will produce.

If they send you a ccp98 declaration in lieu of testimony then you subpoena the declarant.

How and what procedure do I use for that ? The say the specialist is a JR legal specialist at Midland with one of their addresses, but not the one they used to sue me with.

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How and what procedure do I use for that ? The say the specialist is a JR legal specialist at Midland with one of their addresses, but not the one they used to sue me with.

 

Read CCP 98. The person making the declaration is required to be available for service of a summons within 150 miles of the court, for the 20 days immediately prior to trial. If they provided multiple addresses, pick the one closest to your court (make sure it's within 150 miles). You get yourself a civil subpoena (SUBP-001, available online), make sure it has or gets a stamp from your county clerk, and attempt service on the declarant within that 20 day window. Best to do it beginning on that 20th day. Use a sheriff to serve if possible, if not hire a process server (about $60).

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How and what procedure do I use for that ? The say the specialist is a JR legal specialist at Midland with one of their addresses, but not the one they used to sue me with.

get a stamped subpoena from the court website. some counties no not provide stamped subpoenas from their websites, so you may have to get it stamped by a clerk if that is the case. fill it out and hire the sheriff or a process server to serve the subpoena to the address nearest the court house and within 150 miles from the court.

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Read CCP 98. The person making the declaration is required to be available for service of a summons within 150 miles of the court, for the 20 days immediately prior to trial. If they provided multiple addresses, pick the one closest to your court (make sure it's within 150 miles). You get yourself a civil subpoena (SUBP-001, available online), make sure it has or gets a stamp from your county clerk, and attempt service on the declarant within that 20 day window. Best to do it beginning on that 20th day. Use a sheriff to serve if possible, if not hire a process server (about $60).

The address of the person is in San Diego,  Google says its 146 miles but I believe its  at least 175  to the court and it says   3 1/2 hr drive on Google . with traffic. Does this matter?

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The address of the person is in San Diego,  Google says its 146 miles but I believe its  at least 175  to the court and it says   3 1/2 hr drive on Google . with traffic. Does this matter?

 

is that the closest address to the courthouse where the declarant can be served? usually JDBs will throw 5 or 6 addresses where the declarant can be served, all peppered all over California. some in "care of"

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is that the closest address to the courthouse where the declarant can be served? usually JDBs will throw 5 or 6 addresses where the declarant can be served, all peppered all over California. some in "care of"

That is it and it says Iagree to be served at the following location and its a Midland address so even if the process server serves it when he is not there at the time, is it still valid. I would make special instructions for the server not to jsut drop it off with anyone. I will hire a service you think is better,  as I cant drive to courthouse to do it it for sheriff its so far from me.

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if google says it is 146 miles from the courthouse then a subpoena should be served. I don't think the sheriff department serves subpoenas any more in the county of San Diego, you will have to hire a process server and instruct him to serve only that person. if he or she is not available for service, process server should attempt 2 more times (total of 3) and if during the last attempt the employee is not there, then it should be left with someone who will accept the service.

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The address of the person is in San Diego,  Google says its 146 miles but I believe its  at least 175  to the court and it says   3 1/2 hr drive on Google . with traffic. Does this matter?

Straight line distance from the courthouse. Not the road. use a mapping program to make a printout.

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Straight line distance from the courthouse. Not the road. use a mapping program to make a printout.

It  does fall within the 150 miles on that type of map- so does this have to be filed with the court then I send a stamped copy for the process server? I just fill otu the form and nothing else correct?

I believe the person being served is not an attorney, I could not fing their name in the California State Bar.

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It  does fall within the 150 miles on that type of map- so does this have to be filed with the court then I send a stamped copy for the process server? I just fill otu the form and nothing else correct?

I believe the person being served is not an attorney, I could not fing their name in the California State Bar.

Correct. It must be stamped and then the process server can serve it. Ask the process server to fill out a declaration of diligence stating exactly what happened with the service attempts.The declarant is not a lawyer. You must also file an objection to the declaration with the court (and if time permits you attach the process servers declaration to it).

 

Some people have suggested getting a stamped subpoena downloaded, but that is not something that I am aware of.

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go to the court website and see if there in an stamped copy of the subpoena available for download. download it, fill it out, hire a process server, the process server when the job is completed will provide you with a due diligence report (sometimes they file it with the court for you), get a copy of the subpoena and the due diligence report and file it with the court, send copy of due diligence and subpoena along with POS to JDB lawyer.

 

I believe the person being served is not an attorney, I could not fing their name in the California State Bar.

 No, the person being served is not an attorney, unless CCP 98 states that he is an OC employee, chances are that he or she is a JDB employee , if your case is with midland, most likely, CCP 98 states that he or she is an employee of MCM.

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Correct. It must be stamped and then the process server can serve it. Ask the process server to fill out a declaration of diligence stating exactly what happened with the service attempts.The declarant is not a lawyer. You must also file an objection to the declaration with the court (and if time permits you attach the process servers declaration to it).

 

Some people have suggested getting a stamped subpoena downloaded, but that is not something that I am aware of.

Is file an objection to the declaration with the court on another form? When does that get filed?  What is that exactly? Objections to evidence?  How is it worded?

 

I could only do that if I have the process server meet me at the courthouse to pick it up for service from there, but hiring somene for serivce from there may be more expensive as I am closer to the san diego area by 45 minutes. I am not sure how these guys charge.

 

Is this an example

http://michellawyers.com/wp-content/uploads/2010/11/1.3_5-Objections-to-Plaintiffs-Evidence-and-Declarations-Submitted.pdf

if so where do I get pleading paper with the boxes on it?

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this is from one of RyenEX posts:

 

Here is the subpoena form to use http://www.courts.ca...nts/subp001.pdf
- Now that form is blank, it needs a stamp and signature from your court. Here is an example of what that looks like (from my county) http://www.sdcourt.c...RMS/SUBP001.PDF
- If your court website has a stamped version, great. If not take the blank one to your clerk and get the stamp/sig.
 

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this is from one of RyenEX posts:

 

Here is the subpoena form to use http://www.courts.ca...nts/subp001.pdf

- Now that form is blank, it needs a stamp and signature from your court. Here is an example of what that looks like (from my county) http://www.sdcourt.c...RMS/SUBP001.PDF

- If your court website has a stamped version, great. If not take the blank one to your clerk and get the stamp/sig.

 

Thanks I did get this one already and have filled with the court and will take it there to do.

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I could only do that if I have the process server meet me at the courthouse to pick it up for service from there, but hiring somene for serivce from there may be more expensive as I am closer to the san diego area by 45 minutes. I am not sure how these guys charge.

 

  There may be process servers in the San Diego area that may do the serving for perhaps cheaper. you will only need to email the forms.

 

Is file an objection to the declaration with the court on another form? When does that get filed?  What is that exactly? Objections to evidence?  How is it worded?

 

I could only do that if I have the process server meet me at the courthouse to pick it up for service from there, but hiring somene for serivce from there may be more expensive as I am closer to the san diego area by 45 minutes. I am not sure how these guys charge.

 

Is this an example

http://michellawyers.com/wp-content/uploads/2010/11/1.3_5-Objections-to-Plaintiffs-Evidence-and-Declarations-Submitted.pdf

if so where do I get pleading paper with the boxes on it?

 

take a look at post 297 in Homelessincalifornia threat. his attachments are called "motion in limine to preclude admission..." but you will name them "Objection to..." your Objection should also be followed with a declaration in support to the objection.

http://www.creditinfocenter.com/community/topic/320243-going-to-trial-in-california/page-15

 

hope this helps

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here is also RyanEx objection

 

https://drive.google.com/file/d/0BySXxIwHA4lVTzU2QW83SG5WbGM/view

 

and as calawyer has recently suggested in another post:

 

Ryan's objection is a great template.  Very clear and short.  However, since that time, another case has been decided that agrees with Target Bank.  It is called CACH v. Rodgers.  If you look at post 32 of the following thread, I suggest some language that can be included in the objection to incorporate that case:  http://www.creditinf...-31-days/page-2

 

 

Posted 19 October 2014 - 10:02 PM

CACH v. Rodgers now has an official cite.  It is CACH. LLC v. Rodgers (2014) 229 Cal.App.4th Supp. 1.

 

Try this in your brief instead:

 

      This is precisely the conclusion reached by the Court in Target Nat. Bank v. Rocha (2013) 216 Cal.App.4th Supp. 1.   There, Target National Bank (“Target”) sued Ms. Rocha for an alleged credit card debt exceeding $7,000.   Shortly before trial, Target served a declaration in lieu of live testimony at Trial executed by a Tiffany Lewis of Minneapolis, Minnesota.   Because she resided out of state, Ms. Lewis gave the address of her counsel as a place where she could be served.

     The Court held that Target failed to comply with CCP Section 98 and it was an abuse of discretion to introduce the declaration at trial.   Id. at p.7.   The Court reviewed the history of CCP Section 98 and noted the due process implications of presenting evidence by declaration at trial.   The Court concluded: “…….a party may only introduce a witness’s declaration if the opposing party had the opportunity to cross-examine the witness at deposition or could require the witness to be subject to cross-examination at trial.”

     The Court further found that giving an attorney’s address or other location where the witness does not actually reside, fails to comply with CCP Section 98. Id. at 7.   As the Court noted: “For all of the foregoing reasons, the Appellate Division concludes that the declaration offered by Target did not comply with Section 98 as Lewis was not available for service of process within 150 miles of the courthouse.   Thus, the trial court abused its discretion in admitting the declaration as evidence.   As that was the only evidence offered at trial, the judgment in favor of Target cannot stand.”

 

 

And follow that with:

 

The Court reached the same conclusion in the very recent case CACH v. Rodgers (2014), 229 Cal. App. 4th Supp. 1, 2014.  There, CACH, a debt purchaser, sought to introduce a declaration executed by “Magic West”.  The declaration was executed in Denver, Colorado.  Although the witness was not present in California, he purported to authorize plaintiff’s counsel to accept service on his behalf.  Defendant tried to serve the witness at that location to no avail.  The court nonetheless admitted the declaration over defendant’s objection.  Id. at 4.

 

The Appellate Division reversed.  The Court agreed with Target Bank, supra and held that CACH did not make Magic West available for service under CCP 98:  “We agree with the holding of Target v. Rocha, supra, 216 Cal.App.4th Supp. 1, 157 Cal.Rptr.3d 156 and find its logic persuasive. Magic West was not available for service within 150 miles and was not at the location for a reasonable period of time during the 20 days immediately prior to the trial as required by statute.”   229 Cal. App. 4th Supp. at 6.  “If the legislature had intended to allow long distance service without complying with section 1987, or making a third or hybrid type of service permissible, they certainly know how to say so.”  Id

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here is also RyanEx objection

 

https://drive.google.com/file/d/0BySXxIwHA4lVTzU2QW83SG5WbGM/view

 

and as calawyer has recently suggested in another post:

 

Ryan's objection is a great template.  Very clear and short.  However, since that time, another case has been decided that agrees with Target Bank.  It is called CACH v. Rodgers.  If you look at post 32 of the following thread, I suggest some language that can be included in the objection to incorporate that case:  http://www.creditinf...-31-days/page-2

 

 

Posted 19 October 2014 - 10:02 PM

CACH v. Rodgers now has an official cite.  It is CACH. LLC v. Rodgers (2014) 229 Cal.App.4th Supp. 1.

 

Try this in your brief instead:

 

      This is precisely the conclusion reached by the Court in Target Nat. Bank v. Rocha (2013) 216 Cal.App.4th Supp. 1.   There, Target National Bank (“Target”) sued Ms. Rocha for an alleged credit card debt exceeding $7,000.   Shortly before trial, Target served a declaration in lieu of live testimony at Trial executed by a Tiffany Lewis of Minneapolis, Minnesota.   Because she resided out of state, Ms. Lewis gave the address of her counsel as a place where she could be served.

     The Court held that Target failed to comply with CCP Section 98 and it was an abuse of discretion to introduce the declaration at trial.   Id. at p.7.   The Court reviewed the history of CCP Section 98 and noted the due process implications of presenting evidence by declaration at trial.   The Court concluded: “…….a party may only introduce a witness’s declaration if the opposing party had the opportunity to cross-examine the witness at deposition or could require the witness to be subject to cross-examination at trial.”

     The Court further found that giving an attorney’s address or other location where the witness does not actually reside, fails to comply with CCP Section 98. Id. at 7.   As the Court noted: “For all of the foregoing reasons, the Appellate Division concludes that the declaration offered by Target did not comply with Section 98 as Lewis was not available for service of process within 150 miles of the courthouse.   Thus, the trial court abused its discretion in admitting the declaration as evidence.   As that was the only evidence offered at trial, the judgment in favor of Target cannot stand.”

 

 

And follow that with:

 

The Court reached the same conclusion in the very recent case CACH v. Rodgers (2014), 229 Cal. App. 4th Supp. 1, 2014.  There, CACH, a debt purchaser, sought to introduce a declaration executed by “Magic West”.  The declaration was executed in Denver, Colorado.  Although the witness was not present in California, he purported to authorize plaintiff’s counsel to accept service on his behalf.  Defendant tried to serve the witness at that location to no avail.  The court nonetheless admitted the declaration over defendant’s objection.  Id. at 4.

 

The Appellate Division reversed.  The Court agreed with Target Bank, supra and held that CACH did not make Magic West available for service under CCP 98:  “We agree with the holding of Target v. Rocha, supra, 216 Cal.App.4th Supp. 1, 157 Cal.Rptr.3d 156 and find its logic persuasive. Magic West was not available for service within 150 miles and was not at the location for a reasonable period of time during the 20 days immediately prior to the trial as required by statute.”   229 Cal. App. 4th Supp. at 6.  “If the legislature had intended to allow long distance service without complying with section 1987, or making a third or hybrid type of service permissible, they certainly know how to say so.”  Id

 

THANK FOR THAT_ The service seems to fall within the miles of  150 I checked it on a distance map.

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