easy619

My California Appeal (Edit: I Won!)

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Here we go. Today I had my Notice of Appeal served on plaintiff and filed with the court. I thought I would start this thread to help other california appellants (as well as gather advice for myself). My thread Motion to Compel Granted details further into the case and the trial itself, but here's a little background:

 

I was sued by midland funding llc in california about a year and a half ago. The cause of action was account stated, for a chase credit card allegedly defaulted on and sold a year  or so before lawsuit. I filed/had friend serve a general denial, along with a POS,  as the complaint was not verified, and was a limited civil complaint. I entered one affirmative defense, offering that plaintiff lacked legal capacity (standing) to sue. I beat midland to the discovery punch and filed a Request for 

Production of Documents. They fumbled the response, and missed the deadline. I sent a few meet and confer letters before filing a motion to compel further documents. I won the motion, plaintiff stumbled to comply. I sent more meet and confers, then another motion for compliance and terminating sanctions. Judge granted order to produce forward flow, but denied terminating sanctions. Different lawyer (not rent a lawyer) began handling case for plaintiff. Plaintiff failed to produce forward 

flow. Come trial month, I sent a CCP96 request. Plaintiff responded, listing a witness "PErson most KNowledgable". I filed MIL and declaration in support based on non-compliance with ccp96 (witnesses must be listed by name and address). Plaintiff sent a second CCP96 statement (not permittedby code) listing witness by name and address.

 

I filed a Motion in Limine and Trial Brief objecting to the entrance of the witness under ccp97. At trial, judge denied my MIL. Plaintiff showed up with witness. Plaintiff called witness, I objected citing CCP 96/97. Overruled. Witness testfied that she had personal knowledge of my alleged account, even citing the balance to the penny off the top of her head. I cross examined witness thoroughly, demonstrating that she had no personal knowledge of chase business records,and hence could not authenticate records coming from chase under the business records exemption to hearsay. Judge overruled my motion to strike witness, allowed witness to authenticate bill of sale, ect. I objected to each peice of evidence as it was introduced, leading down my list of objections, code and case law. Each objection overruled. Plaintiff put me on stand, got chase statements admitted based on 3 address matches that I lived at/statements were sent to. Plaintiff moved for judgement, and won.

 

Before proceeding with the appeal information, I thought I would mention what I would do differently if I could:

 

1) send Request for Admissions. If plaintiff had failed to meet deadline on this along with/instead of RFP, I could have perhaps won that way.

2) Perhaps not file second motion for compliance. Asking for sanctions and attempting to hammer plaintiff seemed to have alerted them, and they switched a more competent lawyer onto the case. I bad mouthed plaintiff a bit in the motion, basically calling them incompetent buffoons. 

3) Maybe not file any motions at all. I think if i would have let them slide and disappeared until trial, I could have ambushed them. They probably would have just went the same old CCP98 route, which seems a lot easier to beat given Target v Rocha.

4) OR maybe pursue motions further. Asked judge to push trial back, tried to really push the issue on the forward flow.

5) GET A COURT REPORTER. This would have possibly shown judge that I meant business, maybe swaying judge to rule more fairly and to the letter of the law. Also, it would have aided in preserving a better record on appeal.

 

Now on to the appeal...

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Now onto the appeal: 

I filed a Notice of Appeal for a limited civil case, with the trial court. With it i filed a Notice Designating Records, in which I chose a Clerks Transcript of all relevant documents filed with the trial court, and exhibits admitted at trial. I opted for a Statement on Appeal, as the form of oral record, as I did not havea court reporter present.

 

The basis of my appeal is that the trial court abused it's discretion in allowing plaintiff to call a witness not listed on ccp96 statement/being allowed to submit an ammended ccp96 statement, despite objection from defendant on CCP97 grounds. Witness was then allowed to authenticate a third parties business records. These documents were objected to thoroughly, but overruled and admitted into evidence. These documents constituted standing for plaintiff. I will also be arguing that the witness was not qualified to authenticate documents (no personal knowledge, admitted never working for chase), and further that he documents themselves are flawed. But the main point is the CCP 96/97 issue, which led to them being able to win at trial.

 

My appeal is for a limited civil case under 10k. Everything I file and reference will be for a limited civil case. The process is basically the same for unlimited, but different forms are used. Please note to check your local rules for appeal, asthey may differ. The california appeal process looks something like this:  

 

-Judgement Entered

-You have 30 days to file notice of appeal. serve with pos on plaintiff. have copy including POS stamped and filed with court app102 limited civil.pdf

-You have 10 days to designate records for appeal app103 notice designating record of appeal.pdf(if not file along with Notice of Appeal. These records will contain all docs pertaining to the issues at appeal. Appeals court can only review the records you submit. The records will consist of a Record of Documents, which can be either a clerks transcript, or an agreed statement. You can proceed either without, or with a Record of Oral Argument which can be:

 a. reporters transcript

OR

 b. transcript from official electronic recording

OR

 c. COpy of official recording

OR

 d. Agreed Statement

OR

 e. Statement of appeal app104 proposed statement of appeal.pdf

 

- I now have 20 days to file proposed statement of appeal. serve copy on plaintiff with POS, file originals with court. This will be a description of the trial, including my oral objections that were overruled at trial. 

- Plaintiff has 10 day to file proposed response to statement

- Judge has 5 days to rule on statement

- I have 10 days to serve and file objections to judges modification.

- I have 40 days after filing of record to prepare a brief detailing the basis of legal errors made with supporting code and case law. Must have green cover and include appendix of all records. due 40 days from filing of record. 1 copy goes to superior court, 1 to plaintiff, 4 to appellate court.

-Plaintiff can file an Opposition to my Brief, to which I can file a Reply.

-From there, the case is put on calender, where it will eventually be ruled on by 3 appeals judges. 2 of 3 is necessary to overturn. Oral arguments may be heard, if not waived by parties.

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Big move getting this filed. Good luck to you, easy.

 

I've got a lot of admiration for what you're doing here. Lots of threads on the CIC covering the regular lawsuit/trial process, not so much when it comes to an appeals process. You've got some guts and, just as important, you also have the law on your side.

 

I imagine the plaintiff knew what they had in your first judge (that the judge would let them get away with things they shouldn't have) - they won't have that this time around > I'd pay real money to see their faces when they get your Notice to Appeal.

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Hi Easy,  Good for you . I am appealing too. My trial was similar to yours but there was no witness. You can read my thread and see how the judge stopped my trial and refused to rule until 3 months later.

 

Happy days going to the mailbox for three months and then find a judgement against you with no reason. Even the appeal process hasbeen crazy for me.  Glad to see someone posting about this because we are the few and far between and most posters here cannot give us advise, so you kind of feel alone in the process of appeal.

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Yes, I don't imagine plaintiff will be thrilled to receive this. Guess who's back...

 

I think RyanEx is right and plaintiff's attorney may well have dealt with this judge before, and suspected it would be easy going. Either way, I've begun working on my Statement on Appeal. 20 days to file. 

 

@hot in az good luck in your appeal my friend. I've done a lot of research into the california appeal code (title 8), and have a good feel for what I have to do. I've been aided with a bundle of docs from a fellow California board member who took the appeals process all the way. The true task will lay in finding some kind of case law to bolster my argument. The cornerstone of my appeal will be the Statement on Appeal/Agreed Statement of Oral arguments, as the trial minutes don't show all of my objections. This record of objections will be absolutely necessary for the appeals judges to even be able to consider my argument. Again, if you're going to trial, get a court reporter! I kind of slipped up on that one. There was a court reporter at both of my motion hearings, I just assumed there would be one at the trial. And I never looked into getting one.

 

While I think I've got my work cut out for me to pull together a record and brief that can convince a 2-1 majority of appeal judges to agree that the trial judge made prejudicial errors in allowing the admission of the witness. The witnesses lack of personal knowledge, and the no substantial evidence, business records exemption to hearsay issues will be more of a long shot, more thrown in just to attempt to cast doubt on the whole proceeding. But I think it's worth the gamble, I may well have a better chance than I did at trial. 

 

This could potentially be a nice piece of case law for californians.

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In the Statement on Appeal form, there is a section for Motions and motion hearings in the trial court. I'm assuming this would include my 2 motions for further documents and for compliance? I'm not sure if i should list my Motion in Limine here as well. I attached the empty form to view. app104 proposed statement of appeal.pdf   I also added the other forms above.

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San Diego, midland's backyard. Maybe the only  place they would bother/could to bring a witness. But, yes, I was surprised by the judge. There are a few websites devoted to how bad my judge is, also has a high reversal rate in appeals. 

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Assuming you already know this living there but San Diego Courts website has an excellent section on Appeals with documents required and the process from beginning to end. Took a look at it last year and found it to be very helpful.  

 

 

 

 

 

I am not an Attorney

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In the Statement on Appeal form, there is a section for Motions and motion hearings in the trial court. I'm assuming this would include my 2 motions for further documents and for compliance? I'm not sure if i should list my Motion in Limine here as well. I attached the empty form to view. attachicon.gifapp104 proposed statement of appeal.pdf   I also added the other forms above.

Yes you will want to include the Motions. Better to have it in than not included. Never know if you get to oral arguments what the questions could be from the judges....might be able to slip in a statement that had the trial court judge enforced the Motion of Sanctions/Complinace I may have had the evidence to prove the lack of standing....

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I would also expect them to want to settle the judgement rather than spend the money on the appeal..so you may find a settlement number that works for you.

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I have read through the san diego superior court's appeals section. It is very helpful and informative...too bad I didn't look there until a week ago.  Also I wouldn't be surprised if Midland came back with a better settlement offer. This Statement on Appeal is going to require some work...I need to reproduce all relevant testimony of both myself and the witness from trial. Luckily I know what I said, and I have my lists of cross exam questions still in my trial binder, I checked off the ones I had asked and can pretty well recall how witness answered. 

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My court had a video/ audio camera . Because my trial was over two hours,  I had to pay to have it transcribed for appeal. Thus not having to have a reporter at the trial. I can't believe in Ca they don't have this???

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My court had a video/ audio camera . Because my trial was over two hours,  I had to pay to have it transcribed for appeal. Thus not having to have a reporter at the trial. I can't believe in Ca they don't have this???

Yeah, I actually kind of assumed that the trial was being recorded in some way. There were court reporters at both of my motion hearings. I thought they were at least recording audio from the trial. Budget cuts I guess.

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You think having minutes of the trial is better for appeals or better not have it like what skippy1960 stated "One of the larger decisions regarding whether to appeal or not is the fact that there was no court reporterd and not likely a recording of the oral discussion. When these don't exsist the appeal is dependent on " Agreed Statement" completed and agreed to by both sides and the judge. This could work in your favor, because the bulk of your appeal is based on the rulings on your objections to evidence being entered, and possible your MIL."

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You think having minutes of the trial is better for appeals or better not have it like what skippy1960 stated "One of the larger decisions regarding whether to appeal or not is the fact that there was no court reporterd and not likely a recording of the oral discussion. When these don't exsist the appeal is dependent on " Agreed Statement" completed and agreed to by both sides and the judge. This could work in your favor, because the bulk of your appeal is based on the rulings on your objections to evidence being entered, and possible your MIL."

The trial minutes are as close as I have for an official record of the trial. The minutes mention my motion in limine and a few objections, but not all of them. I think it will help to provide a record of the trial, as well as maybe help jog the judge and JDB attorney's memory as far as the trial. 

I am using a statement on appeal (which will become an agreed/settled statement after jdb and judge add their say). Without a court reporter or audio recording, it's really the only way to show an oral record of the trial. I've been working on mine, it's mostly done, just need to run through it a few times. I will include in it every question and answer (to the best of my memory) for both myself and the jdb witness on the stand. I plan on posting the cross exam transcripts as well, to help people get an idea of how a JDB witness may answer questions.

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:clapper:  :clapper:  :clapper:  :clapper:

 

I applaud your efforts like you have no idea. What you are doing is not only a good thing for you but a good thing for everyone who sees that judge after you. So proud of you and, although I am here so sporadically anymore due to my job, I will gladly help in any way I can.

 

I salute you!!

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What you are doing is not only a good thing for you but a good thing for everyone who sees that judge after you.

If you don't mind, I'm going to extend the demographics to ANY California pro se defendant in OP's shoes. Without brave people like the OP and the other member (think the name is James?) blazing the appeal trail, we'd all have a difficult go at it should we find ourselves in the same position. I'd like to add my awe at the tenacity and impressive display of bravery the both of you are showing.

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wow that's the first time i ever heard of midland bringing an actual 'witness' (even though we all know they are actually unfit to testify)

 

best of luck and thanks for fighting the good fight and documenting it so well

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I think you can read my case thread and I sent a lot of good gouge to help people appealing. pound them hard in the opening brief and don't let them file a motion to dismiss the appeal.

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I received a lot of help and knowledge from this board, even though I lost. So, I figured I might as well publicize my appeal so it can be added to the wealth of knowledge available here. 

 

Seadragon, I haven't started on my brief yet, but I know that will be key. Also, I'm curious to see how plaintiff and judge will want to modify my statement on appeal. The statement is all done, I think it's pretty comprehensive. It will be served and filed tomorrow.

 

Qbert, I believe there were a few reasons they brought a witness: location (encore capital and mcm are based in my county), it was a decent $ case, and I blasted midland in my motions and embarrased them a bit. I think they may have known that the judge would let them get away with some bs also. The plaintiff attorney who handled latter part and trial did his home work for the trial, he had a few unique strategies for my case. Despite many board members doubt about them bringing a witness, I thought that they would. There was some gamesmenship between jdb lawyer and I, a few snide lines in our correspondence. I think they wanted to get me. Speaking of the witness, I wanted to post my transcript of my cross examination of the witness, to help give an idea of how a jdb witness may possibly respond on the stand. The witness admitted easily to having no knowledge of OC's systems/policies/procedures, and I got the witness stumbling and panicked over some of the midland robosigning and forward flow business. I still had more questions, but after the judge scolded me for "holding a deposition", and after seeing how the judge didn't care about the witnesses lack of personal knowledge, I stopped questioning. 

 

Here's my summary of my cross exam of the jdb witness (names redacted): PMK testimony REDACTED.docx

 

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Here you go. Made a PDF of it.

thanks ThunderCA, I should have done that to begin with.

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