easy619

My California Appeal (Edit: I Won!)

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Here we go! Briefing time. 30 days to submit. I'd like some peoples opinions on something here. When considering an appeal,  the appellate court looks first at what the standard of review is for the particular kind of decision made in your trial court case. The primary 3 are:

 

Abuse of Discretion (Any decision that involves the judge using his or her discretion (such as whether to admit certain evidence in the trial) comes under this standard. Abuse of discretion occurs when the trial court judge makes a ruling that is arbitrary or absurd.)

 

Substantial Evidence ( The appellate court just decides whether a reasonable fact-finder could have come to the same conclusion based on the facts in the record.)

 

De Novo (If the issues involve questions of law — like the interpretation of a contract or a statute — the appellate court does not assume the trial court's ruling is correct but looks at the issue from the beginning (de novo), exercising its independent judgment)

 

I believe my case has a little of each. I believe the most appropriate is De Novo or Abuse of Discretion,  as the CCP96/97 issue of my objection being overruled seems to be an abuse of discretion. But i would also like the appeals court to consider my objection with it;s own independent judgment. I believe i must indicate what the standard of review appropriate to each issue in my appeal.

 

Here is a list of general brief rules/requirements:

 

Brief Requirements:

1)State nature of action, the relief sought in trial court, the judgement. state that the appealed judgement is final.
 
2)Provide summary of the significant facts limited to matters in record (referencing clerks transcript)
 
3)give legal errors (referncing clerks transcript)
 
4)explain how legal errors hurt me and what appeal court should do
 
FORMAT
Must have green cover and be bound
 
Include a certificate stating length in words of brief (under 6800)
 
HEADING IN UPPERCASE italicize case names
 
13 point font, 1 1/2 spaced, numbered pages
 
1 1/2 inch side margins, 1 inch top and bottom
 
FILING
---
Serve a copy on respondent, clerk of trial court, and 4 copies to appelate court.
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Here's what I've begun to prepare:

 

LEGAL ERRORS
A. CCP 96 / 97  
Standard of Review: Abuse of Discretion or De Novo ?
- respondent supplied a ccp 96 statement with only witness not identified by name or address
- respondent later supplied supplemental ccp96 statement in response to appellant's MIL to preclude witness. respondent never filed a motion or request for supplemental statement.
-defendant objected to the entrance of witness/supplemental  statement statement both orally at trial and in MIL. Trial Judge overruled stating that defendant was not harmed.
How this Prejudiced Defendant at Trial:
Plaintiff's entire case hinged on testimony of the witness. When plaintiff supplied a ccp 96 statement not listing a valid witness, defendant made this issue the focus of trial argument and preparation. Defendant assumed that because the code stated the witness would not be admitted if objected to under CCP97, that the witness couldn't be admitted. If plaintiff would have submitted a valid witness on it's first (only valid ccp96 statement), defendant could have had full time to investigate and prepare for the witness, in the time frame alotted by the rules of court. The overrulling of defendants oral and MIL objections to the entrance of the witness under ccp 97 was catastrophic to defendant's ability to defend the case, and caused irreparable harm to the remainder of the trial.
 
B. Third Party Witness Authenticates Business Records
Standard of Review: Abuse of Discretion. (or De Novo ?)
-Witness admitted not having worked OC, nor being familiar with their record keeping.
How this Prejudiced Defendant at Trial:
Plaintiff's only evidence was admitted as business records based on the witness testimony. Witness disqualifed herself (according to case law). Defendants hearsay objections were overrulled. The wrongful admittance of evidence caused irreparable harm for defendant as this evidence was used to secure judgement.
 
C. Weakness of Evidence (substantial evidence)
Standard of Review: Substantial Evidence
-bill of sale lacks identifying info
-field data sheet created by chase, not midland
-supporting affidavit to bill of sale not compliant with ccp2015.5
How this Prejudiced Defendant at Trial:
Evidence was used to prove standing to sue.
 
 
 
 
 
Of course I need plenty of supporting case law :) Off to the law library I go next week. I will be searching the bender guides (and everything else i can find) for CCP 96/97 case law, trial procedure, post trial. I'll post up a rough draft of my brief in a week or two so I can fine tune and then have a week to print/prepare/double check/obsess over before it gets filed. 
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Have you seen the new appeals case won (and published) in SoCal that followed Target vs. Rocha? Calawyer posted it a few days ago: http://www.creditinfocenter.com/community/topic/324516-target-v-rocha-comes-to-southern-california/

 

A good read and relates to what you are asking about above.

Yes! So De Novo it is for the CCP96 issue. And for the witness authenticating records as well I believe.
 
"However, statutory interpretation and the proper application of a 
statute are questions of law that are reviewed de novo. (Boy Scouts of America National 
Foundation v. Superior Court (2012) 206 Cal.App.4
th428, 443.) Erroneous introduction of 
evidence must result in a miscarriage of justice and reversal should be granted only where the 
reviewing court is convinced that it is reasonably probable that a result more favorable to the 
Appellant would have been reached but for the error. (Evid. Code, § 353; Brokopp v. Ford"
 
Even though my case was not a CCP98 case, I think I want to cite this case and Target v Rocha  as an example of how statutes are meant to be enforced as written in similar debt collection cases.
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I'm deep into writing my brief. I'm going to make one more trip to the law library to look deeper into a few things. I'll be posting it for critique early next week, then filing soon after that. I'd also like to share some the case law I've found, which could help bolster fellow posters trial briefs.

 

So, there is basically no cases that expressley interpret CCP 96/97, but there are a few cases on the now repealed ccp 1825.1, the predecessor of ccp 96. It also was a request for statement of witnesses and evidence. And there are two cases that will help me.  Basically the only two options plaintiff had to seek amendment of its ccp9 6 statement was to either have shown good faith effort to file timely (which it was on time) or to be granted amendment for a mistake, excusable negligence. This usually requires filing a motion, which plaintiff didn't do. This is where i will absolutely hammer plaintiff, as there is oodles of ccp 473 (the code governing amendment of filings for this reason). I have 7 cases which all support my stance. If i can show the trial court abused its discretion in allowing the amendment of the statement to include the witness, then poof witness was never there. Plaintiff's council's own foot went in his mouth at trial on this one, as he stated the reason for amdendment and it was not because it was a mistake or excusable negligance. It's just too bad the record doesn't implicitely reflect this.

 

I also found some additional evidence code case law, quiflied witness, business records exemption to hearsay. I also plan to hammer them on the best evidence/completeness of evidence for trying to pass off the bill of sale as the governing agreement and withholding (against court order) the credit card purchase agreement.

 

I'm liking the way this appeal brief is taking shape. I'll post all of the case law soon. This whole appeal business is nearing the crescendo.

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Easy 619, I have kept up with you case from the beginning and wish you the very best and you are really doing great. As such, here is some constructive input for your document. The document as a whole is very good but it may need some refining here and there. There are a number of grammatical mistakes, missing commas, upper case vs lower case issues, etc. Additionally, if you have time, the Case quotations stick out. Its assumed  you shortened them to reduce the number of words, but it makes it look like they are not complete. For example, the complete case would be Border v. Kuznetz (1980) 103 Cal. App. 3d Supp. 14 [162 Cal. Rptr. 881]. Unless you are confined to the number of words, the full caselaw would likely look more professional and likely be easier for the judges to reference. Also, It feels like there is more room in your arguments. Your CCP 96/97 section is very good and hopefully will win your appeal by itself, but it feels like there is the ability in the second half  of the document to push harder on lacks authentication/lacks foundation.

 

A writing is hearsay unless under some exception. Therefore, the document must be authenticated, relevant, and allowed under the exception to the hearsay rule. The primary argument here is whether the documents are authentic. Another argument is if the witness is qualified to authenticate the documents. Another argument is has the witness laid foundation as to the authenticity of the documents

 

Here is a concept from one of your sentences to push the authentication/foundation issue- By testifying that she has never worked for, nor is she familiar with the procedures of CHASE BANK NA, Ms. JDB WITNESS has proved she cannot authenticate the documents nor the policies and procedures associated with the mode of preparation and identify of the documents, including whether or not the documents were made in the regular course of business of a non-party who is not JDB or whether the documents were made at or near the time of each act, condition or event. Also, the witness was not qualified to testify as to the mode of preparation or accuracy of the records to indicate the trustworthiness of documents generated and maintained by non party CHASE BANK NA and therefore this witness has not and cannot lay proper foundation as to whether the documents are authentic, accurate or reliable, even if the records have been sold to Plaintiff and now exist in their system.

 
Not saying this is a good argument, it just feels like you should push the fact the documents could not be authenticated because the witness did not lay a proper foundation as to each exact item admitted into evidence. Also, the fact the court required Plaintiff to produce the Purchase Agreement seems like a argument that can be expanded especially if you objected to the document at trial on the grounds that it was not produced in full in compliance with the court order and therefore could not be authenticated nor could JDB lay foundation as to the content of an incomplete document.
 
Good luck and keep us updated. We are pulling for you. 
 
 
 

 

 

I am not an attorney

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I corrected all of my citations to the full oficial cite, and cleaned up the grammar stuff. I added some more to the authentication/foundation/hearsay section, thanks to a nice lead from one of the most helpful and knowledgeable board-members:

 

If the witness cannot establish how the records were prepared or how the recorder obtained the information, the foundation is not established. In Remington Investments, Inc. v. Hamedani (1997) 55 Cal. App. 4th 1033 [64 Cal. Rptr. 2d 376], the FDIC took over for a failed bank. To lay a foundation for admission evidence of a Note Ledger establishing the account alleged to be owed by defendant, plaintiff presented the declarations of plaintiff's own vice-president. He declared that he is familiar with the records of commercial paper owned by plaintiff.. He stated that he is a custodian of plaintiff's records, that plaintiff's records are made in the ordinary course of business at or near the time of the event they record, and that they are made by persons who have a business duty to record such information. He declared that he found the Note Ledger in the records plaintiff received from the FDIC. Plaintiff presented no evidence of the recordkeeping practices of the bank during the period allegedly recorded on the Note Ledger, and hence presented no evidence of the manner in which the Note Ledger was prepared, the origin of the information it contained, etc. The Defendant objected to admission of the Note Ledger on grounds of hearsay and lack of foundation for any exception to the hearsay rule. The trial court sustained the objection, and denied plaintiff's motion, ruling  that if the witness cannot establish how the records were prepared or how the recorder obtained the information, the foundation is not established. The D'Oench Duhme cases and statutes, created to aid the FDIC in laying foundation for records it acquired from failed banks,  did not provide, as the plaintiff urged, that the "records speak for themselves as to enforceability of the debt." A rule allowing or requiring admissibility of any document found in a bank's records without evidence of reliability would be a sharp break with past practice, could raise grave implications for the continued maintenance of reliable bank records over the long term, and is far beyond the scope of the D'Oench, Duhme doctrine. If the vice president of the FDIC cannot lay foundation for documents without establishing how the records were prepared and maintained, despite their being the D'Oench, Duhme doctrine to aid, how can an employee of a third party debt buyer who has admitted to not being familiar with such practices?

 

and this:

 

To be qualified to lay the foundation on mode of preparation and identity of the computer records, a person must generally understand the system's operation and possess sufficient knowledge and skill to properly use the system and explain the result and data. (People v. Lugashi (1988) 295 Cal. App 3rd 632, 640, 252 Cal. Rptr. 434) Ms. JDB testified that she was not familiar with the systems or procedures of CHASE BANK NA. Ms. JDB was clearly not qualified to lay the foundation for any of the documents admitted into evidence, and her testimony was wrongfully accepted as sufficient to lay foundation. Ms. JDB failed to lay foundation for each piece of evidence offered, merely that the records appear in MIDLAND's system. If this argument isn’t good enough for the FDIC, when specific statutes exist to aid them, how can it be sufficient for a Process Analyst working for the servicer of a company claiming to have purchased records from a third party?

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waiting for respondent's reply brief. after that i'll have 20 days to file my reply. even if they don't bother to file a reply brief, that's not a forfeiture or admitance or anything in california. I imagine it will be another 1-3 months after all briefs filed to have the appeal heard. I doubt respondent will show or request oral arguments before the appellate panel, so likely the panel will make their decision based on the briefs, the available record supporting, and their interpretation of the law. I think my argument is solid, my only concern is the record. But my primary issue is the CCP 96/97 thing and that has better documentation than the testimony and evidence issues.

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Update, respondent didn't bother to file a brief. They either don't want to spend any more money at all, think they'll win without it, or think they're going to lose regardless. This leaves my brief and record on appeal as the only things the appellate panel will use to make their decision. i'm fine with that.  Either way the case should be calendered soon and i imagine i'll hear a ruling in a month or 3.

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Dear easy619:

 

I have been faithfully following yr case, and clearly, would like to give you all the emotional support that I can.

 

Looking at the Target Vs. Rocha, and CACH Vs. Rogers, both were lost but they filed the appeal, and got verdict reversed.

 

It seems to me, that's part of the path.

 

My trial is coming up real soon, and I mean it. Surprisingly, JDB did not filed a CCP 98, nor send me one. But they responded my CCP 96.

 

So, as you can see, I am preparing for verbal agrument/ live trial.

 

You are way ahead of me, and I must say, hang-in-there, stay tough.

 

That's what it takes, ....

 

Rememer this : You Are Beautiful !

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I believe they will try to argue orally at the appellate. If they do then object as you have to file a brief to orally argue. Also without filing a brief they have basically confessed your brief is correct. I believe there are cases that show the appellate division under de novo review has to rule in favor of appellate if you have shifted the burden onto them, and they didn't respond.

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Update, respondent didn't bother to file a brief. They either don't want to spend any more money at all, think they'll win without it, or think they're going to lose regardless. This leaves my brief and record on appeal as the only things the appellate panel will use to make their decision. i'm fine with that.  Either way the case should be calendered soon and i imagine i'll hear a ruling in a month or 3.

 

 

Wow.  Very unusual.  Did you receive any notification from the Court?  Sometimes they send out a notice saying that they have received no brief and giving them a short period of time to respond.

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Update, respondent didn't bother to file a brief. They either don't want to spend any more money at all, think they'll win without it, or think they're going to lose regardless. This leaves my brief and record on appeal as the only things the appellate panel will use to make their decision. i'm fine with that.  Either way the case should be calendered soon and i imagine i'll hear a ruling in a month or 3.

 

Maybe, it would work for you in California.

 

However, in Arizona: 

"Non-filing of an appellee or cross-appellee memorandum shall not constitute confession of error.".

 

========================================================

 

[Arizona] Superior Court Rules of Appellate Procedures-Civil, Rule 8

Rule 8. Appellate Memoranda; Motions for More Time; Procedural Motions

 

(a) Appellate Memoranda.

(1) .....................

Non-filing of an appellee or cross-appellee memorandum shall not constitute confession of error.

 

=============================================================================

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Interesting, I just noticed this in Rule 8.200 (a)(2)1pixel.gifEach respondent must serve and file a respondent's brief.  MUST.    I filed on the 26th of september, there's would be due 30 dyas later (+5 for mailing) which would be the 31st of october. 

 

Here is relevant the code for failure to file  

Rule 8.220. Failure to file a brief

(a) Notice to file

If a party fails to timely file an appellant's opening brief or a respondent's brief, the reviewing court clerk must promptly notify the party by mail that the brief must be filed within 15 days after the notice is mailed and that if the party fails to comply, the court may impose one of the following sanctions:

(1)1pixel.gifIf the brief is an appellant's opening brief, the court may dismiss the appeal;

(2)1pixel.gifIf the brief is a respondent's brief, the court may decide the appeal on the record, the opening brief, and any oral argument by the appellant.

(Subd (a) amended effective January 1, 2008; previously amended effective January 1, 2007.)

© Sanction

If a party fails to file the brief as specified in a notice under (a), the court may impose the sanction specified in the notice.

(Subd © amended effective January 1, 2008.)

(d) Extension of time

Within the period specified in the notice under (a), a party may apply to the presiding justice for an extension of that period for good cause. If the extension is granted and the brief is not filed within the extended period, the court may impose the sanction under © without further notice.

 

So, they would have another 15 days after the notice. 13 or 14 of which have passed. After that, the will hear the appeal only on my record, my brief, and my oral argument. I can't find any code specifically prohibiting respondent from not arguing orally because of failure to brief. @Seadragon have any idea on where that is or what cases specify this?

 

 

Wow.  Very unusual.  Did you receive any notification from the Court?  Sometimes they send out a notice saying that they have received no brief and giving them a short period of time to respond.

 

I haven't received anything. It would appear that by code the clerk should have sent them a notice, but by my calculations their time for that should be up soon as well.   I find it humorous though, this failure of theirs to file a timely brief really hammers home all of my briefing on how plaintiff doesn't care to follow code. Just another example.

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Nice work, easy. As I see it, these JDBs are all about mass produced,cookie-cutter lawsuits. What they are used to doing is simply clicking software buttons that populate all the usual motions and filings that they deal with (the summons, RFDs, objections to defendants RFDs, Trial Briefs, etc.). When was the last time you saw a member post a JDB opposition to a CCP 98 objection? I haven't seen one. The Trial Brief Midland filed in my case was as generic as you could get, citing oppositions to defenses I wasn't even employing. What you've done is all original work that they aren't used to dealing with, in return they have to come up with original work to counter your appeal, point by point, and that simply isn't their game.

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Nice work, easy. As I see it, these JDBs are all about mass produced,cookie-cutter lawsuits. What they are used to doing is simply clicking software buttons that populate all the usual motions and filings that they deal with (the summons, RFDs, objections to defendants RFDs, Trial Briefs, etc.). When was the last time you saw a member post a JDB opposition to a CCP 98 objection? I haven't seen one. The Trial Brief Midland filed in my case was as generic as you could get, citing oppositions to defenses I wasn't even employing. What you've done is all original work that they aren't used to dealing with, in return they have to come up with original work to counter your appeal, point by point, and that simply isn't their game.

True, i'm sure as a business they could use their time more efficiently (and for more profit) to crank out generic paper work for new cases that they will win most of by default, rather than spending more money and manpower on continuing to fight my case as it moves into year 3. Profit margins  sinking and sinking.

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love to see that my witness cross exam transcript has been downloaded over 100 times..hopefully future litigants can really turn up the heat on these (perjuring?) JDB witnesses who conveniantly remember the exact details of the person on trials account down to cent while being completely oblivious to any other details of the sale. i'd love to see somebody (defendant) bring a big $ lawyer to trial and get one of these witnesses locked up for lying on the stand.. maybe then jdb's would think twice before making a mockery of the justice system to fatten their own wallets...

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