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Being sued...HELP


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I'm really grateful for the help so far.

 

I did not respond to the request for a witness (My daughter had surgery and through all that I didn't follow through).  Now I have received "Declaration of {someones name} in Lieu of Testimony C.C.P.98

 

This person is a custodian of Records for AMEX with the headquaters in Salt Lake City.

 

They included in the package statements as exhibits.

 

My Trial date is set for Beginning of February. 

 

I'm getting frazzled and confused as to my next steps :(

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I thought I missed my timeline for sending them the CCP 96? They sent me a Demand for Trial witness information (code of Civ. proc 2034.210 et seq) and demand for production of expert reports and writings (code of Civ. proc. 2034.210) and we were to meet at the lawyers offices but that was day of my daughters surgery so I missed it.  Should I send something anyway?

 

I guess my confusion comes in because they also sent me "Plaintiffs expert witness declaration ccp 2034 which said plaintiff will not be calling any witness to appear at trial.  Do I still subpoena this person mentioned in their ccp 98?

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I thought I missed my timeline for sending them the CCP 96? They sent me a Demand for Trial witness information (code of Civ. proc 2034.210 et seq) and demand for production of expert reports and writings (code of Civ. proc. 2034.210)

No you have not missed anything yet but you are at a critical stage. You can send a ccp 96 45 days prior to trial and no later than 30 days from trial. I missed most of this thread when it came up, but the information in post 21 was never confirmed, and it was never established that it was the ccp 96 and ccp 98 you received. The codes you cited here refer to expert witnesses (which people hire) and are not going to be used in this type of case. You don't have any that you are going to call (and they know that) and they say they aren't calling any, so it is really a non issue, I doubt if you were even required to respond to it.

and we were to meet at the lawyers offices but that was day of my daughters surgery so I missed it.  Should I send something anyway?

The lawyer could have had someone call to remind you. I'm surprised that meeting was even set up. I don't know the details, but I wouldn't bring it up if it were mine. The lawyers the pro and his office should have handled it better if they really need to meet with you. You don't want to call any expert witnesses  anyway so it's moot. With the stress of your daughters surgery you obviously would forget all about it. Look up the code and see what it says. I'm sure you would only be required to meet and confer IF you have an expert witness to call, and you don't. 

 

I guess my confusion comes in because they also sent me "Plaintiffs expert witness declaration ccp 2034 which said plaintiff will not be calling any witness to appear at trial. 

They will not call any EXPERT witness (Is what I'm guessing it said). That's not the same as not calling ANY witness. See what it say and read the code, but this is no big deal.

Do I still subpoena this person mentioned in their ccp 98?

YES you most certainly do. It will be the most important thing  you do (along with objecting to the ccp 98 declaration). Check for an address again. He should say he will be available for service at the lawyers office or somewhere else 150 miles from court or will allow someone else to be served on his behalf. Make sure they have not given you an address for service of subpoena (people miss this at times) 

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Look at the example of an MIL in ASTMedic's thread. It shows how an objection was made to the ccp 98 declaration he received. We are now call them "objection to ccp98 declaration of....." rather than MIL per Calawyer advice.

Also in the same thread see Seadragons 60 day check point list.

Read String's thread and HomelessinCalifornia.

 

Don't drop the ball.

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Thanks @Anon Amos.  I have prepared the subpoena and intend to send it out this week.  I went back and re-read the paperwork and YES they have said that the witness is available for service of process at the lawyers office which is less than 150 miles.  My intent is to send out the objection after the subpoena has been served.

 

More mail just came in and they are demanding the ccp96 so I will also work on sending that out.

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file the objection with the court and send the lawyer a copy with POS to both. Check your rules to see when this objection is supposed to be filed. They are usually filed about 5-7 days prior to trial, but some local rules call for 30 days before trial. You can use the local rule for when MIL's are due as a reference, but call it an objection rather than MIL. I would also file a trial brief. There is a lot to be done here, but it can be very effective.

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More mail just came in and they are demanding the ccp96 so I will also work on sending that out.

You most likely won't be calling any witnesses of your own or entering your own evidence, rather you are just going to use everything they present against them (for impeachment purposes). So, technically you do not have to respond to their ccp 96 request. However it sends a good message to simply respond with "defendant will use evidence and witnesses for impeachment purposes only"

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Thanks @Anon Amos.  I have prepared the subpoena and intend to send it out this week.  I went back and re-read the paperwork 

 

Make sure your timing Is right. He should have said he would be available for service within the time frame of 20 days prior to court, so it needs service attempted several times within those 20 days.

 

I'll check back on you later. Keep up the good work.

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Thanks @Anon Amos.  I went back and re-read YES they have said that the witness is available for service of process at the lawyers office which is less than 150 miles. 

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somewhere in this statement he should have said for a reasonable amount of time in the 20 days prior to trial he will be at the address. Otherwise you won't know when to serve the subpoena. Read everything they give you several times. Make sure you aren't missing anything.

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I would send the lawyer a meet and confer letter telling him that per ccp98 they are required to give you an address he will be at for personal service within 20 days prior to trial and that he cannot appoint some one in his place to accept service per ccp 1987.

Tell them you plan to subpoena and file a hearsay objection to the ccp98 declaration and that they are to comply with the code.

This will send them a good message and will put some pressure on them.

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  • 2 weeks later...

They have finally responded.  However, the plaintiff witness list has ME, 3 other names added to it including the first witness they had mentioned before. They also, say "Or any other representative of AMEX"

 

1. Do I subpoena all 3 witnesses?

2. Address is still at the lawyers office

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They have finally responded. However, the plaintiff witness list has ME, 3 other names added to it including the first witness they had mentioned before. They also, say "Or any other representative of AMEX"

1. Do I subpoena all 3 witnesses?

2. Address is still at the lawyers office

This sounds more like a witness list in response to a ccp 96 witness request. Does it say witness list under ccp 96? I don't think this is a response to the M&C letter it just happen to come after it. Did it mention ccp98 or your M&C letter at all?

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