DaSurfer13

My Trial date is Sept 29th, I have to answer a CCP 96!

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I'm stressing! I have brain freeze! Not sure what to do now. I have to answer a CCP 96, don't know if I should subpoena a witness that works in Plaintiff's attorney's office - he submitted a CCP 98. HELP!

Like I mentioned in another post, I'M in Ventura County, Calif, my case is assigned to Judge O'Neill, don't think he liked me much the 1st time I was in front of him.

BV80

Xenophon

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@DaSurfer13

I'm posting what you wrote in the other thread.

I'm being sued by a JDB, Sierra Managed Asset Plan, LLC, their attorney is Kenosian & Miele, LLP. I have copies of 4 Bills of Sales, starting with Citibank & ending in the hands of Sierra.

I'm not a CA resident, so I'm not the best one to give you any help. I'm sure plenty of CA members will help you. I do have a couple of comments, though.

You mentioned that an affidavit had been provided by someone at Citibank, SD. If this is in limited civil, I do know that affidavits are not allowed at a trial if you object.

Then you said the witness works in the attorney's office. I'm not sure how that person could be a witness unless the person also works for Sierra.

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@BV80

How do I object to the Affidavit?

Also, To respond to their CCP 96, I'm going to subpoena their witness, I don't have any documents other than what they have sent me in POD, CCP 96 & CCP 98, there are some document I could use against them. Should I include a copy of subpoena and those documents in my CCP 96 response? Or, do I just use their documents against them in court?

Also, their response to CCP 96 has wrong case #, the first 2 credit card statements have the same dates but different account #s...anything I can do with those?

Thanks!

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Use their own things against them, if you don't send a ccp96, then you can't use anything else you may have, no biggie if you have nothing. You can object tho their evidence, and yes 20 days out try to serve the ccp98 declarant. 2 account numbers? Is it from the same original creditor? Like a statement? Or is it one from oc, and one from JDB? They tend to give their own account numbers

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I'm stressing! I have brain freeze! Not sure what to do now. I have to answer a CCP 96, don't know if I should subpoena a witness that works in Plaintiff's attorney's office - he submitted a CCP 98. HELP!Like I mentioned in another post, I'M in Ventura County, Calif, my case is assigned to Judge O'Neill, don't think he liked me much the 1st time I was in front of him.BV80Xenophon

Yes, you'll definitely subpoena that CCP 98 declarant. Looks like today marks the beginning of the 20-day window. Take care of this ASAP as you need time for the service to take place and to get the report. Service will likely fail, instruct the server to only deliver to the witness, make a few attempts that way, then you can instruct them to leave the subpoena at the location. The declarant likely gave you several addresses to subpoena him/her at - choose the nearest location and make sure it is within 150 miles of your courthouse. Use a sheriff if possible, next best is a process server.

Here is the subpoena form to use http://www.courts.ca.gov/documents/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.ca.gov/pls/portal/docs/PAGE/SDCOURT/GENERALINFORMATION/FORMS/CIVILFORMS/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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so their ccp 98 states that there is only one person that they intent to call to trial as a witness? yes subpoena that person, if the address they provided is within 150 miles form the court address.

affidavits are not admissible at trial but you must object to them, if you do not submitt an objection they become admissible.

you object to them by filing the following:

DECLARATION OF DEFENDANT IN SUPPORT OF DEFENDANT’S MOTION IN LIMINE TO PRECLUDE ADMISSION OF DECLARATION IN LIEU OF DIRECT TESTIMONY OF _________________. AND TO PRECLUDE ADMISSION OF EVIDENCE

DEFENDANT’S MOTION IN LIMINE TO PRECLUDE ADMISSION OF DECLARATION IN LIEU OF DIRECT TESTIMONY OF ______________. AND TO PRECLUDE ADMISSION OF EVIDENCE

REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANT’S MOTION IN LIMINE TO PRECLUDE ADMISSION OF DECLARATION IN LIEU OF DIRECT TESTIMONY OF _____________________. AND TO PRECLUDE ADMISSION OF EVIDENCE

look at this case and you will find examples of these: http://www.creditinfocenter.com/community/topic/317277-how-i-beat-midland-in-california/

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Correct. Except I think it is best to call it an "Objection to Declaration in Lieu of Testimony of ____(CCP 98).

Homeless posted an exemplar in post 428: http://www.creditinfocenter.com/community/topic/320243-going-to-trial-in-california/page-22

If you are concerned about responding to a CCP 96 that was served on you, he also posted an exemplar of a response in post 289 of the above thread. This should be used if you do not intend to call any witnesses of your own or submit any of your own documents. If you do plan to call a witness or use a document, you would list them.

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How do I object to the Affidavit? Also, To respond to their CCP 96, I'm going to subpoena their witness, I don't have any documents other than what they have sent me in POD, CCP 96 & CCP 98, there are some document I could use against them. Should I include a copy of subpoena and those documents in my CCP 96 response? Or, do I just use their documents against them in court? Also, their response to CCP 96 has wrong case #, the first 2 credit card statements have the same dates but different account #s...anything I can do with those?Thanks!

This recent case posted by calawyer should be of great interest to you: http://www.courts.ca.gov/opinions/documents/JAD14-11.PDF

I'm guessing the affidavit and bills of sale are attached to the CCP 98 Declaration? You attack those attachments first by objecting to the declaration itself, via subpoena to the declarant at the address provided, followed by filing an Objection to the CCP 98. Then, you should attack/object to each individual attachment in your Trial Brief - just in case.

Take a look at examples posted by other CA members. You have just enough time to get it right if you can cram a bit.

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@DaSurfer13

I told you that some CA members would reply. :-)

Along with the ruling that @string referenced, also read Target National Bank v. Rocha. While the address for the witness is the attorney's office, the witness must be at that address to personally receive a subpoena when that subpoena is delivered.

http://scholar.google.com/scholar_case?case=2317485842720780652&q=%22Target+National+Bank+v.+Rocha%22&hl=en&scisbd=2&as_sdt=4,5

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Use their own things against them, if you don't send a ccp96, then you can't use anything else you may have, no biggie if you have nothing. You can object tho their evidence, and yes 20 days out try to serve the ccp98 declarant. 2 account numbers? Is it from the same original creditor? Like a statement? Or is it one from oc, and one from JDB? They tend to give their own account numbers

 

So, I don't need to reply to CCP 96? I don't have any documents of my own, only what the JDB and their attorney has sent me. Do I reply to CCP 96 and attach their own documents, or don't need to reply to CCP 96?

The 2 different account #s are on statements from OC, both dated same, 8/13/2007. The statement with the different account # shows purchases & payments made but $0 balance & $0 due. The statement with alleged account# shows similar purchases & payments with $7924.56 balance & $203.66 due.

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http://www.creditinfocenter.com/community/topic/320243-going-to-trial-in-california/page-15#entry1251740

You can reply, just state you have no witnesses, and you have no documents. You will be able to use any docs they sent you, you do not attach them to your ccp96, The link I gave show you an example

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First off, Thank you all so much for your help & advice!!!! I need to straighten a few thing out.

They sent me a CCP 98, Decl of authorized agent for JDB in lieu of testimony, the only address given for this person is the attorney's office address, less than 60 miles from court. That is who I will subpoena.

I also received from them a CCP 96 response. They plan to call me as a witness. This also has the Affidavit of OC employee in South Dakota attached. I need to object to this? Object to statements OC employee sent?

Also in CCP 96 is application dated 1/27/06 and a history of statements, there is about 1 1/2 year gap between application and 1st 2 statements (both dated 9/6/07 with different account #s) in CCP 96, no beginning statement showing zero balance with alleged account#.

They also sent me a request CCP 96. I don't have any of my own evidence, documents...but what about witness I subpoena? Do I respond with name of witness?. Do I need not to respond to CCP 96?

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First off, Thank you all so much for your help & advice!!!! I need to straighten a few thing out.They sent me a CCP 98, Decl of authorized agent for JDB in lieu of testimony, the only address given for this person is the attorney's office address, less than 60 miles from court. That is who I will subpoena.

I also received from them a CCP 96 response. They plan to call me as a witness. This also has the Affidavit of OC employee in South Dakota attached. I need to object to this? Object to statements OC employee sent?Also in CCP 96 is application dated 1/27/06 and a history of statements, there is about 1 1/2 year gap between application and 1st 2 statements (both dated 9/6/07 with different account #s) in CCP 96, no beginning statement showing zero balance with alleged account#.They also sent me a request CCP 96. I don't have any of my own evidence, documents...but what about witness I subpoena? Do I respond with name of witness?. Do I need not to respond to CCP 96?

 

Correct. You subpoena the CCP 98 witness. Tell the process server that the witness won't be there. Make a couple of attempts and then leave it with anyone who will accept. Then, you want a declaration of diligence showing that the witness was not present.

You will object to the CCP 98 declaration citing Target Bank v. Rocha and CACH v. Rodgers (both cited above). These cases say that the trick of providing the lawyer's address for an out-of-state witness does not cut it under California law.

You will also object to the declaration of the OC. That declaration does not even attempt to comply with CCP 98. Declarations are not admissible at trial unless they are permitted by statute. Your case for that is Elkins v. Superior Court.

Read my post above where I explain about the CCP 96 response. You don't have to do one at all if you don't intend to call any witnesses or submit any documents. But there is a link to a response in Homeless's thread that you can use anyway if you want to tweak them a bit.

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Correct. You subpoena the CCP 98 witness. Tell the process server that the witness won't be there. Make a couple of attempts and then leave it with anyone who will accept. Then, you want a declaration of diligence showing that the witness was not present.

You will object to the CCP 98 declaration citing Target Bank v. Rocha and CACH v. Rodgers (both cited above). These cases say that the trick of providing the lawyer's address for an out-of-state witness does not cut it under California law.

You will also object to the declaration of the OC. That declaration does not even attempt to comply with CCP 98. Declarations are not admissible at trial unless they are permitted by statute. Your case for that is Elkins v. Superior Court.

Read my post above where I explain about the CCP 96 response. You don't have to do one at all if you don't intend to call any witnesses or submit any documents. But there is a link to a response in Homeless's thread that you can use anyway if you want to tweak them a bit.

 

I found out that even though the authorized agent of JDB is using attorney's office address for subpoena, the JDB is actually in Orange, CA, about 100 miles from court, less than 150 miles. Does this change my strategy?

Also, the Affidavit of the OC is in their CCP 96 response, and in the CCP 98. Sorry, I'm not to bright about these things.

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Correct. You subpoena the CCP 98 witness. Tell the process server that the witness won't be there. Make a couple of attempts and then leave it with anyone who will accept. Then, you want a declaration of diligence showing that the witness was not present.

You will object to the CCP 98 declaration citing Target Bank v. Rocha and CACH v. Rodgers (both cited above). These cases say that the trick of providing the lawyer's address for an out-of-state witness does not cut it under California law.

You will also object to the declaration of the OC. That declaration does not even attempt to comply with CCP 98. Declarations are not admissible at trial unless they are permitted by statute. Your case for that is Elkins v. Superior Court.

Read my post above where I explain about the CCP 96 response. You don't have to do one at all if you don't intend to call any witnesses or submit any documents. But there is a link to a response in Homeless's thread that you can use anyway if you want to tweak them a bit.

 

Do I need to file and have the subpoena stamped/signed by court before I have it served to witness? Or does the Decl of diligence get stamped/signed by court when filed by process server?

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Have the court clerk stamp the subpoena before it gets served.

As far as your response to the CCP 96 goes: (assuming you don't have your own witness or documents to submit) I would send them a very simple response with just the following statement: "Witnesses and exhibits will be used for impeachment purposes only" (I'm not sure if that's the same response in the Homeless thread or not).

Also; the due diligence declaration will not be stamped by the court and the process server does not file it. You will add the diligence declaration as an exhibit to your objection to their ccp 98 declaration (which you will then file with the court (and send the lawyer a copy).

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Have the court clerk stamp the subpoena before it gets served.

As far as your response to the CCP 96 goes: (assuming you don't have your own witness or documents to submit) I would send them a very simple response with just the following statement: "Witnesses and exhibits will be used for impeachment purposes only" (I'm not sure if that's the same response in the Homeless thread or not).

Also; the due diligence declaration will not be stamped by the court and the process server does not file it. You will add the diligence declaration as an exhibit to your objection to their ccp 98 declaration (which you will then file with the court (and send the lawyer a copy).

 

Okay, so, I couldn't wait any longer on this. After searching long and hard online & reading various reviews I found a recommended Process Server close to my house. They said I don't need to have subpoena stamped by court clerk, and they can file the due diligence with court and give me copies, if that is what I want. I hired them today. They were very helpful with all my questions, and it didn't cost a lot. 1st attempt is within 48 hours, 5 attempts total within a week for 1 price. A small charge to file with court. I gave instructions to attempt twice then leave subpoena with anyone who will accept at office address listed in CCP 98, and file the due diligence with the court.

Also mailed out a simple CCP 96 response by USPS CMRRR today. I listed the authorized agent for Plaintiff on CCP 98 as a witness, stated I reserve right to introduce evidence for impeachment purposes, and that I had no photos or other physical evidence to offer.

I feel somewhat relieved that is done. Now to work on Objections. Thanks for all the help everyone!

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Okay, so, I couldn't wait any longer on this. After searching long and hard online & reading various reviews I found a recommended Process Server close to my house. They said I don't need to have subpoena stamped by court clerk, and they can file the due diligence with court and give me copies, if that is what I want. I hired them today. They were very helpful with all my questions, and it didn't cost a lot. 1st attempt is within 48 hours, 5 attempts total within a week for 1 price. A small charge to file with court. I gave instructions to attempt twice then leave subpoena with anyone who will accept at office address listed in CCP 98, and file the due diligence with the court.

Also mailed out a simple CCP 96 response by USPS CMRRR today. I listed the authorized agent for Plaintiff on CCP 98 as a witness, stated I reserve right to introduce evidence for impeachment purposes, and that I had no photos or other physical evidence to offer.

I feel somewhat relieved that is done. Now to work on Objections. Thanks for all the help everyone!

You need the stamp and signature on the subpoena. You are not issuing the subpoena, the court is issuing the subpoena.

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Correct. You subpoena the CCP 98 witness. Tell the process server that the witness won't be there. Make a couple of attempts and then leave it with anyone who will accept. Then, you want a declaration of diligence showing that the witness was not present.

You will object to the CCP 98 declaration citing Target Bank v. Rocha and CACH v. Rodgers (both cited above). These cases say that the trick of providing the lawyer's address for an out-of-state witness does not cut it under California law.

You will also object to the declaration of the OC. That declaration does not even attempt to comply with CCP 98. Declarations are not admissible at trial unless they are permitted by statute. Your case for that is Elkins v. Superior Court.

Read my post above where I explain about the CCP 96 response. You don't have to do one at all if you don't intend to call any witnesses or submit any documents. But there is a link to a response in Homeless's thread that you can use anyway if you want to tweak them a bit.

 

@calawyer

So, I object to CCP 98 declaration of authorized agent of JDB and all Exhibits?

Exhibit A (3 Bills of Sale with no reference to account #),

Exhibit B (copy of OC signed application with no reference to account #),

Exhibit C (Affidavit of employee of OC and copies of OC statements),

Exhibit D (copy of cardmember agreement), and

Exhibit E (copies of electronic payment).

And I object to CCP 98 citing Target v. Rocha, because declarant is using attorney's address even though there is no reference to declarant being out of state?

Do I still use Elkins v. Superior Court for Exhibit C?

How exactly should I word all this? Thanks!

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@calawyer

So, I object to CCP 98 declaration of authorized agent of JDB and all Exhibits?

Exhibit A (3 Bills of Sale with no reference to account #),

Exhibit B (copy of OC signed application with no reference to account #),

Exhibit C (Affidavit of employee of OC and copies of OC statements),

Exhibit D (copy of cardmember agreement), and

Exhibit E (copies of electronic payment).

And I object to CCP 98 citing Target v. Rocha, because declarant is using attorney's address even though there is no reference to declarant being out of state?

Do I still use Elkins v. Superior Court for Exhibit C?

How exactly should I word all this? Thanks!

 

Yes. The first argument is that the entire declaration and all exhibits should be excluded based upon Target Bank and CACH v. Rodgers. If you want, you can stop there.

Second argument is that, even if Target did not apply, the witness has no personal knowledge. Therefore, the declaration and its exhibits should be excluded.

Third argument is that Exhibit C is inadmissible pursuant to Elkins.

There is an exemplar (long and short versions) in Homelessincalifornia's thread.

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So I have an update on my case. Interesting enough, the attorney representing plaintiff called me today asking if I'd be willing to settle out of court. I said "Ummm, no, that's okay." The attorney responded "so you want the judge to decide in court?" I said yes, and he said he would make a note of it.

 

Later, the process server I hired said her server guy called in and said the attorney's address, where supposedly the CCP 98 declarant stated he would be available, turns out to be a mail box at a UPS store! What the heck is going on?!

 

Any new strategies?

 

I'm am waiting for the subpoena's Declaration of due diligence to be filed and copy emailed to me, so I can add it to my Objections, or should I not wait and just file objections?

 

Sorry, I need a lot of hand-holding. Thanks!

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It's a pretty common for them to attempt to settle on the eve of trial. They don't want to risk losing in court and often don't even want to go to trial - so they ask . Don't be surprised if they ask you again in the hallway the morning of trial.

 

No new strategy, keep plugging away.

 

Not the first time a CCP 98 declaration listed a UPS store/mail service as the address. Remember the CCP 98 declaration is a bluff to begin with, 99% of the time they have no intention of producing that witness. Make sure the process server points this out on the Declaration of Diligence, and make sure you call the JDB out on this in your Trial Brief and Objection. It's a fraud on the court & mockery of CCP 98 for them to supply you an address that is a mail box. Clearly they never intended for you to able to serve the declarant.

 

File your brief and objections according to the deadline in your local rules. If that gives you time to include the Declaration of Diligence, then do so. If not, then maybe describe what the Declaration of Diligence will say, file what you need to, and take the declaration with you to court.

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