xmasbaby420

CCP98 no address provided

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Hi Everyone!

 

Been on this forum for about  a year now, soaking up a lot of useful information and tips from very helpful forum members for the 2 lawsuits im currently involved in.  Thank you to all those who help and share.

 

Like everyone else, I got sued by JDB in California.  There are 2 separate lawsuits that are pretty much identical except for the amount and OC.

 

I'm about 3 weeks from trial.  There was no discovery on either side.  At the 45th day mark, I sent my CCP96.  About a week after that I received from JDB their CCP98 declaration, CCP96, Trial Brief, Witness and Exhibit Lists.

 

I am about to get a subpoena issued to serve the CCP98 declarants, however, in one of the cases, JDB seems to have inadvertently left out the address for service.  They have a paragraph included which states: "Pursuant to CCP98, this affiant is available for service of process at: --- for a reasonable period of time, during the 20 days immediately prior to trial. If service of process cannot be effectuated at the aforementioned address, I authorize Defendant to contact Plaintiff's attorney for purposes of effectuating service on my behalf."

 

It appears someone just forgot to cut and paste the correct address in their standard declaration.

 

I need some advice and thoughts as to how I should handle this. 

 

Do I send a meet and confer to Plaintiff's attorney? 

Or should I just object on the grounds that they did not provide an address? 

Or should I proceed to have that affiant served at the same location as in my other lawsuit since the JDB and attorney is the same in both of my cases?

 

Any advice is greatly appreciated!

 

 

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I would send a M&C letter telling them to give you the address as well as filing an objection to the ccp98 declaration.

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Thank you Anon for your advice.

 

I will send a M&C letter tomorrow. 

 

But I am a little worried about the timing of all this.  JDB is PRA and they are using in-house counsel for my cases.  Their address of record for both cases is in Virginia. So it does take at least a week to get from CA to VA or vice versa. When i sent my CCP96 CMRRR, it took exactly a week for them to receive it.  However, I think their in-house counsel might work out of San Diego as he has a San Diego address listed on the California State Bar website.

 

I will fax & mail my M&C to them so they should get it immediately.  However, I’m afraid that I won’t get their response (providing an address) in time to actually serve the subpoena.  I don’t have a fax machine to receive faxes. And I’m using the San Diego Sheriff since I have a fee waiver, and I have read on the forums that sometimes they won’t serve if it gets too close to the trial date.

 

Is the purpose of sending a M&C to actually get an address and serve the subpoena?  Or is it just to put on record that I tried to M&C before objecting to their CCP98?

 

Also, when asking for the address for process service, should I mention that I will be objecting to their declaration as well?

 

I hope all this makes sense.

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I would use the address they filed with the court on the complaint. You could call them as well, but speak carefully and to the lawyer only.

I would also tell them you are going to object to the ccp98 as it is hearsay and they did not comply with the code since they didn't give you an address within 150 miles of court.

Also the witness must be personal served and they cannot appoint someone else to accept service on their behalf.

You probably won't have time to subpoena because they did not follow the code which deprived you of due process as you can't subpoena which is going to be part of the objection you file.

The meet and confer letter is just for the record showing you went beyond the call as good faith attempt. Also just in case a judge ask why you didn't confer over the matter.

Your post makes perfect sense.

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Appreciate all of your advice Anon Amos.  Thank you for taking the time to respond.

 

I went to the court today and got a subpoena issued for both cases.  Sent one subpoena to the San Diego Sheriff to serve the CCP98 affiant in the 1st case (since they did provide an address in SD.)  Just a fyi for anyone needing to serve someone in SD: SD Sheriff’s will serve a civil subpoena at no charge if you have a fee waiver. 

 

And I’m holding on to the 2nd subpoena until JDB provides an address for its CCP98 declarant in my 2nd case. I guess if they’re able to get an address to me in time, which I doubt, I’ll attempt service of the subpoena then.

 

I’ll be faxing my m&c tomorrow re their deficient CCP98, although I probably should have sent it sooner.  Here's a draft for comments, suggestions, or just in case someone’s looking for a rough sample.

 

Me

My address

 

 

Date

 

 

Via Fax and Mail

(xxx) xxx-xxxx

 

JDB attorney

JDB address

Re:          JDB v. me

               LASC Case No. xxxxxxxx

Dear JDB attorney,

 

I am in receipt of a Declaration in Lieu of Live Testimony Pursuant to CCP§98 (“Declaration”) in connection with the above-referenced case.

 

The purpose of this letter is to meet and confer regarding the Declaration. 

 

The Declaration fails to provide a current address for the declarant to be personally served per CCP§98(a). It is requested that you provide an address for the declarant.

 

Please be further advised that I will object to the Declaration as it is hearsay and does not comply with CCP§98(a), in that the declarant has not provided an address within 150 miles of court, at least 30 days prior to trial.

 

Sincerely,

 

me

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I don't know if this helps in any way shape or form, but when I filed my CCP96, I never got a response. I was 20 days out, and didn't know what to do, so I filed a judicial notice, indicating the address of the person who signed the Bill Of Sale and Assignment that I got in Discovery, mentioning that the address was outside of the 150 mile range. I figured at the very least, I could bring it up at trial, since I didn't use a subpoena.

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Thank you yragcom1 for that info.  

 

My situation actually dealt with the JDB not providing an address for service in their ccp98 declaration.  I sent a m&c but have not heard back from them at all.  So I plan to object to the declaration on that issue as well as many others at trial (in about a week).

 

I do have questions re ccp96 as well though.  As I mentioned above, I timely sent my ccp96 request and their response was due Feb. 25.  About a week and half after i sent my ccp96 request I did receive a Witness List, Exhibit List, Notice to Attend Trial, their ccp96, and their ccp98 declaration

 

Are those documents they produced considered a proper response to my ccp96 request? Or should there be a separate response, in addition to witness/exhibit lists, etc., specific to my ccp96 request?

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Also, I noticed on the court docket that JDB hasn't filed their ccp98 declaration in either of my cases.  They did file their trial brief, witness/exhibit lists, notice to attend trial, but not their ccp98 declaration.  Is this normal procedure?  Will court accept/file my objection/mil to the ccp98 declaration if JDB hasn't even filed their ccp98 declaration with court?

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A CCP98 was filed in mine, but from what I can tell it may not be necessary to file it. The language of CCP 98 itself only says that a copy needs to be served on the plaintiff - doesn't say anything about a filing requirement.

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Thanks RyanEx. 

 

I guess they can submit it at trial w/o having to file it beforehand?  So I guess I'll do the same and just submit my written objections at trial. 

 

On a different note, do you happen to know whether a witness/evidence list from JDB constitutes a valid response to my ccp96?  Or do they have to respond specifically to my ccp96 in addition to their witness/exhibit lists?

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Just a fyi to fellow members: PRA now appears to have employees in San Diego who they are using as "custodians of record". So service of a subpoena is being made without any problems.

 

In my 1st case, the SD Sheriff was able to personally serve the ccp98 declarant with my subpoena a few days ago.  So now I have to prepare as if he is going to show up at trial.

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Thanks RyanEx. 

 

I guess they can submit it at trial w/o having to file it beforehand?  So I guess I'll do the same and just submit my written objections at trial. 

 

On a different note, do you happen to know whether a witness/evidence list from JDB constitutes a valid response to my ccp96?  Or do they have to respond specifically to my ccp96 in addition to their witness/exhibit lists?

 

So long as they serve you at least 30 days before trial, I believe they can offer the CCP 98 at trial.

 

What CCP 96 says is:

 

(a) Any party may serve on any other party a request in

substantially the following form:

  TO: ____________________________________________ ,

  attorney for ____________________________________:

   You are requested to serve on the undersigned, within 20 days, a

statement of: the names and addresses of witnesses (OTHER THAN A

PARTY WHO IS AN INDIVIDUAL) you intend to call at trial; a

description of physical evidence you intend to offer; and a

description and copies of documentary evidence you intend to offer

or, if the documents are not available to you, a description of them.

Witnesses and evidence that will be used only for impeachment need

not be included. YOU WILL NOT BE PERMITTED TO CALL ANY WITNESS, OR

INTRODUCE ANY EVIDENCE, NOT INCLUDED IN THE STATEMENT SERVED IN

RESPONSE TO THIS REQUEST, EXCEPT AS OTHERWISE PROVIDED BY LAW.

   (B) The request shall be served no more than 45 days or less than

30 days prior to the date first set for trial, unless otherwise

ordered.

   © A statement responding to the request shall be served within

20 days from the service of the request.

   (d) No additional, amended or late statement is permitted except

by written stipulation or unless ordered for good cause on noticed

motion.

   (e) No request or statement served under this section shall be

filed, unless otherwise ordered.

   (f) The clerk shall furnish forms for requests under this rule.

   (g) The time for performing acts required under this section shall

be computed as provided by law, including Section 1013.

 

 

The Disc-015 form many of us use says the same thing.

When I received the CCP 96 response in my case, it came on pleading paper and was titled (more or less) as "Plaintiffs response to Defedant's request for evidence and witnesses" - so there was no doubt it was in response to my request. Are you saying there was no such reference in the evidence and witness list they sent you? When did you get it (would it fall into the window of responding to your CCP 96 request)?

I honestly don't know if a evidence and witness list HAS TO state that it is a response to your request - maybe others know the answer to that.

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The Disc-015 form many of us use says the same thing.

When I received the CCP 96 response in my case, it came on pleading paper and was titled (more or less) as "Plaintiffs response to Defedant's request for evidence and witnesses" - so there was no doubt it was in response to my request. Are you saying there was no such reference in the evidence and witness list they sent you? When did you get it (would it fall into the window of responding to your CCP 96 request)?

I honestly don't know if a evidence and witness list HAS TO state that it is a response to your request - maybe others know the answer to that.

 

I was expecting a response like the one you received.  However, it was due February 25th and I still haven't received anything.

 

About a week and half after I served my ccp96, I received from them: trial brief, ccp98 declaration, notice to attend trial, memo of cost, proposed judgment, ccp96 request, witness list and exhibit list. The date of receipt did fall in the window of properly responding to my ccp96.  But, the witness and exhibit lists do not reference my ccp96 request in any way.

 

The code does say "a statement responding to the request shall be served..."  So I'm assuming what they already sent doesn't comply with the code.

 

Like you said, maybe someone else will know for sure.

 

Just had another thought.  Even if they don't respond to my ccp96, since they properly served their ccp98 declaration with all the exhibits attached, couldn't they just offer that at trial?  I will, of course, object to the declaration.  But what's the point of responding to a ccp96 request, if they're planning on using their ccp98 declaration and attached exhibits at trial?  (sorry if that sounds a little confusing, i'm a little confused myself)

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I was expecting a response like the one you received.  However, it was due February 25th and I still haven't received anything.

Make sure you count the 5 additional days for mailing service.

About a week and half after I served my ccp96, I received from them: trial brief, ccp98 declaration, notice to attend trial, memo of cost, proposed judgment, ccp96 request, witness list and exhibit list. The date of receipt did fall in the window of properly responding to my ccp96.

It says you received a "witness list and exhibit list" here. That is what you are requesting with a ccp 96. What did the witness and exhibit list say? They are supposed to list the witnesses by name and address to comply with ccp 96.

But, the witness and exhibit lists do not reference my ccp96 request in any way.

I don't think you can do anything with this fact. They should say it's their response to your request, but don't really have to. They responded and that's what's required.

The code does say "a statement responding to the request shall be served..."  So I'm assuming what they already sent doesn't comply with the code.

"served" is simply placing it in the mail.

.  But what's the point of responding to a ccp96 request, if they're planning on using their ccp98 declaration and attached exhibits at trial?  (sorry if that sounds a little confusing, i'm a little confused myself)

ccp 96 and 98 are 2 different things. Under ccp 98 they can get a hearsay declaration into evidence (if unopposed and no subpoena is served), but they can't get all the exhibits entered into evidence simply because they attached it to a declaration (unless unopposed), so the evidence still needs to be listed on the ccp 96 response (however they don't have to list ccp 98 on the ccp 96 response). Also, if you were to object to the ccp 98 and they didn't respond to the ccp 96 then they would have nothing at trial, so they need to respond to the ccp 96 as well.

 

It can be very confusing, but you are doing well with it.

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Did plaintiff ever respond to your letter about the CCP 98 declaration that did not have an address?  If not, you can start working on an objection to the declaration.  It will be very simple.  No address was provided.  You wrote and asked for one.  Plaintiff did not respond.  THe declaration should not be admitted at trial.  If you want to , you can cite Target v. Rocha and CACH v. Rodgers and say that Courts even reject CCP 98 declarations that false addresses.  It goes without saying that providing no address at all renders the declaration inadmissible.

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Make sure you count the 5 additional days for mailing service.

 

I actually added 10 additional days since opposing counsel's address of record is in Virginia.  CCP96 was served Jan. 26th +20days +10days = Feb. 25th.  I know they just need to have served it by Feb. 25, but how long after that am I supposed to wait for a response?

 

It says you received a "witness list and exhibit list" here. That is what you are requesting with a ccp 96. What did the witness and exhibit list say? They are supposed to list the witnesses by name and address to comply with ccp 96.

 

The  witness list names: 1) CCP98 declarant, 2) me, and 3) that they reserve the right to call any additional witness...  No address for CCP98 declarant provided though.

The exhibit list names the 4 documents attached to their CCP98 as exhibits.

 

I don't think you can do anything with this fact. They should say it's their response to your request, but don't really have to. They responded and that's what's required.

"served" is simply placing it in the mail.

 

:(

 

ccp 96 and 98 are 2 different things. Under ccp 98 they can get a hearsay declaration into evidence (if unopposed and no subpoena is served), but they can't get all the exhibits entered into evidence simply because they attached it to a declaration (unless unopposed), so the evidence still needs to be listed on the ccp 96 response (however they don't have to list ccp 98 on the ccp 96 response). Also, if you were to object to the ccp 98 and they didn't respond to the ccp 96 then they would have nothing at trial, so they need to respond to the ccp 96 as well.

 

It can be very confusing, but you are doing well with it.

 

Thank you so much Anon Amos.  Thanks to people like you, people like me are a lot less confused.

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Did plaintiff ever respond to your letter about the CCP 98 declaration that did not have an address?  If not, you can start working on an objection to the declaration.  It will be very simple.  No address was provided.  You wrote and asked for one.  Plaintiff did not respond.  THe declaration should not be admitted at trial.  If you want to , you can cite Target v. Rocha and CACH v. Rodgers and say that Courts even reject CCP 98 declarations that false addresses.  It goes without saying that providing no address at all renders the declaration inadmissible.

 

They haven't responded to my letter.  I will definitely prepare an objection to the declaration.  Thank you for your tips on that.  Do I also object to the exhibits attached to that declaration in the same pleading?  Or do I prepare a separate objection for the exhibits?

 

Also, do you have any thoughts as to whether a witness and exhibit list provided by plaintiff constitutes a valid response to my ccp96?  All they did was list names (no addresses) and exhibits (the ones attached to their ccp98) with no reference to my ccp96.

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They haven't responded to my letter.  I will definitely prepare an objection to the declaration.  Thank you for your tips on that.  Do I also object to the exhibits attached to that declaration in the same pleading?  Or do I prepare a separate objection for the exhibits?

 

You are asking that the entire declaration be deemed inadmissible.  That includes the exhibits attached to the declaration.  No declaration=no exhibits. 

 

Also, do you have any thoughts as to whether a witness and exhibit list provided by plaintiff constitutes a valid response to my ccp96?  All they did was list names (no addresses) and exhibits (the ones attached to their ccp98) with no reference to my ccp96.

 

It is a valid response.  You asked for a list of witnesses and Exhibits that plaintiff intends to use at trial.  It would be better form to a responding party to state that the list is in response to your CCP 96 request, but  CCP 96 just requires a "statement responding to the request" and it sounds like you got one.

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Thank you calawyer for your thoughts and advice.  Your words are truly invaluable to me and many others on this site.

 

Unfortunately, I did include the "no response to my ccp96" issue in my trial briefs I filed today at court.  Hopefully, that won't be a problem.

 

Now on to my objections to their ccp98 declarations.

 

In my 1st case, they did provide an address and the declarant was served last week.  I'm assuming I still need to object based on hearsay, lack of foundation, lack of personal knowledge, etc., and also attack all the exhibits.

 

In my 2nd case, where they did NOT provide an address, I will attack the fact that they simply didn't comply with ccp98.

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They cannot reserve the right to call additional witnesses they didn't disclose in the ccp 96 response. If they do call someone not identified then you object to that.

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In my 1st case, they did provide an address and the declarant was served last week.  I'm assuming I still need to object based on hearsay, lack of foundation, lack of personal knowledge, etc., and also attack all the exhibits.

 

Since you served the witness, he/she must show up in court.  You will not have to challenge the declaration at all.  The witness will have to provide testimony on the stand.

 

In my 2nd case, where they did NOT provide an address, I will attack the fact that they simply didn't comply with ccp98.

 

Correct.

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They cannot reserve the right to call additional witnesses they didn't disclose in the ccp 96 response. If they do call someone not identified then you object to that.

 

This useful piece of information is definitely going in my trial notes.  Thank you Anon Amos.

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In my 1st case, they did provide an address and the declarant was served last week.  I'm assuming I still need to object based on hearsay, lack of foundation, lack of personal knowledge, etc., and also attack all the exhibits.

 

Since you served the witness, he/she must show up in court.  You will not have to challenge the declaration at all.  The witness will have to provide testimony on the stand.

 

In my 2nd case, where they did NOT provide an address, I will attack the fact that they simply didn't comply with ccp98.

 

Correct.

 

 

Thanks calawyer.

 

Re 1st case:  I will have to prepare to cross-examine the witness... would I just object to the exhibits during trial?  so there's no need for a written objection to the exhibits they listed in their exhibit list?

 

What would happen IF the subpoenaed witness doesn't show?  Will they have to dismiss?  Is it at all possible for them to use their ccp98 declaration then?

 

Re 2nd case: I wonder how JDB plans to proceed if they know they didn't comply with ccp98.  Maybe they'll just produce the witness at trial.  In which case, I should prepare for that as well.

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In my 1st case, they did provide an address and the declarant was served last week.  I'm assuming I still need to object based on hearsay, lack of foundation, lack of personal knowledge, etc., and also attack all the exhibits.

 

In my 2nd case, where they did NOT provide an address, I will attack the fact that they simply didn't comply with ccp98.

 

just make sure you object to the declaration and all the attachments (bill of sales, affidavits, affidavits of sale, etc.)

 

don't for get your supporting caselaws:

 

affidavits not admissible during trail:

 

.  Without the support of live testimony, [Name]’s affidavit is hearsay and inadmissible at trial:

‘Affidavits (a term including declarations made under oath), as explained, constitute hearsay and are inadmissible at trial in the absence of stipulation or lack of objection, or as otherwise provided by law.’

 

Elkins v. Superior Court, 163 P.3d 160 (Cal. 2007)

 

First hand knowledge:

 

Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if:

 

 

a) The writing was made in the regular course of a business;

B) The writing was made at or near the time of the act, condition, or event;

c) The custodian or other qualified witness testifies to its identity and the mode of its preparation;

d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.

To qualify under the § 1271's "business records" exception to the hearsay rule, subsection © requires the offering party present a qualified witness who can testify from first-hand knowledge regarding the origin or mode of preparation of the document offered. 

 

_____________

 

People v Fowzer, 127 Cal. App. 2d 742, 747 ( Cal. App. 2d Dist. 1954). Because of this, the relevant standard for determining a person's ability to authenticate business records is that of the "qualified witness."  The California Court of Appeals has adopted the McCormick view on the requirements of foundational witnesses:

 

The chief foundation of the special reliability of business records is the requirement that they must be based upon the first-hand observation of someone whose job it is to know the facts recorded. But if the evidence in the particular case discloses that the record was not based upon the report of an informant having the business duty to observe and report, then the record is not admissible under this exception, to show the truth of the matter reported to the recorder.

 

MacLean v City and County of San Francisco, 311 P.2d 158, 164 ( Cal. App. 1st Dist. 1957) (citing

McCormick on Evidence, p. 602, § 286) (emphasis added). This language was also cited by the Law Revision Commission's comment to Evidence Code § 1271.

 

To allow the admission of business records, the statue requires that the foundational witness presented by the offering party be someone who: (a) has personal knowledge of either the facts in the record or the record- keeping system; and (B) has a business duty to observe and report the facts recorded or received the recorded facts from someone with a business duty to observe and report those facts.

 

the declarations of _____________ (Affidavit of sale) do not even attempt to comply with Code of Civil Proc § 98. No address for service of a subpoena is given. ____________ does not promise to be available for service of a subpoena.  ____________ is not within 150 miles of the place of trial.

 

The Affidavit of Sale by ____________ do not contain the language, “under penalty of perjury in the State of California”.  As such, they do not conform to CCP § 2015.5.

 

 

 

_________

 

Although _________ might have the Bills of Sale in its file, this only qualifies __________ to testify to their identity as records currently in the custody of _________, not their mode of preparation. (California Stell Bldgs., Inc. v. Transport Indem. Co. (1966) 242 Cal.App.2d 749, 759 (the recipient of a bill may vouch for its identity, but cannot vouch for its mode of preparation); People v. Khaled (2010) 186 Cal.App.4th Supp. 1, 8 (foundation for

business records must be laid by a custodian or a witness with firsthand knowledge of the business’ recordkeeping procedures).)

 

_________

 

 

Under Cal. Evid. Code § 1271(d), the sources of information and method and time of preparation must be such as to indicate the trustworthiness of the business record. When an agent of one company seeks to introduce records of another company, the declarant must provide information about the source or how the documents were prepared. (Herrera, et al. v. Deutsche Bank National Trust Co., 196 Cal.App.4th, 1366, 1377.)

 

_________

 

Authentication of a writing is required before it will be admitted into evidence. (Cal. Evid. Code § 1401.) A writing may be authenticated by anyone who saw the writing made or executed. (Cal. Evid. Code § 1413.)

 

_________

 

Bill of sale and affidavits prepared for the sake of litigation.

 

As discussed above, the timing of the preparation of the Bills of Sale is questionable (at best). It suggests the documents were prepared for litigation, and were likely bought by _________ from the alleged Original Creditor (or third party) in preparation for litigation, rather than produced as part of the regular course of business of the alleged Original Creditor. Records prepared in anticipation of litigation rather than in the normal course of business are not admissible under the business records exception to the hearsay rule. (Gee v. Timineri (1967) 248 Cal.App.2d 139, 148.) 

 

The California Supreme Court recently held that declarations such as those of __________________ in the Bills of Sale, are not admissible at trial. Elkins v. Superior Court (2007) 41 Cal 4th 1337. As the Court stated in Elkins: The rule and order that were applied in the present case called for the admission of declarations in lieu of direct testimony at trial. It is well established, however, that declarations constitute hearsay and are inadmissible at trial, subject to specific statutory exceptions, unless the parties stipulate to the admission of the declarations or fail to enter a hearsay objection. ID at 1355.

 

the declarations of _____________ (the Bills of Sale) do not even attempt to comply with Code of Civil Proc § 98. No address for service of a subpoena is given. ____________ does not promise to be available for service of a subpoena.  ____________ is not within 150 miles of the place of trial.

 

The Bills of Sale by ____________ do not contain the language, “under penalty of perjury in the State of California”.  As such, they do not conform to CCP § 2015.5.

 

 

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Thanks calawyer.

 

Re 1st case:  I will have to prepare to cross-examine the witness... would I just object to the exhibits during trial?  so there's no need for a written objection to the exhibits they listed in their exhibit list?

 

There is a list of questions on Homelessincalifornia's thread.

 

What would happen IF the subpoenaed witness doesn't show?  Will they have to dismiss?  Is it at all possible for them to use their ccp98 declaration then?

 

If the witness does not show up, you should remind the Court that the witness was served with a subpoena.  That is not a request.  It is an order of the Court punishable by contempt.  You are all dressed up in your Sunday best and have taken a day off from work [true?] to attend trial.  Plaintiff filed this case and should be ready to go forward.  If the Court does not wish to punish the witness for disobeying the subpoena, it should dismiss the case as plaintiff is not ready to proceed.  Under NO circumstances should the declaration be admitted.  Declarations are not admissible at trial.

 

And there is no way that plaintiff can win without a witness.  Even if you got on the stand and admitted that it was your account and you defaulted, you know absolutely nothing about any assignment.  Without a proper witness, plaintiff cannot prove that it owns the account in question and has standing to sue.

 

Re 2nd case: I wonder how JDB plans to proceed if they know they didn't comply with ccp98.  Maybe they'll just produce the witness at trial.  In which case, I should prepare for that as well.

 

I agree.

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