Sevanski

Strategic differences in dealing with OC rather than JDB?

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You are probably well aware of this but affidavits are inadmissible at trial and the case to cite is Elkins v Superior Court. There's a lot of other case law cited in Elkins as well.

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Just as a follow up... My process server just called me and told me that when he tried to deliver the trial subpoena to Linda Salas at the law firm in Los Angeles, they tried to accept it on her behalf. I instructed him not to, because he needed to serve her personally. The guy also told her that "she does work here, she just won't come out". Hahaha. He was very insistent that the process server could leave it "in care of" Linda Salas, but like I mentioned, that was a no go. Seems like things are headed in the right direction thanks to all your help!

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have the process server attempt two more times and on the last time, leave it with someone who accept it on her behalf.

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You're suggesting I SHOULD leave it with someone? That's interesting... then if she doesn't show up, request sanctions against Linda Salas? 

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ANOTHER UPDATE. Just received an email from opposing counsel telling me that they are requesting their client provide a live witness. It reads something like the following. This is an hour after we tried to serve their witness listed on the CCP 98 declaration. 

 

We will be requesting that my client provide a live witness to testify at the trial scheduled on August 14, 2015.  Prior to my client making the appropriate travel arrangements and in an effort to minimize costs on both sides, I would like to resolve this matter   At your earliest convenience, please provide settlement offer and hardship and I will forward to my client for review and consideration. 

 

What do you guys think? My uncle literally has zero cash, so they can throw good money after bad if they want. I don't want to be discourteous by being non-responsive, but I really don't have much to offer them other than a smile and a thumbs up. 

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@Sevanski see @calawyer's post-

 

The witness will not be there.  You should tell the process server to make three attempts to personally serve the witness and, when personal service can't be affected, they should leave it with whoever will accept. Then you will file an objection to the declaration based upon two recent cases:  Target v Rocha and CACH v Rodgers.  Search my posts for subpoena and Target and you will find lots of information.

 

If you did not receive a Declaration, then plaintiff intends to bring a live witness or is at least bluffing that it will bring a witness.  In that case, you should prepare to cross examine the witness.  There is a long list of questions in Homelessincalifornia's thread.  As I recall, he was sued by a debt buyer, and it least appears that you are being sued by the original creditor, so you will need to modify the questions to your case.

http://www.creditinfocenter.com/community/topic/325864-received-ccp-96-from-credit-card-companys-attorney-help-what-next/#entry1322213

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Prior to my client making the appropriate travel arrangements and in an effort to minimize costs on both sides

Minimizing costs? Isn't that the whole idea behind California's 150 mile the witness must be there rule? How would it be the defendant's problem?

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@Sevanski

 

If a witness doesn't show up at trial, you would object to their affidavit and their evidence would be inadmissible because there's no live witness to testify.  But I think you have to show that the witness was served or that you attempted to serve her.   See post #31.

 

It is well established, however, that declarations constitute hearsay and are inadmissible at trial, subject to specific statutory exceptions. Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1354 [63 Cal.Rptr.3d 483, 163 P.3d 160.

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Well it can't be any live witness, it has to be the one they named. :)  

You don't have to leave the subpoena with anyone, the 2 cases cited say personal service.  They recommend you do leave it on the 3rd attempt as a good faith effort.  That is all it is.  Since they know you tried to serve her, it really doesnt matter, she will either e there, or she wont.  

You could say Thank you for the kind offer of settlement.  Unfortunately my client has no assets, and no cash.  If you would like to discuss a mutual walk away, we are open. ;)  Then just prepare to impeach the witness.  What's the worse that can happen right?

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unfortunately for them the only witness they can provide, if you object, is the one you subpoena ccp98, and those named on ccp96. sounds like they named the same person on both.

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They did name this particular witness on the CCP 96 response. She is also the same witness on the CCP 98 declaration. I'm calling bluff on their part. even though it's a large case for limited civil, 24k+, I'm still not convinced that they will spend the thousands it will take to fly someone over from the east coast to prosecute a case against an insolvent defendant. And if they do, their loss. 

 

With all the help I'm getting from you guys, I think I want to just try this case - for better or worse. Seems like an interesting area of the law where a lot of people need help.

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What do you guys think? My uncle literally has zero cash, so they can throw good money after bad if they want. I don't want to be discourteous by being non-responsive, but I really don't have much to offer them other than a smile and a thumbs up.

 

The case is about economics. If they get  a sense of your uncle's financial situation on top of the fact that he is represented; it may be enough for them to cut their losses, especially if he doesn't own a home or property.

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is the affidavit ccp98 signed under "penalty of perjury under the laws of the state of California? if not it fails to comply with Code of Civil Procedure 2015.5

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@sadinca that is one more nail in the ccp98 coffin, but it doesn't matter since it won't be admitted anyway. . If she was not there to accept service, doesn't show up in court to say personally what she declared, the affidavit is out anyway.

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Welcome.
 
I would have the process server continue to try to personally serve the witness.  3 attempts then leave it with whoever will accept on the 3rd attempt. 
 
You are in a good place.  "Trying to get a live witness" sounds like par for the course to me.  As you know, a subpoena is not a polite request.  It is an order of the court.  And your client did everything possible to secure the personal attendance of LINDA SALAS-- not just any old witness.  You want Salas because she filed a declaration and you want to impeach her with it (if nothing else, the sworn statement that she could be served at a certain address 20 days before trial). 
 
Am Ex will likely do one of two things.  It will either bring another witness or it will ask for a continuance.  If it brings another witness, you should scream bloody murder.  Am Ex filed this case.  THey submitted a sworn declaration saying that Salas could be served.  THey gave you a CCP 96 response naming Salas as the only witness.  Now they want to put some other witness on the stand????  WTF????  CCP 96 says no.
 
If they ask for a continuance, arm yourself with CRC 3.1332: http://www.courts.ca.gov/cms/rules/index.cfm?title=three&linkid=rule3_1332  Print it out to give the judge.  Judges don't know this rule.  No one--other than a debt collector--is lame enough to show up on the day of trial and ask for a continuance.  Look at the language.  It is mandatory.

 

 

A continuance may only be granted upon WRITTEN motion,  Supported by a declaration.  Showing good cause.  Like death of a witness.  Or illness.  "Just didn't feel like it" does not cut the mustard.

 

If Am Ex is really desperate, and has no witness, it may try to proceed with just your uncle.  I would object.  I would tell the court that you have a serious question whether Am EX owns the account or whether it has assigned the account for collection to one of the zillion junk debt buyers that regularly appear in this Court.  Am Ex should be required to establish that it owns the account before any other subsidiary evidence about how much may be owed, etc.  Uncle has absolutely no knowledge as to that issue.  It would be a complete waste of the Court's time to hear evidence about incurring any debt, and any amount claimed to be owing, if Am Ex can't establish first that it actually owns the debt in question.

 

If Salas shows up, hit her hard with the statement about availability for service.  Set it up by establishing that she is a litigation specialist.  She signs tons of declarations and interfaces with local lawyers.  She knows the rules.  She knows that service means personal service.  She has never laid eyes on that lawyer's office.  She lied.

 

The request to resolve this matter is telling.  If you have that conversation (personally, I would wait until the day of trial after you ask whether Salas is present), offer to waive costs.

 

Good luck.
 

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Also, check out H*8spleadingpaper's trial brief and objection.  It is good:http://www.creditinfocenter.com/community/topic/326248-portfolio-recovery-hunt-henriques-new/page-6#entry1327431

 

@Anon Amos Thanks for the head up and I've already save this thread. @calawyer I'm still learning and many many thanks for continue support.

Good luck @Sevanski you are in a good hand. 

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Personally, if it went to trial I don't think I would have your uncle be there.

Sounds like a good strategy, unless a notice to appear has been served.

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Sounds like a good strategy, unless a notice to appear has been served.

I don't believe he would have to appear or that this applies because he is being represented by an attorney.

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Notice to appear requires a party to be present if timely served.

I was unaware of that. That's very unfortunate. You would think after retaining an attorney you could go to work instead of trial.

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In my state, a notice to appear is sent to a party to the action whereas a subpoena is sent to a non-party.   One of the reasons for the notice to appear is to ensure a party's attendance in the event the other party wants to question him.

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