Sevanski

Strategic differences in dealing with OC rather than JDB?

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I like to send a letter pointing out the deficiency and telling them that you will object.  It results in a catch 22 for them.  If they do nothing (most frequent approach), you can tell the judge that you wrote a letter and plaintiff did not supplement its response.  If they do try to supplement, you can point to the language in the statute that says no supplemental response is allowed!

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At this point, I'm posting updates just so the next person, perhaps 8 months or 8 years from now can have answers to all these questions... 

 

I sent a meet and confer email to opposing counsel informing him that I planned on objecting to the introduction of any witnesses based on the fact that they no names or addresses were provided in the CCP 96 response. I received the following: 

 

We will be providing you with a witness list which will provide you with the name of the custodian of records testifying at trial. 

 

Well... ain't that something. How grateful I am that at some point within the next 7 days you will give me a list of the custodians of records... 

 

Seems like not only do I need an objection for the CCP 96, but I will be turning the MIL @Sandinca posted into a second objection to stop them from introducing any witnesses. 

 

As always, thank you all for staying with me through this... It really is an interesting adventure, and since its a low risk proposition for my uncle, I'm really starting to have a lot of fun with this!!

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   If they do try to supplement, you can point to the language in the statute that says no supplemental response is allowed!

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At this point, I'm posting updates just so the next person, perhaps 8 months or 8 years from now can have answers to all these questions... 

 

I sent a meet and confer email to opposing counsel informing him that I planned on objecting to the introduction of any witnesses based on the fact that they no names or addresses were provided in the CCP 96 response. I received the following: 

 

We will be providing you with a witness list which will provide you with the name of the custodian of records testifying at trial. 

 

Well... ain't that something. How grateful I am that at some point within the next 7 days you will give me a list of the custodians of records... 

 

Seems like not only do I need an objection for the CCP 96, but I will be turning the MIL @Sandinca posted into a second objection to stop them from introducing any witnesses. 

 

As always, thank you all for staying with me through this... It really is an interesting adventure, and since its a low risk proposition for my uncle, I'm really starting to have a lot of fun with this!!

 

 

These are professional litigants.  It is unfortunate that they find it inconvenient to comply with the rules that you have been forced to follow because they filed this case against you.  CCP 96 (d) (in italics only to prevent further smiling) says:

 

No additional, amended or late statement is permitted except by written stipulation or unless ordered for good cause on noticed motion.

 

I will bet you my bar card that you don't see a noticed motion supported by a declaration explaining why they couldn't give you the names and addresses at the time the Legislature determined you were entitled to receive them.

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@Sevanski

 

Well... ain't that something. How grateful I am that at some point within the next 7 days you will give me a list of the custodians of records... 

 

 

Aren't they just too kind and sweeter than honey?   :ROFLMAO2:

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By any chance do any of you know whether the judge in Department F43 of the Chatsworth has a standing order? I called his clerk, and she had no idea what I was talking about. I have a nagging suspicion I'm missing something... like something needs to be sent to the court. I feel like we should be submitting joint exhibits, witness lists, etc. to the judge, but Plaintiff's counsel has gone silent. 

 

Trial brief has been faxed over and served. I have my objections to the witness and the CCP 98 ready to go, and won't spring them until the day of the trial. Brushing up on some evidence while watching this comedy show, I mean debate... 

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So I'm thinking I will submit this request for judicial notice a few days before trial. Here is the logic... If they argue timeliness, I can turn that around on them based their CCP 96 responses and how they failed to provide me with the name of the witness they intend to present at trial. If they argue that the witness merely claimed I could leave the trial subpoena in "care of" her attorney, rather than her being physically there to take possession, then I think it gives me the perfect verbiage to press forward on how a trial subpoena can't be left in "care of". On #5, I want to press the fact that they had a 6 page declaration, yet para15 ends on the top of the 5th page, and the para 16, the penalty of perjury clause, is on the next page, indicating that the last page was just robosigned. 

 

1.     That all parts of Andover, Massachusetts are more than 150 miles from 9425 Penfield Ave, Chatsworth, California, 91311;

2.     That Zwicker & Associates is the law firm representing American Express in case XXXXXXX

3.     That the Zwicker & Associates offices are located at 199 S. Los Robles Ave., Suite 410, Pasadena, CA 91101;

4.     That Joe Blow is an employee of American Express; and

5.     That Joe Blow submitted to this Court a sworn declaration under the penalty of perjury, signed in Andover Massachusetts, attesting to the fact that she would be available for service of process at 199 S. Los Robles Ave., Suite 410, Pasadena, CA 91101 for the twenty (20) days immediately preceding this trial.

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This is definitely the belt and suspenders approach.

 

What is the exact verbiage in the declaration?  Did Joe say that he could be served "in care of" the address given or did he say that he was "available for service"?

 

I think it makes a difference.  The former has been ruled invalid by Target v. Rocha and Cach v. Rodgers.  The latter is perjury.

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@calawyer On the notice page, it's phrased as follows" Pursuant to theCode of Civil Procedure 98, and for purposes of this action, service may be made as follows: 

 

XXXXX 

Custodian of Records for Plaintiff 

c/o Zwicker & Associates 

199 S Los Robles Ave,. suite 410

Pasadena, CA 91101

 

HOWEVER, on the final page of the declaration, the declaration states that in accordance with CCP 98, I am available for service of process at the following address:

 

Zwicker & Associates 

199 S Los Robles Ave,. suite 410

Pasadena, CA 91101

 

I agree that the first example leaves a little to be desired in terms of requesting sanctions, etc. However, the second one clearly references the code and makes no mention of "care of". 

 

The closer I get to trial, the more I realize how little they can prove. Unless I get stuck with a terrible judge that completely disregards the law, I feel like it should be an easy morning... 

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The statement in the declaration is false.  And the person probably says that he is a "litigation specialist" or something like that.  If you are a litigation specialist, and you are filing tons of declarations in California, you should know that service must be accomplished by personal delivery.  So I would say this is an intentional falsehood.

 

If that person shows up for trial, that is where I would start my cross examination.  If some other witness shows up, I would tell the Court that you subpoena'd the declarant because you want to cross examine him on the misrepresentations in the declaration.  "Just any ole witness" won't do.

 

You should consider having a court reporter there in case you do get one of the pro-creditor judges.  Court reporters have a way of making the judge think twice before overruling your proper objections.

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Again, I'm just going to throw this out here to memorialize it for everyone down the road who may read this. I get an envelope today (roughly 80 hours away from trial) from Plaintiff's office. Inside, I find the witness and exhibit lists they intend to present at trial. Here is the issue... They have named two different parties as prospective witnesses, neither of which were on the CCP 96 disclosures. To make matters worse, neither of these parties were the custodian of records who answered my discovery questions OR the person who submitted the CCP 98 declaration. In short, they expect me to cross examine two people who I have never heard of, who's addresses I don't have, and who I never had a chance to depose. 

 

Am I going crazy, or should the judge laugh at this when I mention it? I've heard of home-court advantages where creditors get into certain judges that are anti-debtor, but I think in this case it would be laughable to allow either of these two "custodians of record" to present testimony that would lay foundation for the documents. 

 

Still pushing forward and getting ready to fight like my life is on the line Friday! Thanks for all the help, gang!

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Boy.  It is hard to find your best argument to respond to this insanity.

 

First of all, the CCP 98 declarant swore, under penalty of perjury, that he/she would be available for service of a subpoena.  Assuming that he/she intended to obey the subpoena, that is equivalent to a promise to appear at trial.  But now that person is not on the list?  You served the subpoena exactly as you were told.  Plaintiff should not be permitted to substitute another witness that it finds more convenient to show up.  And you are prejudiced because you want to cross examine the CCP 98 declarant about several statements in that declaration that will cast doubt on the credibility of that witness.

 

CCP 96 is very clear that you can't submit an additional, amended or late statement except by written stipulation (yeah right!) or unless ordered for good cause on noticed motion.  What do you think are the odds you will be getting a "noticed motion"?

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@calawyer I plan on throwing everything, including the kitchen sink at them. Hopefully something sticks. 

  1. Objection to CCP 98 + Declaration
  2. Objection to introduction of witnesses not named in CCP 96 responses + declaration
  3. Judicial notice of some of the pleadings where Cust of recs claimed she would be available for service and distance between Mass and CA. 
  4. P&A on Motion for Judgment (short)
  5. P&A on necessity of ex parte or noticed motion for trial extension (short)
  6. Trial Brief

I think I've done a pretty decent job of giving my client a chance to succeed. I'm just going to hammer home that there was no good cause to drop new witnesses on me last minute, so the trial needs to proceed as is. 

 

I'll let you guys know how this works out...

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Looks good to me.

 

Really consider a court reporter.  Besides creating a record, it is another reason you can offer why a continuance should not be granted if they ask for one on the morning of trial.

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So I just checked the court's website and a notice of withdrawal of ccp 98 testimony has been submitted. Now they want to present live testimony. This keeps getting whackier by the day!

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I don't see how this changes my strategy at all... I'm just going to keep pushing forward. I have documented everything for the record. If things go haywire, I'll not only have my first trial, but also my first appeal. 

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Never seen that one before.  My guess is that they are trying to have some excuse for the CCP 98 witness not to appear.  AFTER you have gone to the expense of serving the witness.

 

You have to wonder.  Why all the tricks if you have a good case?  Why not comply with the rules that you must know backwards and forwards because you file more limited civil actions than anyone else?  Or use your extensive lobbying presence in the legislature to change them?

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