small fry

CCP Sec.98 and Midland Funding v. Edwards 2013 Sonoma County, CA Appellate Division

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http://www.nclc.org/images/pdf/unreported/midland-v-edwards-12132013.pdf

The Sonoma Appellate Division's decision in this case is a good read. Particularly in regards to CA CCP Sec.98 and the Declaration in Lieu of Testimony with attached documentary exhibits regularly filed by Midland and the other JDB's here.

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They need one of these in Arizona. . Aren't they in the same circuit? Might be persuasive albeit not binding if they had opinions from each state in the circuit. Just thinking out loud here.

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Thank you @small fry . stick around and in touch. My wife informed me that you are in the same county as us, I may need your help in the near future.

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Thanks. I think reading the decision in this case can help one in clarifying and better understand one's arguments. As Calawyer recently noted:

 

"Even if you fail to serve a subpoena on the witness most of the testimony in a typical CCP 98 affidavit, and most of the documents attached as exhibits, should NOT be admissible at trial IF YOU OBJECT.  This is because CCP 98 itself says, "To the extent the contents of the prepared testimony would have been admissible were the witness to testify orally thereto, the prepared testimony shall be received as evidence in the case..."

 

Most CCP 98 declarations do not contain testimony that would be admissible if the witness testified orally on the stand.  The declarations usually do not set forth sufficient foundation.  They usually contain hearsay that does not meet any exception.  So even if you do not serve a subpoena, a judge applying California rules of evidence should not admit a typical CCP 98 declaration into evidence."

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@shellieh98:  Arizona and California are in the same Federal Circuit, but this opinion is from California state court.

In any event, I am pretty sure this opinion was not published.  Therefore it should not be cited even in California.

 

But the reasoning and arguments the Court employs  may be used in any case.

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