Can I still send a CCP 96 if the case has been continued?

[SoCalGal]

My trial date was today. I served a subpoena on the declarant in the Plaintiff's CCP 98 which was delivered Friday. The lawyer for the JDB claimed he had no notice of the subpoena  and therefore not enough time to get the witness to appear. They asked for a continuance.

I objected saying that the declarant should have been at the stated address for the 20 days preceding trial. The fact that they were not there to receive personal service doesn't affect the fact that the subpoena was issued properly.  (The process server left the subpoena with the receptionist who promised to "email" it the declarant right away and provided me with a proof of non-service.)

The judge agreed with the Plaintiff and gave the JDB a 45-day continuance saying that a subpoena must be served with a "reasonable time" for the witness to prepare.

My question is that now that the trial has been continued, can I issue a CCP 96? I didn't do this previously, but now I would like to lock in their witness and exhibits so that I can prepare proper motions against them.

[RyanEX]

Part of the CCP 96 language "The request shall be served no more than 45 days or less than 30 days prior to the date first set for trial."

Makes me think that the window to serve a CCP 96 is tied to the original trial date of today. But I could be wrong, I haven't seen a this particular scenario come up with a continuance.

Did you try using the following when objecting to a continuance? Have it handy for next time because plaintiff may try to get a continuance again 45 days from now.

http://www.courts.ca.gov/cms/rules/index.cfm?title=three&linkid=rule3_1332
 

Quote

 

Rule 3.1332. Motion or application for continuance of trial

(a) Trial dates are firm

To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain.

(b) Motion or application

A party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the request for a continuance by a noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered.

 

 

[SoCalGal]

I'll keep Rule 3.1332 on hand for next time. I don't think it would have helped today. The judge basically said I was lucky the Plaintiff requested a continuance because he might have been inclined to quash the subpoena since it was not issued with "reasonable time" for the witness to respond. 

I kind of interpreted the "date first set for trial" as meaning it is too late for the CCP 96, but don't have much experience so thought I'd see what the smart folks here thought. If I can't send the CCP 96, then I'll have a whole different set of questions.

[sadinca]

in your place i would go ahead and send a ccp 96 request. the worst think that could happen is that they object to it. 

[Anon Amos]

I would send it anyway, let them object. You have more time to prepare now, so use it against them.

[SoCalGal]

I sent off the CCP96 request and heard back today. Although they Objected to the request as "being untimely," they supplied a list of exhibits and witnesses (Bill of Sale, Affidavit of Sale, data record and 5 possible witnesses including the individual already subpoenaed to testify.

At the same time, but in a separate envelope, I received a letter from Hunt & Henriques stating that they would like to resolve this matter before trial and are authorized to extend an offer of "mutual release of claims" with each party bearing their own costs and fees. I have a few days to respond before the offer is withdrawn.

So, my question is, if I accept a mutual release of claims can I request that the dismissal be with prejudice so that they can't refile the case? I'd rather not go to trial, but I also don't want this starting all over again a couple months down the road and there is still about 8 months left before statute of limitations runs out.

Since my earlier question started mid-case, I have included the answers to the forum questions to provide better background information.

1. Who is the named plaintiff in the suit?
Portfolio Recovery Associates

2. What is the name of the law firm handling the suit?
Hunt & Henriques

3. How much are you being sued for? 
$5XXX

4. Who is the original creditor? (if not the Plaintiff)
Portfolio Recovery Associates

5. How do you know you are being sued? (You were served, right?)
I was served

6. How were you served? (Mail, In person, Notice on door)
In Person

7. Was the service legal as required by your state?
Yes

8. What was your correspondence (if any) with the people suing you before you think you were being sued?
None

9. What state and county do you live in?
Los Angeles County, California

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)
Documents state 5/2013

11. What is the SOL on the debt? To find out:
4 years

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).
- Suit Served
- Responded with General Denial
- Received Declaration in Lieu
- Subpoenaed the Declarant
- Trial was continued because the declarant was unavailable
- Sent a CCP96 to Plaintiff 
- Plaintiff responded that a CCP96 was untimely, but provided a list of exhibits and witnesses
- Plaintiff sent a letter with an offer for a "mutual release of claims"

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)
No.

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.
Yes.

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?
I have 4 days to respond to the offer of a mutual release of claims, otherwise trial is in 2 weeks.

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.
The CCP96 response includes:
- Bill of Sale (with attachment of a data record, but no list of assets)
- Load Data (I think this refers to the data record showing name, partial account number, etc)
- Affidavit of Sale (from the original creditor)
- Billing Statements for 1 year
- a list of 5 potential witnesses (one of these witnesses is the Declarant who was subpoenaed and is supposed to show up for trial) 

[Anon Amos]

56 minutes ago, SoCalGal said:

 

So, my question is, if I accept a mutual releasof claims" with each party bearing e of claims can I request that the dismissal be with prejudice

 

 

You most certainly can. Good job, congratulations.

[RyanEX]

You have them on the ropes. Well done. Asking for the dismissal to be with prejudice would be a good move.

[neweuquol]

On 9/18/2016 at 7:33 PM, SoCalGal said:

So, my question is, if I accept a mutual release of claims can I request that the dismissal be with prejudice so that they can't refile the case? I'd rather not go to trial, but I also don't want this starting all over again a couple months down the road and there is still about 8 months left before statute of limitations runs out.

Not only could you insist on a dismissal with prejudice you should insist on it, after all that is pretty much what a "mutual release of claims" means.

I agree you probably got lucky they asked for a continuance as opposed to quashing the subpoena.   I do not know about California but most of my scheduling orders here require a pre-trial order to be submitted by both parties and if the witness and/or exhibit is not listed, you might as well not waste your time trying to get in into evidence.   There usually is a deadline for the filing of subpoenas for witnesses listed in the pre-trial order also and it's normally well in advance of trial (15 days or more).

[sadinca]

you can also request they remove the tradeline off your credit report. 

[adjusterintrouble]

@socalgal

How did it go, did they agree to any of your demands and dismiss the case with prejudice?

[SoCalGal]

I didn't ask for removal of the trade line because something I read states that it is against the credit agency rules for reporting entities to negotiate a removal and I was worried about asking for something that might delay a response so close to the trial date.

So far, I agreed to the release and they filed a conditional dismissal. I signed the agreement, but am stilling waiting for them to file the final dismissal with the court. 

I definitely consider this a win! Just trying to be patient until the final details get resolved.

[RyanEX]

Well done! That's definitely a win. Congrats!