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New suit in Orange County by H&H and PRA


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49 minutes ago, adjusterintrouble said:

I have to check the 98 when I get home, I forget the specific language. 

When I asked the process server company to leave it, they indicated that they cannot leave a subpoena as it is binding and a bench warrant could be put out for the witness if they do not show(??!!)? 

I get it.  But Plaintiff is doing it WRONG.  So you have to just do the best you can.  And I think the process server's declaration of diligence looks better if he/she declares that the person wasn't there but left it with the manager  anyway because the CCP 98 declaration said to do so (even though it is NOT valid service).

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OK, the 98 indicates"Pursuant to CCP 98 this affiant is available for service of process c/o ABC Legal 316 W. 2nd St 32rd Floor....for a reasonable period of time during the twenty days immediately prior to trial"

So does the "c/o" change it and mean that I need to leave the subpoena with ABC legal? @calawyer

I also just received the response to the 96, which lists the same person that did the declaration in Lieu of Personal Testimony but at a different address in San Diego. Also lists two other people at an address in San Diego. Do I need to serve Colby Eyre in LA and in San Diego? Do I need to serve the other people as well?

@Anon Amos @sadinca

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36 minutes ago, adjusterintrouble said:

 

So does the "c/o" change it and mean that I need to leave the subpoena with ABC legal?

Do I need to serve Colby Eyre in LA and in San Diego?

@calawyer @Anon Amos @sadinca

The CCP 98 is unlawful because, as we all know, the declarant is not "available" to be served there.  There is no "rule" that says your process server has to leave it there.  I just suggest you do so.

You do NOT have to serve the witness at any other address other than the address they gave you in the declaration (Why would you try to find the witness in LA when you have a declaration, under penalty of perjury, saying the declarant can be found at ABC Legal?). 

 

It is great for you that they only listed the CCP 98 declarant on the CCP 96 response.  If the Judge finds that they violated CCP 98 (as the Court should pursuant to the applicable case law), then plaintiff has no witness.

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Finishing my Trial Brief, Objection to Declaration in Lieu of Testimony and Declaration in Support tonight. 

In my jurisdiction I have up to 5 days prior to trial to file my trial brief. The trial is next week. Do I file it with the court and serve it on the Pltfs counsel? Do I file the POS with the court with the trial brief? Since the trial is next week, do I send overnight mail POS-040? 

I am using @Skates97 template and trying to make changes as needed. 

Sorry for so many questions. Thanks!

@calawyer @Anon Amos @Skates97

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In the Plaintiffs Statement of Witnesses and Evidence, it states

Description of Documents to be Produced at Trial:

...

Plaintiff also intends to offer documents into evidence which are currently unavailable including copies of the application and payments from Defendant. Plaintiff anticipates those documents will be available prior to trial. 

Can I object to the application and payments? How can I word that into my trial brief or objections? ANy examples? My understanding is that if they do not supply the evidence with their reply to the 996 then it should be inadmissible. 

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9 hours ago, adjusterintrouble said:

Finishing my Trial Brief, Objection to Declaration in Lieu of Testimony and Declaration in Support tonight. 

In my jurisdiction I have up to 5 days prior to trial to file my trial brief. The trial is next week. Do I file it with the court and serve it on the Pltfs counsel? Do I file the POS with the court with the trial brief? Since the trial is next week, do I send overnight mail POS-040? 

I am using @Skates97 template and trying to make changes as needed. 

Sorry for so many questions. Thanks!

@calawyer @Anon Amos @Skates97

Yes,   File and serve plaintiff's counsel.  Unless there is a requirement about overnight mail it is not necessary but a nice courtesy (I would do it),  File the POS with the court.

Make sure you have the Trial date and department on the caption so someone gets it to your judge in advance of trial.

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8 hours ago, adjusterintrouble said:

In the Plaintiffs Statement of Witnesses and Evidence, it states

Description of Documents to be Produced at Trial:

...

Plaintiff also intends to offer documents into evidence which are currently unavailable including copies of the application and payments from Defendant. Plaintiff anticipates those documents will be available prior to trial. 

Can I object to the application and payments? How can I word that into my trial brief or objections? ANy examples? My understanding is that if they do not supply the evidence with their reply to the 996 then it should be inadmissible. 

Yes!!!!

 

Write them a letter quoting the code.  It says:

 

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 (Emphasis in original).

 

Tell them that you will object to any documents being used at trial that were not furnished together with the response.

 

If they want to use late documents, they need to file a noticed motion supported by good cause (ie explain why they didn't have these most basic documents sooner).  It will be even better if you asked for them during discovery and they didn't give them to you.  If they just try to use them at trail, you can tell the judge you wrote and objected and they STILL didn't file a motion.

 

There are exemplars of such letters on the site.

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Attach a copy to your declaration in support of objection.  Keep the original to file with the clerk at trial (if necessary).  When you first mention that the witness was not there in your objection, add a cite to Exhibit _____ of your declaration.

 

You will also want to serve a copy of your objection and declaration on plaintiff's lawyer.

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32 minutes ago, adjusterintrouble said:

@calawyer When you cite a case, do you need to include an abstract of the case as an exhibit, like Target v. Rocha? Where do you find an abstract?

No.  Just the official citation:  Target Nat. Bank v. Rocha (2013) 216 Cal.App.4th Supp. 1.  The court can locate any case cited in this fashion using westlaw or lexus.

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Sometimes, people just file the objection and attach as an exhibit, the proof of service showing that the witness was not there.  If you want to prepare a declaration and attach the proof as an exhibit, that is actually the "proper" way to do it.  But your Declaration would not, itself, be an exhibit to the objection.  It is filed as a separate document. 

So, Iif you do it the latter way, you would be filing two documents: 

1.  Defendant's Objection to Declaration of _____; and

2.  Declaration of Adjusterintrouble in support of Defendant's Objection

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