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  1. #1

    Default What to Do After a Judge Grants a Continuance

    My question involves collection proceedings in the State of: California


    I am helping a relative with their collections case. The trial was held a few days ago and we were given a continuance. The plaintiffs (a collections agency and not the original creditor noted in the lawsuit) attempted to use a Declaration in Lieu of Personal Testimony from their custodian of records. We objected to the Declaration and provided the court with a Declaration of Due Diligence from a process server that an attempt was made to subpoena the custodian of records. The subpoena attempt was made only once so the plaintiff’s lawyer convinced the judge not to accept the Declaration of Due Diligence. The judge continued the case for hearing approximately 30 days later due to a language barrier. He also said that he was going to order the plaintiff’s custodian of records to appear at this next trial.

    When reading the case summary, this is what shows:

    07/##/2015 DECLARATION IN LIEU OF PERSONAL TESTIMONY PURSUANT TO CCP
98 FILED.

    07/##/2015 CAUSE CALLED AT ##:## #M, IN DEPT. ### , HON. ##### JUDGE PRESIDING FOR COURT TRIAL. MATTER 
CONTINUED FOR COURT TRIAL TO 08/##/15 AT ##:## #M, IN
 DEPT. ### .

    07/##/2015 CASE FILE RETURNED TO CIVIL DEPARTMENT FROM COURTROOM.

    07/##/2015 CASE FILE FORWARDED TO ### PREP ROOM RE: 07/##/15 CAL

    Does this mean the the plaintiff’s lawyer filed the Declaration in Lieu of Personal Testimony after the judge ordered the case to continue?
    Do we have to mail the custodian of records a Notice to Appear?
    Do we have to file a motion in limine against the CCP 98?

    Our ultimate goal is to have the case dismissed before the next trial. What can we do next?

  2. #2
    Join Date
    Jan 2006
    Posts
    38,867

    Default Re: Given Continuance. What Next

    WE, as in you, cannot do anything unless you are a licensed attorney. If WE, as in you, do anything, you will have violated the law and are guilty of the unlicensed practice of law.

    Does this mean the the plaintiff’s lawyer filed the Declaration in Lieu of Personal Testimony after the judge ordered the case to continue?
    as far as when they filed anything in relation to the court date; you never provided the court date and you did not include an actual date for the recorded activity.

    Do we have to mail the custodian of records a Notice to Appear?
    what did the judge say as to notice to the custodian?
    Do we have to file a motion in limine against the CCP 98?
    so far you said the court refused to accept the affidavit.

    as to there being a new ruling; weren't you in court? Did you hear the judge change their position? Did you hear the plaintiff make a motion regarding the declaration?
    What can we do next?
    it sounds like hiring an attorney that knows what they are doing would be a good next step. So far all you have said is you objected to the proof they attempted to use. If they overcome that issue, are you dead in the water because from what you have posted, there is a trial next month.

  3. #3

    Default Re: Given Continuance. What Next

    Thank you for your help. I understand that all I can do is pass along information.

    The plaintiff’s lawyer filed the Declaration in Lieu of Personal Testimony on the same day as the trial. It appeared higher on the case summary leading the defendant to wonder if it was done after the continuance was granted.

    The judge did not mention that the defendant had to do anything regarding a notice. He said something along the lines of, “We’re going to order [the declarant] appear in court at the next trial”.

    The plaintiff did not make a motion regarding the declaration.

    The defendant is scheduled to meet with an attorney but wanted to know if there was anything that he should do immediately.

  4. #4
    Join Date
    Jan 2006
    Posts
    38,867

    Default Re: Given Continuance. What Next

    Quote Quoting firebird1212
    View Post

    The defendant is scheduled to meet with an attorney but wanted to know if there was anything that he should do immediately.
    especially since they are meeting with an attorney I would suggest they do not do anything. They may cause more problems than they might cure and given the timeline, things should be pretty much set.


    The plaintiff’s lawyer filed the Declaration in Lieu of Personal Testimony on the same day as the trial.
    is that not the document/evidence that was objected to? It would appear to be especially since you stated this in your first post:


    The plaintiffs (a collections agency and not the original creditor noted in the lawsuit) attempted to use a Declaration in Lieu of Personal Testimony from their custodian of records. We objected to the Declaration
    and now you are asking if this was a different declaration? Does that really make any sense?

    but I don't understand why you even ask about it. It was filed prior to the judge setting the trial for an Aug date which makes sense since it was ruled on during the hearing that took place. . Your explanation of the hearing appears to coincide with the summary quite well.

  5. #5

    Default Re: Given Continuance. What Next

    I am not asking if this was a different declaration. Judging from your post, can we assume that any Declaration in Lieu of Personal Testimony has to be filed with the court prior to the trial? Our confusion stemmed from the fact that the case summary shows items on a timeline and the filing of the Declaration is the item highest on the case summary, causing us to believe that it was only filed with the court after the trial was continued.


    If the judge said that the custodian of records will be required to appear at the next trial, should that be indicated in the case summary somehow (proof of service from the court, etc.)?

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