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  1. #1
    Join Date
    Oct 2008

    Default Subpoena, Witness Statement, Affidavit, Deposition

    I unfortunately need to take an ex-partner (no marriage) to Court to:
    1. Recover monies stolen from me by the ex-partner.
    2. Prove she has stolen monies from others and I do not wish to be caught up in this action as I was not a party to the theft (fraud).
    3. There are other issues as well.
    On the other hand, I am being falsely accused by her for Domestic Violence, Stalking, Harrassment, Following her etc. She filed a very complex and voluminous Temporary Restraining Order (TRO) on me a year ago and the Court dismissed it after a lengthy hearing stating she was not credible. Two days after the dismissal, she went to the local police and filed a Stalking Report. Once the police found out that a Restraining Order request had been dismissed 2 days earlier (my ex deliberately did not inform them) and read the Court transcript of the hearing and investigated her Stalking Report claims the police elected to not pursue action. I have been advised they will not.
    What I want to do is to obtain proof from my ex's and my mutual friends and many others to prove my case in any actions I MAY be forced to take against my ex (I am trying to get her to resolve most issues via mediation) and to defend myself should she take further unwarranted actions against me. She is continuing to threaten me with refiling a Restraining Order request with exactly the same issues that took place years ago which were dismissed year ago and numerous other nonsense threats.
    Here is my question:
    What is a document that is admissible in a California Court?
    If I get a written statement from a person stating his knowledge on an issue, what form does it have to be on, who has to witness it, does the person who provided the facts have to attend Court (one person will be unable to do so), if the person is unwilling to sign a statement do I have to have that person subpoenoed to appear in Court (one person may not be willing).
    In other words, if a person says XYZ happened on June 18, 2009, does an Affidavid need to be prepared, or is there some kind of "Witness Statement" that will suffice etc. I just want to get this process going now to avoid a last minute crisis.
    Thank you.

  2. #2
    Join Date
    Sep 2005
    Behind a Desk

    Default Re: Subpoena, Witness Statement, Affidavit, Deposition

    If you wish to present the testimony of a witness at trial, you should expect that your witness will have to be present and take the stand. Although in some circumstances a small claims court may be more flexible - and you should investigate that in advance to know what is allowed (e.g., written appraisals instead of having an appraiser appear and testify) - as a general rule you don't get to deprive the other party of the opportunity to cross-examine, or the finder of fact the opportunity to watch a witness testify and to assess credibility, by submitting affidavits instead of live testimony.

  3. #3
    Join Date
    Oct 2008

    Default Re: Subpoena, Witness Statement, Affidavit, Deposition

    Thank you Mr. Knowitall. In my defense (opposition) to the Court last year issuing a Restraining Order on me (the Judge dismissed the case against me) my counsel included several witness statements in my defense. Each of the statements was on 28 line legal paper and they were titled:

    "Declaration of [Name of Winess] in Opposition to [Name of Person Requesting the Restraining Order] Request for a Restraining Order."

    The last sentence of the statement said:

    " I declare under penalty of perjury that the foregoing is true and correct under the laws of the State of California and that this declaration was signed by me in [Name of City], California."

    Each witness signed and dated the statement. The statements were not Notarized (no then stamp or name of Notary).

    My question is:

    If I obtain an Affidavid (Is this a California General Affidavid?) in advance of any Court action, either as me as the Petitioner or the Respondent, can the Affidavid be included in my submission to the Court?

    How is an "Affidavid" related to the "Declaration" (as included in my Respondent submittal last year). Does one replace the other or are they both used or ???

    Thank you.

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