1150 Laurel Owners Assoc. Inc. v. Superior Court, No. B288091 (D2d3 Nov. 7, 2018)
Defendant in this limited civil case alleging a breach of a settlement agreement responded to the complaint with an anti-SLAPP motion. The trial court denied the motion, finding that an anti-SLAPP motion could not be brought in limited civil. The Appellate Division granted a writ reversing that decision. And now the Court of Appeal grants a writ reversing the App. Div.
Showing posts with label limited civil. Show all posts
Showing posts with label limited civil. Show all posts
Wednesday, November 7, 2018
Thursday, December 15, 2016
Seven Service Options, None Good, Doesn't Cut It Under CCP § 98.
Midland Funding, Inc. v. Romero, No. JAD16-06 (Orange Cnty. Super. App. Div. Sept. 6, 2016)
Code of Civil Procedure § 98 permits, under certain conditions, a party in a limited civil case to offer a declaration in lieu of a witness’s direct testimony. Plaintiff—some kind a debt collector—offered such a declaration by one of its officers, purporting to attest to its acquisition of Defendant’s account and to lay give foundation that certain documents were admissible business records. The declaration agreed to accept service of a trial subpoena at any one of seven locations, several of which were more that 150 miles from the courthouse and others of which were “c/o” addresses, presumably acceptable for substitute but not personal service. The trial court let the docs in over Defendant’s objection and Defendant appealed to OC Superior’s App Div.
Code of Civil Procedure § 98 permits, under certain conditions, a party in a limited civil case to offer a declaration in lieu of a witness’s direct testimony. Plaintiff—some kind a debt collector—offered such a declaration by one of its officers, purporting to attest to its acquisition of Defendant’s account and to lay give foundation that certain documents were admissible business records. The declaration agreed to accept service of a trial subpoena at any one of seven locations, several of which were more that 150 miles from the courthouse and others of which were “c/o” addresses, presumably acceptable for substitute but not personal service. The trial court let the docs in over Defendant’s objection and Defendant appealed to OC Superior’s App Div.
Tuesday, September 29, 2015
An Object Lesson on the Epistemic Limits of Debt Collectors
Sierra Managed Asset Plan, LLC v. Hale, No. 06-2013-00443856-CL-CC-VTA (Venura App. Div. Aug. 20, 2015)
In trials in limited civil cases, the parties can submit declarations in lieu of live direct testimony under Code of Civil Procedure § 98. In order to do that, the declarant has to represent that he is available for service of process at an address within 150 miles of the courthouse, so he can be subpoenaed for cross-examination if the other party is so inclined. In this case, the address given by the declarant in this case was a PO box in a store, so the declaration was false and deficient in that respect. The declarant, however, was present at trial and actually cross-examined by the defendant. So the purpose of § 98, if not its letter was met, and there was no prejudice. Under the circumstances, the trial court didn’t err in accepting the declaration.
But the declaration attached various bank documents as business records. The declarant, however, was not an employee of the bank, but of the plaintiff, a collections agent that had taken the matter under an assignment. The declarant thus was unqualified to say anything other than that he had received the documents from the bank. That isn’t enough to lay business records foundation because it doesn’t establish that “[t]he sources of information and method and time of preparation [of the records] were such as to indicate [their] trustworthiness.” See Cal. Evid. Code § 1271. So the documents and related testimony were hearsay that should have been excluded. And since they were the only evidence that the defendant actually owed the debt at issue, their admission was prejudicial.
Reversed.
Kinda reminds me of something I once heard on the radio.
In trials in limited civil cases, the parties can submit declarations in lieu of live direct testimony under Code of Civil Procedure § 98. In order to do that, the declarant has to represent that he is available for service of process at an address within 150 miles of the courthouse, so he can be subpoenaed for cross-examination if the other party is so inclined. In this case, the address given by the declarant in this case was a PO box in a store, so the declaration was false and deficient in that respect. The declarant, however, was present at trial and actually cross-examined by the defendant. So the purpose of § 98, if not its letter was met, and there was no prejudice. Under the circumstances, the trial court didn’t err in accepting the declaration.
But the declaration attached various bank documents as business records. The declarant, however, was not an employee of the bank, but of the plaintiff, a collections agent that had taken the matter under an assignment. The declarant thus was unqualified to say anything other than that he had received the documents from the bank. That isn’t enough to lay business records foundation because it doesn’t establish that “[t]he sources of information and method and time of preparation [of the records] were such as to indicate [their] trustworthiness.” See Cal. Evid. Code § 1271. So the documents and related testimony were hearsay that should have been excluded. And since they were the only evidence that the defendant actually owed the debt at issue, their admission was prejudicial.
Reversed.
Kinda reminds me of something I once heard on the radio.
Friday, September 25, 2015
$140 Buys Plaintiff $100k Extra.
AP-Colton LLC v. Ohaeri, No. E059505 (D4d2 Sept. 15, 2015)
Plaintiff filed a limited civil case in a real estate dispute, seeking damages under $25k. Defendants filed a cross-claim seeking $1 million—more than enough to put the case into unlimited civil. But they never paid the $140 reclassification fee. Plaintiff then amended, seeking well over the $25k threshold. It didn’t pay the fee either, asserting that was on Defendants. Plaintiff won a $125k verdict, and Defendants appealed, arguing that the case should have remained limited civil with a $25k max, since nobody ever paid the fee to reclassify the case as unlimited.
The court of appeal says that’s right, mostly. Since nobody paid the reclassification fee, the case should have stayed in limited civil. But it was Defendants who, having purported to turn the case into an unlimited civil with their million-dollar cross-claim, never filed the fee. And indeed, when they took their appeal, Defendants took steps to make sure the case went to the court of appeal and not to the appellate division of the superior court, where limited civil appeals are supposed be heard. Under the circumstances, judicial estoppel precluded Defendants from objecting to an award exceeding $25k on appeal. They took several positions inconsistent with the case remaining limited civil. So equity should hold them to that. Subject, that is, to the Plaintiff ponying up the $140 fee to the clerk on remand.
Affirmed.
Plaintiff filed a limited civil case in a real estate dispute, seeking damages under $25k. Defendants filed a cross-claim seeking $1 million—more than enough to put the case into unlimited civil. But they never paid the $140 reclassification fee. Plaintiff then amended, seeking well over the $25k threshold. It didn’t pay the fee either, asserting that was on Defendants. Plaintiff won a $125k verdict, and Defendants appealed, arguing that the case should have remained limited civil with a $25k max, since nobody ever paid the fee to reclassify the case as unlimited.
The court of appeal says that’s right, mostly. Since nobody paid the reclassification fee, the case should have stayed in limited civil. But it was Defendants who, having purported to turn the case into an unlimited civil with their million-dollar cross-claim, never filed the fee. And indeed, when they took their appeal, Defendants took steps to make sure the case went to the court of appeal and not to the appellate division of the superior court, where limited civil appeals are supposed be heard. Under the circumstances, judicial estoppel precluded Defendants from objecting to an award exceeding $25k on appeal. They took several positions inconsistent with the case remaining limited civil. So equity should hold them to that. Subject, that is, to the Plaintiff ponying up the $140 fee to the clerk on remand.
Affirmed.
Tuesday, June 16, 2015
Escape from Muni Court
Leonard v. Superior Court, No. C077597 (D3 May 22, 2015)
Defendant in this erstwhile limited jurisdiction collections case amended her pending cross-compliant, raising the demanded damages from $5,500 to $250,000. That qualified the case for unlimited treatment—a reclassification that should have been automatic under Code of Civil Procedure § 403.020. All she had to do was pay a $140 fee. But when she tried to pay the fee to the clerk she was told (twice) that it wasn’t necessary at that time and that her case had been reclassified.
Subsequently, the court granted a SLAPP motion directed at the counterclaims. About forty-eight days after the dismissal, Defendant filed a notice of appeal. But to her surprise, the case had not really been reclassified. The trial court struck her notice of appeal as untimely because unlike the sixty-day window in an ordinary case, Cal. R. Ct. 8.104(a)(1), the rule governing limited cases affords thirty days to appeal. Cal. R. Ct. 8.822. To save her appeal, Defendant filed a motion to reclassify the case, which the trial court denied on account of her not being able to prove that more than $25,000 was at issue. Defendant took a writ, which the Third District grants.
As I mentioned, § 403.020(a) says that whenever a party files an amended pleading that increases the amount at issue past the $25,000 jurisdictional minimum and pays the fee, the clerk should reclassify the case as unlimited. It’s a non-discretionary, ministerial duty. The court faults Defendant for filing a reclassification motion under § 403.040, which is ordinarily used when a case is incorrectly classified, as opposed to a change in classification caused by an increased demand for damages in an amended pleading. But it’s not really clear what Defendant was supposed to do to get the trial court to act. In any event, the clerk should have reclassified the case, so the court of appeal grants the writ and orders it to do so.
The court goes on to note a second mistake. The trial court should not have struck the notice of appeal as untimely, even if was right on the merits. That’s not its job. The filing of the notice divested the trial court of jurisdiction, so any challenge to the timeliness of the notice should have been directed to the court of appeal.
Writ granted.
Defendant in this erstwhile limited jurisdiction collections case amended her pending cross-compliant, raising the demanded damages from $5,500 to $250,000. That qualified the case for unlimited treatment—a reclassification that should have been automatic under Code of Civil Procedure § 403.020. All she had to do was pay a $140 fee. But when she tried to pay the fee to the clerk she was told (twice) that it wasn’t necessary at that time and that her case had been reclassified.
Subsequently, the court granted a SLAPP motion directed at the counterclaims. About forty-eight days after the dismissal, Defendant filed a notice of appeal. But to her surprise, the case had not really been reclassified. The trial court struck her notice of appeal as untimely because unlike the sixty-day window in an ordinary case, Cal. R. Ct. 8.104(a)(1), the rule governing limited cases affords thirty days to appeal. Cal. R. Ct. 8.822. To save her appeal, Defendant filed a motion to reclassify the case, which the trial court denied on account of her not being able to prove that more than $25,000 was at issue. Defendant took a writ, which the Third District grants.
As I mentioned, § 403.020(a) says that whenever a party files an amended pleading that increases the amount at issue past the $25,000 jurisdictional minimum and pays the fee, the clerk should reclassify the case as unlimited. It’s a non-discretionary, ministerial duty. The court faults Defendant for filing a reclassification motion under § 403.040, which is ordinarily used when a case is incorrectly classified, as opposed to a change in classification caused by an increased demand for damages in an amended pleading. But it’s not really clear what Defendant was supposed to do to get the trial court to act. In any event, the clerk should have reclassified the case, so the court of appeal grants the writ and orders it to do so.
The court goes on to note a second mistake. The trial court should not have struck the notice of appeal as untimely, even if was right on the merits. That’s not its job. The filing of the notice divested the trial court of jurisdiction, so any challenge to the timeliness of the notice should have been directed to the court of appeal.
Writ granted.
Tuesday, September 9, 2014
Over in Limited Civil ...
CACH LLC v. Rogers, No. 56-2012-00420026-CL-CL-VTA (Ventura App. Div. Aug. 26, 2104)
The Code of Civil Procedure affords simplified trial procedures for limited civil cases—those where less than $25,000 is at issue. One of those procedures, in § 98, permits a party to submit direct testimony by declaration, provided the declarant agrees to be subject to service in some place within 150 miles of the courthouse, so he, she, or it can be subpoenaed for cross-examination at trial. The point is to avoid burdening certain witnesses—like custodians of records—who are unlikely to face serious cross at trial.
Here the declarant—a company offering documentary evidence—was from Colorado, but agreed to take service at its attorney’s office in Woodland Hills. Problem is, when service was attempted, the attorney’s office wouldn’t take it, claiming that the client didn’t work there. The court—following a similar appellate division case—holds that the trial court should not have accepted the declaration. If the declarant isn’t actually available for effective service at the location provided, § 98 isn’t satisfied and the declaration testimony (including attached documents) can’t come in. Any other result would interfere with the right to cross examine witnesses at trial.
Reversed.
The Code of Civil Procedure affords simplified trial procedures for limited civil cases—those where less than $25,000 is at issue. One of those procedures, in § 98, permits a party to submit direct testimony by declaration, provided the declarant agrees to be subject to service in some place within 150 miles of the courthouse, so he, she, or it can be subpoenaed for cross-examination at trial. The point is to avoid burdening certain witnesses—like custodians of records—who are unlikely to face serious cross at trial.
Here the declarant—a company offering documentary evidence—was from Colorado, but agreed to take service at its attorney’s office in Woodland Hills. Problem is, when service was attempted, the attorney’s office wouldn’t take it, claiming that the client didn’t work there. The court—following a similar appellate division case—holds that the trial court should not have accepted the declaration. If the declarant isn’t actually available for effective service at the location provided, § 98 isn’t satisfied and the declaration testimony (including attached documents) can’t come in. Any other result would interfere with the right to cross examine witnesses at trial.
Reversed.
Subscribe to:
Posts (Atom)