Limited civil, going to trial i want to object the ccp 98 the plaintiff's witness on the grounds of lack of personal knowledge

Yes, yes and yes (you must object). Your strategy is correct. In California limited jurisdiction civil cases (where the amount in controversy is less than $25,000), a declaration of an authorized agent is admissible in evidence if the declarant would otherwise be a competent witness at trial pursuant to California Code of Civil Procedure section 98(a). California Code of Civil Procedure section 98(a) requires that the witness declaration be served at least 30 days prior to the trial, together with a current address of the person making the declaration if within 150 miles of the place of trial, and a representation that the declarant is available for service of process (i.e., a civil trial subpoena) at that place for a reasonable period of time during the 20 days immediately prior to trial. Thus, if the opposing party has served a Section 98 declaration, the best strategy is to subpoena the witness to appear at trial, thereby permitting an opportunity for cross-examination. If the witness is not available for subpoena or fails to appear for trial after having been properly served with a subpoena, then you the opposing party can ask the court to exclude the Section 98 declaration. Without evidence, the court would most likely rule in favor of you, the opposing party.

Attorney Chen is correct. You have to object, and your objections need to be in writing, filed with the court, and mail served on opposing counsel. Include appropriate citations to the Evidence Code and some analysis /argument as to why portions or all of the declaration is inadmissible (foundation, authentication, personal knowledge. Hearsay is subsumed by the Business Records exception). To wrap up your strategy to exclude the 98 Dec., you need to subpoena the witness to attend trial. You gave a big problem if the witness lives out of state - he/she is not under jurisdiction of the court and canot be compelled to attend trial. But, if the opposing counsel listed their California address for service of process, you can serve the subpoena there. Just in case the attorney's office will not accept service of the subpoena (a tactic), you can concurrently mail serve then with a Notice to Appear at Trial in Lieu of a Subpoena pursuant to Code Civil Procedure section 1987(b). Hurry and good luck! Richard A. Rodgers, Esq. (805) 230-2525 200 N. Westlake Blvd. Ste 201 Westlake Village, CA 91362 [email protected] www.sdresq.com

Yes, as explained by Atty Chen, you can object to the declaration. There are time limitations and rules set forth in the Code, which are pretty simple actually. Sounds like your time is short; yo need to be moving on this immediately