TexLawyer : Good evening. I'll be assisting you with your question.
TexLawyer : Once the order has been signed, there is very little the opposing side can do.
TexLawyer : Orders are considered final once signed by the judge and the time to appeal has passed (usually between 10-30 days since the order was signed).
Thank you. Does this apply to California Law?
TexLawyer : The only thing they could do is attempt to seek a injunction against the execution, but that would be VERY uncommon. It would only apply in a situation where the judge just went completly rouge and was disregarding his judicial duties. Yes, this applies to CA.
TexLawyer : The time for them to callenge it is after it is served and executed on whatever property it is for. At that point, the property owner of the executed property could, in theory, come in and assert some kind of defense, like they are the wrong party, or something of that nature.
Is it possible for funds to be removed from an account after the writ has been issued, but before it is executed upon?
TexLawyer : Yes, it is possible. If the bank is unaware of the order, they would have no reason to restrain the account.
Thank you. My next question will take a moment to write.
TexLawyer : Sure. Go ahead.
RE: California Penal Code section 138(a) Witness tampering. I am acting In Pro Per. I mistakenly served a SDT rather than a subpoena for
sorry about that I sent by accident and will finish question on next screen
business records. I have since had the proper subpoenas issued and served. However, opposing counsel sent the following letter to my witnesses instead of using the appropriate legal remedies:
"Today I received a document entitled "Civil Subpoena Duces Tecum for Personal Appearance and Production of Documents . . . at Trial or Hearing and Declaration" from _______, that was allegedly personally served on you. The person that issued the subpoena is __________, who stated that her title is "Pro Per." Be informed that the dubpoena is invalid onits face on at least three levels 1) there is no trial or hearing set for April 19, 2013; 2) she failed to complete item #4 which requires her to list the name and telephone number of the subpoenaing party or attorney and 3) ___________ is not authorized to issue the subpoena. She is neither a clerk, judge, or attorney at law, as required under Cal. Code Civ. Proc. 1985. There are, of course, further issues as to whether the "good cause for the production of the documents" supports the documents demanded. I am sending a demand to ___________ that she immediately notify you of her cancellation of the invalid subpoena. If she does not, you may wish to ascertain for yourself what your obligations may or may not be. If you have any questions, please do not hesitate to give me a call. It is my understanding under Penal Code 138(a) that this is witness tampering and undethical conduct on her part. My quesiton is - if I bring it before the court how would you anticipate them responding? Also, should I bring it up as a sidebar or in chambers? thanks
TexLawyer : My guess is that they would respond that they were just informing the witnessess of their legal rights, which is not witness tampering, at least as I understand it. This is quite a sticky situation, so that would bear some research to determine if a person has ever been actually charged in this kind of scenario. But, that is how I would assume they would respond.
TexLawyer : As far as how to address it with the judge, this is probably something you want on the record, so I wouldn't do it in chambers or in a sidebar. I'd do it in open court. You may consider informing the judge ahead of time (with opposing counsel present) what's about to happen, but you want it on the record.
TexLawyer : Does that answer your question?
Thank you. Next question... Based upon the previous scenario, several witnesses have failed to comply with the subpoenas, based upon the advice received from opposing counsel by letter. What is the procedure for compelling compliance with a subpoena?
By subpoenas, I mean the properly re-issued subpoenas.
TexLawyer : If you want to require them to comply, you will have to drag them back into court. The way to do that is to file a "show cause" motion. A show cause motion is a motion requesting that the court require them to come in and show cause as to why they failed to comply.
TexLawyer : At that hearing, the judge can either accept their argument or order them to comply. If they still refuse, they can be held in contempt.
Excellent! In filing my served subpoena with the court do I need to file the original or will a copy do? Thanks
TexLawyer : A copy will do.
TexLawyer : Can I help you with anything else?
Last question... Opposing counsel has submitted numerous documents to the court containing mis-statement, half truths, and complete falsehoods. She has also intimidated a witness into signing declarations against her own interests by threatening that witness along with her client of the loss of her job. The witness has to come to me and wants to recant her previous declaration. How do I address the statements made by opposing counsel and the witness' request to recant previous declarations? Does this impeach the witness for future declarations which would be in my favor?
TexLawyer : You need to file a motion in the court for sanctions agains the attorney, as well as make a referral to the state bar disciplinary committee. If you can prove she did what you've described, this is a major violation.
Thank you. Can you be more specific as to the recanting of a dec and submission of additional decs by witness.
Does recanting taint a wit for all future decs?
TexLawyer : If your witness recanted and the judge does not find that the attorney committed ethical violations, then your witness can be impeached with that recantation.
TexLawyer : No, just as it pertains to that statement.
Thank you - this really helps me. Hopefully, we can talk again. Good night.