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My husband got served less than 10 days, and after 9:30pm, with an order for appearance and examination. This is an unlimited civil case. What can he do to postpone the examination that is scheduled for 9/24/2009?

Submitted: 62 days and 16 hours ago.
Category: Legal
Value: $18
Status: AWAITING CUSTOMER ACTION
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Optional Information

State/Country relating to Question: California

Already Tried:
The plaintiff is a former employee who embazzeled the company assets when the owner got arrested and later convicted for credit card fraud. As an investor and officer of the company my husband is now in the process of filing bankruptcy as well as facing an enforcement of judgment. The company is not operating and he is unemployed. We don't own real property except for a 2004 mitsubishi and a 2006 toyota corolla.

Posted by B. T. Mayer, Counselor at Law 62 days and 16 hours ago.

Info Request

Which state is this in?

62 days and 16 hours ago.

Reply

California

Posted by B. T. Mayer, Counselor at Law 62 days and 16 hours ago.

Answer

Hi there:

there are two options. Option #1 is to immediately file a motion to quash under the theory that it was not served with adequate advanced notice (at least 10 days notice must be given, you are correct). Whoever prevails in a motion to quash gets their attorney fees paid by the other side, so you may want to contact an attorney. Option #2 is to simply not appear; this is usually not a good idea because the party who subpoenaed you could seek to enforce the subpoena by prosecuting you for criminal contempt of court; you would ultimately prevail, but it will be a waste of your time and energy to deal with.

Let me know if I may be of further assistance, and please remember to click "accept". Thank you.

62 days and 16 hours ago.

Reply

1. how do I prove the 'late notice'?

2.can he file this motion himself or does it has to be an attorney who does it (since it's not a small claim case)?

3.what about the time frame for filing this motion..the examination is only 5 days away

 

 

Accepted Answer

1. the subpoenaing party must complete a proof of service for the court, showing when and where it was served.
2. I would recommend having an attorney do it, but anyone can represent themselves.
3. it must be filed and served within 5 days. I would take care of it by Monday and try to have it filed and served by Tuesday. Yes, it is a short time frame; as I said, I would expect you to easily prevail under either scenario.

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Expert: B. T. Mayer, Counselor at Law
Pos. Feedback: 99.7 %
Accepts: 
Answered: 9/20/2009

Attorney

California attorney experienced in family, probate, criminal, and personal injury law.

62 days and 15 hours ago.

Reply

Sounds like there's a good chance to get this postponed, but where can I find the correct document to file this motion? Also is there a way to know the time frame from when the motion is file to when the plaintiff can file another 'order for appearance and examition? When my husband gets his bk filed will this judgment have a chance to get dismissed?

 

Thank you so much for clarifying those issues. As a Swede it's very hard to understand the American system of the 'civil law'.

 

Finally would you mind giving your input on the following: When we wanted to report the plaintiff for theft of the company assets at the time of the owners arrest. The detectives reply were that this comply to civil law and we would have to sue..since we didn't have the funds to pay for the attorney fees of doing this and we ended up losing our investment. Note that the plaintiff has been forging my husbands signatures on top of stealing all the equpiment of the company. Isn't that criminal?

Posted by B. T. Mayer, Counselor at Law 62 days and 13 hours ago.

Info Request

Hi again:

unlike other actions, there's not a form for a motion to quash. It has to be drafted from scratch; your best bet would be to visit your local law library and ask the law librarian if they have any samples. This is why it's really good to have an attorney involved at this stage. The plaintiff can get another order for appearance and examination immediately, but he still has to give 10 days notice before it actually takes place.

civil judgments can be discharged in bankruptcy.

62 days and 13 hours ago.

Reply

appreciate your reply..thank you

Posted by B. T. Mayer, Counselor at Law 62 days and 13 hours ago.

Answer

You are welcome. Thank you.

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