I have provided the answers below each question:
- Court’s recent order related – Publication related – #1
- I think court is not asking for service posting but only by publication. So, I can file FL-980 and FL-982 to request for publication and then once I get approval, can proceed with publication. I’m going to file FL-980 and FL-982, who decides the exact content of the matter published in the newspaper? Should it go in FL-980 somewhere like point 3.C? If so, is it in English only? Can I get a sample format of the content published in the news paper for QT / AP case?
Answer:
When serving by publication, the message to be used in the publication is usually drafted by the attorney representing the party seeking service. In this case, you are pro se. Therefore, you are the one required to draft the message.
The law does not require you to draft the message to be used in the newspaper publication. You are only required to submit your summons and signed order to the newspaper you listed in your application. The newspaper will publish your summons once a week for four weeks, and then provide you with confirmation of publication. Also, please note that the publication shall be subject to the newspaper company’s policy and guidelines.
There is no limitation on the language to be used in making the publication. The only limit given is that the newspaper must be “of general circulation” in California. Besides, both forms FL-980 and FL-982 will ask you to select which newspaper is most likely to be seen by Respondent. For example, if the Respondent was last known to be in Los Angeles, a newspaper there would be best. The courts also typically maintains a list of all approved newspapers of general circulation in
their county. You should therefore ask the court staff if you need help with choosing a newspaper.
- After publication in newspaper, either newspaper can submit the affidavit with the court or I can provide as proof of publication. If any one responds I’ll serve summons and file proof of service with the court or if no one responds still I need to file request for default. That’s it to comply with CCP 763.010 and 415.50?
Answer
If the other party has not filed a response within 30 days after the effective date for service, you may request a default against the other party. You will need to fill in Form CIV-100 “Request for Entry of Default”. You will then be able to continue your case without the other party’s participation.
If the other party responds within 30 days, the case will proceed to the discovery phase. Remember, in case they are responding, they will respond through filing either an Answer to the Complaint or a Motion to Dismiss.
- Court’s recent order related – Deeded easement related – #2
- Wording in my previous proposed order and judgment needs correction to indicate the quiet title claim while obeying this deeded easement. Required bullet-pointed wording required to be added to current documents. Bell Systems successor companies have underground cable running and a couple of man-holes exist in the subject property and I believe they are abandoned and easement for any of them from Railroad property into the subject property is required as per the court order about 10 years back. I can fill in the blanks for court order number/instrument number, date etc.
Answer
You will need to file an Amended Complaint to reflect the easement. According to Cal. Code Civ. Proc. § 472(a), you are entitled to amend your Complaint once without requiring the court’s permission at any time before an Answer is filed. Therefore, in your case, you shall proceed to amend the Complaint (including the Order) to reflect the easement, then file the amended Complaint.
The wording to use for the amended Complaint may be:
- “The property is subject to the following encumbered by an easement deed by court order issued in and around 2014.
- Under the easement, Bell Systems successor companies have underground cable running and man-holes exist in the property.”
- Court’s recent order related – evidentiary hearings, including witness testimony and complete authentication of the real property records – #3 Most help needed
- Can I get complete step by step procedural details about these aspects, like including the sequence forms I need to file with the court? Here I think I can get the certified copies of the property records from the county. Need the guidance on the exact court form to use to submit this document. Does authentication of real property records mean, just submitting the certified copies from the county to the court? Please elaborate the witness testimony procedure in QT / AP case (see related set of questions below).
Answer
Getting an exhibit admitted into evidence is a process. I shall describe the process below.
First, make two copies of each certified document. One copy will be for the Court and the other for the Defendant.
Next, present the documents to the Court. Please note that if the documents are certified, the attestation or certificate must state in substance that the copy is a correct copy of the original, or of a specified part thereof, as the case may be. See Cal. Evid. Code § 1531.
There is no specific form to be filled to present document evidence in Court. However, you will need to contact the court clerk and inquire from them how to mark your exhibits. Some courts will want you to mark each piece of evidence with an exhibit identifier. (For example, attach a sticker labeled “Exhibit 1,” “Exhibit 2”, etc. – OR “Exhibit A,” “B,” etc. The clerk can tell you which to use.) Please also note that some courts will mark the exhibits in court. Therefore, in your case, you will need to contact the court clerk and inquire of how to mark your exhibit(s). You should also note that some documents have confidential information, such as bank account and social security numbers. You may ask the court to black out this information and to keep sensitive documents confidential.
Next, the Court will set a hearing date to consider the evidence (evidentiary hearing). Here, either you or your witness must testify about the document to show that the document is relevant to your case and is authentic. This is called “laying the foundation” of the evidence. Please note that you will need to select the proper witness you will be calling to lay the foundation for the exhibit. You should look for witnesses who have the best personal knowledge of the document. For example, if you are trying to use a photograph, an ideal witness to have lay the foundation for the photograph would be the person who took the photo.
To call a witness to give testimony in California court, you can fill in Civil Subpoena Form SUBP-001- Civil Subpoena, or Form SUBP-002- Civil Subpoena (Duces Tecum), if you also want the witness to bring papers to the hearing or trial. Under California Evidence Code, Section 775, the court may also call witnesses on its own motion or on the motion of any party and interrogate them as if they had been produced by a party to the action.
Please note that you have the option of preparing your witness for court. You may prepare your witness for court in the following way: write out possible questions that you may ask the witness; practice the questions with your witness; talk with your witness about what questions the judge might ask him or her; remind your witnesses that they must tell the truth. It is ok for them to say, “I don’t know” or “I don’t remember,” if that is the truth. You may also want to write down ahead of time why you want to offer this witness or exhibit. Then, when the judge asks, you can answer even if you’re nervous.
On the day of the evidentiary hearing, you may use the following procedure to question the witness about the evidence: First, you will ask the court, “Your honor, may I approach?”; Show the exhibit to the witness; Question the witness in order to lay the foundation for the exhibit. Some of the questions you may ask include do you know what this is? How do you know it? Do you know who prepared that document, and so on; Offer the exhibit into evidence by saying “Your honor, I move that [exhibit letter or number] be entered into evidence”; Address any objection if requested by the Judge.
Authentication of a writing means the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or the establishment of such facts by any other means provided by law. A party must therefore authenticate a document for it to be admissible, that is, there must be evidence to show that the document is what its proponent claims it is. See Cal. Evid. Code §§ 1400, 1401, and 1402. Authentication of documents may be done by a witness in an evidentiary hearing (as stated above).
You should also note that some documents are self-authenticating and are therefore admissible without additional evidence. These documents include any document in custody of a public entity; Photographic Copies and official writings affecting property. See Cal. Evid. Code §§ 1400, 1600-1605.
- Another remark from the judge in last hearing meeting was about the admissible certified copy of the documents. For the last hearing meeting, as the judge asked for evidence, I just sent printed copies of various things like title, summons, proof of services, some of my photos about my work / possession on the subject land. The judge has cited this authenticated title report in the written order, but, for Prove up hearing of default judgment, what are all the important documents/evidences that needs a certified copy? Is it just the title report and no other document needing certified/authenticated copies? Which type of document I should file along with a certified copy of the title report. Need guidance on the “authenticated through testimony” part.
Answer
In a quiet possession case, you will need to provide evidence that you have been in possession of the property for a certain period of time without any interference from others.
The first category of documents that will be needed are self-authenticating documents. Self-authenticating documents need no witness testimony. For instance, the Title Report falls among the documents that are self-authenticating under Cal. Evid. Code § 1600. Certified copies of property records from the County are also self-authenticating under said section 1600.
The next category of documents that are needed are proofs of payment of utility bills, property tax receipts, mortgage statements, lease agreements, and any other documents that show your use and possession of the property. The documents in this category need certification and/or authentication.
I have already provided information on authenticating documents through testimony.
- Witness related, #3 above
- What is an alternative to in-person witness?
Answer
Whether a witness appears in person or not depends on the type of hearing and the jurisdiction. In your case, there is a need for in person authentication, to testify as to the truthfulness of the contents of the documents you present as evidence.
In the foregoing paragraphs, I have mentioned that you can either fill in Civil Subpoena Form SUBP-001- Civil Subpoena, or Form SUBP-002- Civil Subpoena (Duces Tecum), if you also want the witness to bring papers to the hearing or trial. If you fill SUBP-001, the witness will not need to come to Court. Instead, the witness will only need to produce the document specified in the Subpoena.
- What happens if no witness, at all?
Answer
Failure to have a witness testify in your case will weaken your evidence, and you may end up being denied the relief in your Complaint.
- How many minimum witnesses and how many maximum and recommended number of witnesses?
Answer
California Evidence Code section 723, states that the court may, at any time before or during the trial of an action, limit the number of expert witnesses to be called by any party.
With regard to ordinary (non-expert) witnesses, there is no required number of witnesses one may call. The number of witnesses you may call depend on the amount of evidence you are using in your case.
- How can we make use of any recorded videos, other written statements from others as witnesses (if possible)?
Answer
Yes, it is possible to introduce other forms of evidence including electronic evidence. To rely on electronic evidence, you must meet the following requirements: the electronic evidence must be obtained in compliance with California Electronic Communication Privacy Act (Penal Code §§ 1546.1 and 1546.2); it must have four components: 1) it must be relevant. 2) it must be authenticated. 3) its contents must not be inadmissible hearsay; and 4) it must withstand a “best evidence” objection.
Written statements must be authenticated. See Cal. Evid. Code § 1400. Like I said above, there are many ways to authenticate documents. For example, it can be authenticated by a testimony of someone who saw the witness statement being written, Cal. Evid. Code § 1413, introducing a handwriting expert to compare the documents, Cal. Evid. Code § 1415.
- Can family members like my wife be a witness?
Answer
Yes. However, while it is okay to have a friend or family member be a witness for you, it is always best to have someone who does not favor one side over the other.
- Can an approved, paid and registered personnel visit and certify as a witness?
Answer
Again, anybody can be a witness. You must only be sure that they have personal knowledge of the facts in the document.
- What kind of knowledge do the witnesses need to have? Complete knowledge on 5 years of possession or just based on one recent visit?
Answer
There are two categories of witnesses. On one hand, we have ordinary witnesses, and on other hand, we have expert witnesses. Both witnesses can authenticate documents. Expert witnesses in California are persons who have special knowledge, skill, experience, training, or education on the subject to which their testimony relates. There is also no specific number of years attached to the definition of an expert witness. One must only have special knowledge, skill, experience, training, or education on the subject matter.
You should also note that an ordinary witness shall not be permitted a person to perform any act for which a license is required unless the person holds the appropriate license to lawfully perform that act. CA Ev. Code § 730 (2021).
- Is there a court document to be filed for each witness who agrees to testify? If so, what document? Typically how long each witness is asked to testify? What kind of questions could be there?
Answer
In California, a witness statement is a written statement of testimony that a person could and would give to the court if they were called as a witness. However, not every witness files a witness statement in California. If that statement is intended to provide evidence or first-hand information to a court of law in California, the statement is termed a declaration and must be made under penalty of perjury.
The length of time a witness is required to testify is dependent on the time allocated by the court for the evidentiary hearing. Also, witnesses take varied lengths of time depending on the nature of their testimonies and objections raised to the testimonies.
- Adverse possession attempts on existing adverse possession
- Can others trespass into land that I currently adverse possess? How to avoid them?
Answer
Yes. Nothing prevents trespassers to enter adversely possessed land. That notwithstanding, try as much as possible to prevent the trespassers from accessing the property. Please note that since there is an existing case in court, the court has still not yet declared you as having full rights to completely lock out every other person from the land. However, according to California Code of Civil Procedure (CCP § 325), the land is deemed to be possessed and occupied when the land is protected by a substantial enclosure, and it has been cultivated or improved. Therefore, endeavor to enclose the property to, at least, limit the trespassers.
Also, please note that if the property is encumbered by an easement, you just have to allow people to access the property specifically for the purposes specified in the easement.
- Can another neighbor to the currently adverse possessed property object to it in any way in the court? If so, what could be possible reasons they could have?
Answer
No, the case in court is only between you and the former owner of the property. The only way a neighbor can get involved in the case is if they are used as witnesses by the Defendant. In case they are used as witnesses by the Defendant, the neighbor will only get involved in the case in that capacity alone.
- When I asked one of the neighbors to be the witness to the hearing telling them for the first time that I’m doing the adverse possession scenario, they started becoming hostile and trying to further adversely possess the one I currently possess/grab parts of the land. So far they have witnessed me possess it / use it but have no objections, as they didn’t know about adverse possession and they have been thinking it’s mine. How can I be vigilant and get protection from such people till the court finalizes the case?
Answer
I have already stated above, the measures you may use to limit the trespassers from accessing the property. For instance, you may try to fence the property. Additionally, you may file a Temporary Restraining Order in court, to prevent them from accessing the property until the case is finally determined.
To file an TRO in California in your circumstances, you need to file Form CH-110. An injunction issued shall have a duration of not more than three years. See California Rules of Court, Rule 3.1150. At any time within the three months before the expiration of the injunction, you may apply for a renewal of the injunction by filing a new petition for an injunction under this section.
- Can I invoke privacy, trespass, vandalism rules/protection/laws on someone else related to the current adverse possessed land (as a possessor and not as legal title owner yet)?
Answer
You may only file for Temporary Restraining Order pending a determination of the case. Remember, the issue of right to the property is still under determination in the pending case. Therefore, the court can only grant the said injunctive relief, to protect you from being homeless, until the case is determined with finality.
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