Witnesses in Small claims - Written Declaration vs Verbal Testimony

What is the name of your state?California

We purchased our home in Oct. 2003. We recently discovered termite damage in the lower level walls. Repair is neccessary & will cost $1980. We have filed a small claims suit against the previous owners for nondisclosure.

The house was previously used as a rental & the tenant who resided in it for 12 years told us that he informed the previous owners of the termite problem about 10 years ago. Like most maintenance issues they ignored the problem. The tenant sprayed Raid around the window where termites were swarming out of the wall & eventually they stopped coming out of the wall, but nothing was done to adress the termites living in the wall.

He originally agreed to be a witness for us and provide a written declaration, but is now reluctant due to fear of reprisal form the previous owners. I obtained a subpoeana today from the court but I have not served it.

I know his preference is to not go to court, and I feel a little bad about subpoenaing him. If he provides a written declaration, I will not serve the subpoeana. Does he have to send the declaration to the court himself, or can he give it to me to bring to court with me? Will the court consider a written declaration with as much weight as they would with verbal testimony? Court date is June 2, so I believe would need to serve the subpoeana today or tomorrow. Any advice?

My response:

You better use that Subpoena. Judges don't accept written statements for many reasons, some of which are:

1. It's hearsay;

2. Cannot ask questions of a piece of paper;

3. Cannot evaluate demeanor or motive.

The Evidence Code § 1235 hearsay exception is premised on the fact the witness who made the prior out-of-court statement is present in court and subject to cross-examination, thus overcoming the unreliability problem with hearsay evidence (trier of fact's inability to judge declarant's demeanor, perception, memory and veracity). [People v. Zapien (1993) 4 Cal.4th 929, 953, 17 Cal.Rptr.2d 122, 132]

"The reasons for the (witness') change of face, whether forgetfulness, carelessness, pity, terror, or greed, may be explored by (both sides) in the presence of the trier of fact, under oath, casting light on which is the true story and which the false. It is hard to escape the view that evidence of a prior inconsistent statement, when declarant is on the stand to explain it if he can, has in high degree the safeguards of examined testimony." [People v. Zapien, supra, 4 Cal.4th at 953, 17 Cal.Rptr.2d at 132-133 (emphasis and parentheses added); see also California v. Green (1970) 399 U.S. 149, 150, 90 S.Ct. 1930, 1931--no constitutional impediment to admission of prior inconsistent statement as substantive proof simply because witness-declarant not subject to cross-examination at time statement made]

Additionally, in many cases, the prior inconsistent statement is more likely to be true than the testimony of the witness at trial because it was made nearer in time to the matter to which it relates and is less apt to be influenced by the controversy that gave rise to the litigation. [See Ca Evid § 1235, Comment; and People v. Zapien, supra, 4 Cal.4th at 953, 17 Cal.Rptr.2d at 132-133]

"[T]he possibility of falsehood adheres in nearly all testimony." Since the hearsay declarant must testify in court and be subject to cross-examination, the trier of fact has a full opportunity to evaluate the testimony and judge the declarants' credibility. I.e., the witness-declarant's credibility is for the jury to determine. [People v. Zapien, supra, 4 Cal.4th at 954, 17 Cal.Rptr.2d at 133 (emphasis added)]

You're just going to have to "get past" how you feel about subpoenaing your witness, and pay him his statutory witness fees.

IAAL

what kind of reprisal does he fear from a landlord he no longer rents from?

did you have the house inspected for termites before purchase? If no, why not?

A new twist....

Thanks for the subpoeana advice. I went to the clerk this morning & served the subpoena this afternoon. The former tenant took the news much better than I expected.

I did ask him (a hundred different ways) what he thought they might sue him for, but he couldn't come up with anything. He's seems to mostly be worried that they'll find something, however frivilous, and cause him more hassle even if they were destined to lose whatever case that may be.

We did not have a pest (termite) inspection performed before we bought the house, because the sellers had one performed a few weeks earlier & our agent told us it was standard practice to accept the report they provided. Since then I have learned that it's not a good idea to ever do that again.

OK, so here's the new twist:

The previous owners have filed a claim of defendant (counter-suit) against us for $2800. Right after we moved in, we had a couple of back-to-back clogged drains. Then, last December, when we were clearing out the backyard, we found a gaping hole in the sewer pipe in an area right next to the house that had been covered with overgraowth and blocked off by a fence support. Raw sewage flowed out of the hole everytime we ran a faucet or flushed the toilet & there was a huge mess of toilet paper and everything else piled up around the pipe.. We found out, from this same tenant, that the drains backed up regularly & he would have to call Roto-Rooter. He'd deduct the cost of Roto-Rooter from the next month's rent & send the invoice with his rent check. (Therefore, teh owners knew there was a problem). We had an attorney send a demand letter to the previous owner's & they sent us a check for $2800 to have the pipe replaced. In the closing of the letter that accompanied their check, they stated that they consulted their attorney and real estate agent & were told that they were not responsible, but they were paying anyway just to resolve the situation. Now in their counter-suit, they are alleging that they only paid because they felt "intimidated and under duress" because of our attorney's letter & they want the money back because they feel that it wasn't their responsibility to have the pipe fixed.

Their claim sounds completely ridiculous to me, but I am not a lawyer, so does anyone have an opinion on whether they stand any chance at being awarded the $2800 back to them?

What if....?

I just mailed papers to file a suit in FL and happened to get in touch with an individual who had a similar "conversion" situation occur with the same defendant, prior to mine. We lost contact due to her move with her new husband to Hawaii. Can she assist me as a witness of some sort, though not travel from Hawaii to FL to do it? Can I help her in any way or could she along with her damages and evidence get "tacked on" so to speak to my case? Help of any form would be greatly appreciated! Thanks!

Ally