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Can the plaintiff call the defendant and defense witnesses as witness' in the civil trial?

Glendale, CA |

I am pro per and wanted to know the rules on such. Trial is next month and I am just trying to get my facts together.

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Attorney answers 2


Yes. If you are the plaintiff, you can call the defendant as a witness. It would be prudent if you served a Notice to Appear At Trial pursuant to Code of Civil Procedure section 1987 (b) and 1987 (c).

You can also call the defendant's witnesses as your witnesses if you subpoenaed them to appear at trial OR if they are present in the courtroom.

Frank W. Chen is licensed to practice law in the State of California. The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult your own attorney.


You can call the defendant as a witness. You do not need to serve the defendant with a subpoena. Instead, you can serve a notice to appear at trial pursuant to CCP 1987(b) or 1987(c). CCP 1987, povides, in pertinent part, as follows:

"(b) In the case of the production of a party to the record of any civil action or proceeding or of a person for whose immediate benefit an action or proceeding is prosecuted or defended or of anyone who is an officer, director, or managing agent of any such party or person, the service of a subpoena upon any such witness is not required if written notice requesting the witness to attend before a court, or at a trial of an issue therein, with the time and place thereof, is served upon the attorney of that party or person. The notice shall be served at least 10 days before the time required for attendance unless the court prescribes a shorter time. If entitled thereto, the witness, upon demand, shall be paid witness fees and mileage before being required to testify. The giving of the notice shall have the same effect as service of a subpoena on the witness, and the parties shall have those rights and the court may make those orders, including the imposition of sanctions, as in the case of a subpoena for attendance before the court.

(c) If the notice specified in subdivision (b) is served at least 20 days before the time required for attendance, or within any shorter period of time as the court may order, it may include a request that the party or person bring with him or her books, documents or other things. The notice shall state the exact materials or things desired and that the party or person has them in his or her possession or under his or her control. Within five days thereafter, or any other time period as the court may allow, the party or person of whom the request is made may serve written objections to the request or any part thereof, with a statement of grounds. Thereafter, upon noticed motion of the requesting party, accompanied by a showing of good cause and of materiality of the items to the issues, the court may order production of items to which objection was made, unless the objecting party or person establishes good cause for nonproduction or production under limitations or conditions. The procedure of this subdivision is alternative to the procedure provided by Sections 1985 and 1987.5 in the cases herein provided for, and no subpoena duces tecum shall be required."

In sum, you need to serve the notice to appear on the defendant at least 10 days before the appearance (plus 5 additional days if served by mail). If you want the defendant to both appear and to bring documents with him to trial, you need to serve the notice to appear and produce documents at least 20 days before the appearance (plus additional 5 days if serv ed by mail). The notice needs to describe the documents to be produced.

As for non-party witnesses (including defense witnesses), you need to serve such witnesses with a subpona upon "reasonable" notice (usually at least several day before the appearance). If you are condfident that the defense will call these witnesses, you can take the chance they will show up at trial even if you don't serve them with a subpoena.

This response is for information purpose only and does not constitute a legal advice. This response does not create an attorney-client relationship.