Witnesses need to served in a reasonable time for them to appear. Since a subpoena is an order, not an invitation, the witness has no choice about appearing, and a bench warrant can be issued for their arrest if the fail to appear.
Most judges presiding over most hearings don't accept written testimony in lieu of live testimony, since the witnsses aren't "unavailable" within the meaning of the Evidence Code, and the opposing side has the right to cross-examine witnesses, which they can only do with a live witness.
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You don't indicate the type of "hearing". Is it the trial? Or is it a motion?
For trial, the trial subpoena just needs to be served on the witness within a "reasonable" time.
For trial, you cannot use a declaration in lieu of live testimony, except in limited jurisdiction cases. In California limited jurisdiction civil cases (where the amount in controversy is less than $25,000), a declaration of an authorized agent is admissible in evidence if the declarant would otherwise be a competent witness at trial pursuant to California Code of Civil Procedure section 98(a).
However, this option is not available to you if the trial is in 4 days. California Code of Civil Procedure section 98(a) requires that the witness declaration be served at least 30 days prior to the trial, together with a current address of the person making the declaration if within 150 miles of the place of trial, and a representation that the declarant is available for service of process (i.e., a civil trial subpoena) at that place for a reasonable period of time during the 20 days immediately prior to trial.
Thus, if the opposing party has served a Section 98 declaration, the best strategy is to subpoena the witness to appear at trial, thereby permitting an opportunity for cross-examination.
If the witness is not available for subpoena or fails to appear for trial after having been properly served with a subpoena, then the opposing party can ask the court to exclude the Section 98 declaration. Without evidence, the court would most likely rule in favor of the opposing party.
If your case is an unlimited jurisdiction case, a declaration or affidavit would not be admissible for purposes of trial because it is hearsay.
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.
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