First of all, I presume that this is a limited jurisdiction (under $25K) case, since a Section 98 declaration in lieu of live testimony can only be used in a limited jurisdiction case.
It is quite common for the declarant in a debt collection case to state in a Section 98 declaration that the attorney's law office is authorized to accept service of a subpoena.
You can't object on this ground, even if the declarant is out of state. Your hope is that the witness fails to show up at trial, in which case, you can argue to the court that the plaintiff failed to prove its case and have a judgment rendered in your favor. Good luck!
Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This Avvo.com posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.
If this is a trial subpoena, it is not enforceable against witnesses located outside of California. The attorney can agree to accept service on behalf of his client or the client's witenss. If this witness is essential to the other party's ability to prove their case, in all likelihood the attorney will make arrangements for the person to attend trial. If this witness is employed by a the other party, you can serve up to 25 days before trial a Notice to the Party to produce persons to testify or produce documents at trial, or within 10 days of trial, serve a notice to appear at trial, identifying the party or its employee you wish to appear. Add 5 days if you serve these papers by mail on the party's attorney instead of delivering them in person. The court may find the Notices are not sufficient to compel the party to produce someone from out of state, but the party will have to produce someone in response to the Notices. You should discuss with the attorney when the witness will appear so that you will be able to examine the witness at trial. The court expects parties to work out logistical issues like this in advance of trial.
the rule requires that the declarant inder CCP 98, be available for service. If the declarant has authorized the atty to accept service, that is acceptable. The law requires there be a means for the deft like you to serve a subpena on the declarant that requires the declarant to appear. This rule means you dont have to try to serve some one out of state. For example, corporations have agents designated to accept service. if declarant doesnt show, you shuld win. if declarant shows, you have to defend on other basis.