How Can I Subpoena a Witness?
In California, you can ask the court to order a witness to show up at the hearing to testify.
Normally you would just ask the person to appear at the hearing as a witness. But your witness may need proof that he or she is testifying for you in court on a specific day in order to get approval to miss work. Or you may really need testimony from a reluctant witness.
TIP: You probably would not want to make a witness go to court unless he or she has already agreed to testify. Dragging someone into court who doesn’t want to be there could set him or her against you. See if you can get the evidence you need from another source before getting a subpoena for a reluctant witness.
A “subpoena” is a court order that says that your witness has to go to court. It can also be used to tell someone to send or bring specific documents or items to court for your hearing. There is a special court form to use for these orders. (Use the same form for witnesses, documents or items.)
To subpoena a witness
Step 1. Get your court form. Use:
- Small Claims Subpoena for Personal Appearance and Production of Documents and Things at Trial or Hearing and Declaration (Form SC-107)
- If you are requiring a person to go to court, fill out page 1 only.
- If you are also requesting the person to take documents, complete pages 1 and 2.
- In either case, you will fill out page 3 later.
NOTE: You need to know the name of the witness who you want to go to court.
Step 2. Take the form to the court (the court “issues” the subpoena).
Take the Subpoena (Form SC-107) to the court filing window. The clerk will look at the form and may ask you a few questions. If everything is in order, the clerk will sign and stamp the original form and give it back to you (called “issuing the subpoena”).
Make 2 copies of the completed pages. Make one copy for your files and one copy for the person you are subpoenaing.
Step 3. Give a copy (not the original) of the form to the person being subpoenaed at least 20 days before the court hearing.
Any adult – even you -- can deliver the subpoena to the person you want to be your witness. However, it must be by personal service. You cannot mail the subpoena to the witness, or use any other form of service.
Step 4. Inform the court that the copy was provided to the witness.
After the subpoena has been given to the person you want to be your witness, have the server (you or someone else) fill out page 3 of the original of Form SC-107. This page is called: “Proof of Service of Small Claims Subpoena for Personal Appearance and Production of Documents and Things at Trial or Hearing and Declaration.”
- Make a copy of page 3 for your files.
- At least 5 days before your trial hearing, return the entire original Subpoena to the court.
NOTE 1: Witnesses can ask for $35 a day, plus 20¢ a mile each way, at the time you serve the subpoena. Be prepared to pay the witness fees. Make a receipt for the witness to sign, if possible.
- Form SC-107 lets the witness know that they have a right to these fees. One day’s fees must be paid when you serve the subpoena if the witness asks for them.
- In small claims court, the hearings only last one day. So if the witness asks for the money and you don’t pay it, then the witness does not have to show up at your hearing.
- If you win the case, you may be able to recover your witness fees from the other side. You will have to ask the court at the end of the hearing to order the losing side to pay these fees.
NOTE 2: Different fees apply to witnesses who are police officers or firefighters. The fee for them is $150 or higher per day. Serve the subpoena and pay the fees to the precinct or fire house where the officer or firefighter is stationed.
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