Q: motions in CA and pre-trial strategy

[Iamserved]

A summary up to this point and thanks thus far to the members of this forum for the great advice and legal roadmap.

Sued by PRA amount >$10, Breach of Contract, Money had and received, Account Stated. Filed answer. I sent discovery and interrogatories and received boiler-plate non-responses. They sent discovery essentially asking me to hand them evidence and I returned appropriate non-responses. I sent request for BOP and received no response. Sent meet and confer and received no response. Had case management hearing and trial date is set for April.

Preparing a motion to compel for BOP and debating whether or not to file a motion for leave to file cross-complaint (I didn't have the knowledge or awareness to do this in my original answer). In PRA's claim (breach of contract) they allege to have entered into a written contract with me and extended credit or financing (as though they were the OC). This seems to me a blatant misrepresentation of the nature of the debt and an FDCPA violation. Not sure if a counter-claim would muddy the waters or possibly steer toward the potential of dismissal with prejudice. My thought is that IF they have no documentation and were inclined to dismiss after my MTC, by counter-claiming, I might have some leverage to get them to dismiss with prejudice.

So far, the attorney has not provided a shred of evidence to support their claim and I'm not sure what tricks he might have up his sleeve. Right now I feel like I'm in the dark as to what they could bring to trial - outside of the MTC is there anything else I should be doing proactively?

[helpme]

Originally Posted by Iamserved

I sent request for BOP and received no response. Sent meet and confer and received no response. Had case management hearing and trial date is set for April.

Did you mention that Plaintiff hasn't responded to your BOP request and meet&confer letter during your cmr hearing?

Originally Posted by Iamserved

Preparing a motion to compel for BOP

Work on this first.. if you're for sure you will file a mtc BOP get your hearing date set. I believe you will need 16 days + 5 days mailing prior to hearing to serve Plaintiff. Or you can serve your own discoveries: Demand for Documents. The Pros here is if they don't respond they waive their rights to object and work privileges , then you can file MTC Discoveries with Sanctions for no response. The Con is if Plaintiff does respond with objections and docs are insufficient, you will first write a m&c letter responding to each of their document objections and deficiencies. This will be your template for the MTC discoveries. Calawyer has an explanation on this I believe on jenn408 thread.

Originally Posted by Iamserved

My thought is that IF they have no documentation and were inclined to dismiss after my MTC, by counter-claiming, I might have some leverage to get them to dismiss with prejudice.

By filing your counter, I believe this will just not allow Plaintiff to dismiss prematurely not the other way around.

Originally Posted by Iamserved

So far, the attorney has not provided a shred of evidence to support their claim and I'm not sure what tricks he might have up his sleeve.

before trial they will need to supply all the evidence via I believe CCP98 or 96 don't quote me. Again start your discoveries.

Originally Posted by Iamserved

Right now I feel like I'm in the dark as to what they could bring to trial - outside of the MTC is there anything else I should be doing proactively?

Google CACI Jury Instructions or do an advance search on this forum, Seadragon posted the link on someone's thread. REad up on VLDCA/1111girl/DaFish/Scientif/Chiquita55 posts. They have all one and everyone has posted what they need to get ready for trial.

Hope this helps...

[legaleagle]

Why not hit them with a summary judgment motion right off? Discovery is always the sticking point with these creeps. You gave them ample time to produce what they had, they failed. I believe the MTC is optional. Why bother? Lay it out for the judge that they have nothing, produced nothing, and cannot produce anything, therefore there is no material fact in dispute, which entitles you to judgment as a matter of law. You might not get this, but it's worth a try.

[Iamserved]

Thanks for the reply helpme,

Originally Posted by helpme

Did you mention that Plaintiff hasn't responded to your BOP request and meet&confer letter during your cmr hearing?

I began to mention this, but the judge cut me off short. This wasn't a conference by any means, nor what I expected. The rent a lawyer just indicated they were ready to go to trial and the date was set and it was over in roughly two minutes.

Originally Posted by helpme

Work on this first.. if you're for sure you will file a mtc BOP get your hearing date set. I believe you will need 16 days + 5 days mailing prior to hearing to serve Plaintiff. Or you can serve your own discoveries: Demand for Documents. The Pros here is if they don't respond they waive their rights to object and work privileges , then you can file MTC Discoveries with Sanctions for no response. The Con is if Plaintiff does respond with objections and docs are insufficient, you will first write a m&c letter responding to each of their document objections and deficiencies. This will be your template for the MTC discoveries. Calawyer has an explanation on this I believe on jenn408 thread.

I am preparing this now and have found some good examples to start from and advice from CALawyer on where to look for sample docs. At the beginning of the process (9-12 months ago??) I sent a demand for Documents and that is when the attorney replied with boiler-plate answers and claimed they were still researching the case and reserve the right to provide more documentation later. I believe from my readings here that I have past the time to MTC Discoveries from my first set of demand for production of documents and interrogatories.

That is why I'm now going to file MTC BOP to hopefully force them to show some sort of evidence to their claim.

Originally Posted by helpme

By filing your counter, I believe this will just not allow Plaintiff to dismiss prematurely not the other way around.



before trial they will need to supply all the evidence via I believe CCP98 or 96 don't quote me. Again start your discoveries.



Google CACI Jury Instructions or do an advance search on this forum, Seadragon posted the link on someone's thread. REad up on VLDCA/1111girl/DaFish/Scientif/Chiquita55 posts. They have all one and everyone has posted what they need to get ready for trial.

Hope this helps...

I will scour the boards more and read up on preparing for trial as you suggested. I'm just getting back in to this after a hiatus. I do need to get a motion hearing set as you suggested.

Getting back to my original question regarding breach of contract, I've been studying similar cases on the Alameda County site with the same Plaintiff (yet different attorneys in most cases). Most of those claims were filed with CA forms while mine was a written pleading. When they did claim breach of contract it was always indicated that the account was sold to them (PRA) and the predecessor established the contract (and I assume, they assume the contract when it is sold to them).

In my case, there is no mention of being an assignee of the debt or the account being sold to PRA - they are simply claiming that I entered into a written agreement with PRA and they extended credit to me on my request with my agreement to make monthly minimum payments...etc.

As I interpret this lawsuit, I'm defending against an alleged contract that has never existed and there's no way they could ever provide evidence of a contract between PRA and myself which forms the basis for their claims of money had and received and account stated.

I would like to hold them to this false misrepresentation of facts because there is no way they could prove existence of a contract or account agreed to between parties. Is there a way they could now bring in the fact that they purchased this account and that they weren't the original creditor (like through an amended pleading)?

[helpme]

I will pm you in a few minutes. I have to finish filling out my cm-110 and send it off.

[Iamserved]

Originally Posted by legaleagle

Why not hit them with a summary judgment motion right off? Discovery is always the sticking point with these creeps. You gave them ample time to produce what they had, they failed. I believe the MTC is optional. Why bother? Lay it out for the judge that they have nothing, produced nothing, and cannot produce anything, therefore there is no material fact in dispute, which entitles you to judgment as a matter of law. You might not get this, but it's worth a try.

Thanks for the reply legaleagle. That's what my instincts have been telling me but through these readings I guess I came to the conclusion (maybe mistakenly) that you kind of have to play the full game. They'll come back with a motion to strike SJ requesting more time to research, the judge will side with them. What happens as far as timing if I MSJ and the judge doesn't grant it - then I'm short on time to MTC BOP? Will I be able to request more time after a potential denial to Motion and/or push the trial date out?

I will scour the board for some sample MSJ in CA. I completely agree that they are not prosecuting the case and it's time to put an end to it...

[chiquita55]

I would send the BOP and ask for answers on everything that could possibly support their claim. #1 would be the signed agreements etc. Also put something in the BOP that if any answers are left off that they cannot use those items at trial.

Also, a couple of weeks before trial (look up the court rules on how soon it has to be done, I did it too late) send them a ccp96 asking for details on everything they plan to use at court. documents, witnesses etc. They have to send it. Then you will know what you are up against. In your BOP you should ask for copies of native documents. They probably don't have those and if they don't you can use the Vin Veehees case against them.

[Iamserved]

Thanks for all the replies and helpme's pm's with some good specific advice.

After legaleagle's suggestion, I was gung-ho on the idea of going for a MSJ (although a little daunted by drafting a thorough motion...), was reviewing cccp and discovered that a Summary Judgement needs to be served 75 days prior to the hearing. Am I reading this correctly? With a trial date set for early April, looks like I will have to go the distance.

Guess I fell asleep at the wheel or at least went into denial for a while this case was going on...

I will pursue a motion to compel BOP, file the cccp96 and start boning up on how to refute any evidence they do come up with...

[1stStep]

Pursue the BOP, and get another hearing put on calendar...hopefully you sent a meet and confer...

Then yes, at some point serve them a CCP96. I think they will try to send you a CCP98 Declaration at the last minute - so keep your eyes open for it.

Yes, you have to serve an MSJ pretty fat out. I don't think you have quite enough yet.

[Seadragon]

PRA has a roving "witness" who has no personal knowledge. Pm VLDCA for the name. you are going to need the following for trial.

one is a subpoena for the witness their CCP 98 declarant when you know.

two send them form interrogatories there are some discussion here about it very detailed and the boxes to check off.

three send admissions while you still can.

prepare your position in this matter and write a trial brief so you have your roadmap for success.

also file not before 45 days and not after 30 days your own CCP 98 countering everything they say.

so you are in the 4th quarter so you have to work in the firm deadline zone.

subpoena the person verifying their discovery responses, and if there was some jankiness in the service of the process, subpoena the process server for trial. You can really get into how they are dirty and it gathers intel into the agreements for the subpoena company. If you can question that guy ie what address did they give you for service? Why did you serve it over here instead? that kind of thing.

Your trial strategy should have already been developed right now but you have time.

It is 4 hrs. a day until you win at trial for now on no excuses PRA has lost to Pro pers before and have tightened up their trial actions. That witness that was Gutted by VLDCA has most likely been "coached up to speed by now" so you will have to break the connection between her and her coach"the lawyer" so 1 week before trial move for sequestration of the witness having them show to court before trial likely having them show at 8:30 am at the court for sequestration. That will prevent some coaching but if the do she will forget what she was told to say and also demand the witness box to be used.

these are steps you should take to win.

[Iamserved]

Thank you Seadragon for this valuable info - especially on the "roving witness" technique. I undoubtedly have a great deal of research on work ahead of me.

I was about to prepare a motion to compel BOP but am unable to obtain a hearing prior to the trial date. That discovery led me to to more research and think about an ex parte motion order shortening time to serve notice. Can I be successful with an ex parte motion(s) - motion to dismiss and/or motion to compel.

When I went into the CMC I had assumed that was where we would discuss the matter of discovery being incomplete - the attorney's lack of response to BOP. The judge talked over me and told me if I needed legal assistance to look into the self-help office... He didn't seem partial to a pro se litigant.

My motion to dismiss would be on the grounds that there is no material fact to prove the claim, lack of standing (PRA is not an issuer of credit and there is no way they could provide a contract or show an account history between the parties), lack of prosecution (they provided no evidence/answers whatsoever in my initial discovery - request for production of documents, interrogatories, admissions; they are in breach of the law for not responding to request for BOP. I have nothing to base a defense upon and they have provided nothing to support their claim.

I would need some help crafting such a motion. My other question would be whether you can present two motions at an ex parte hearing. If the judge declined a motion to dismiss, can you then present a motion to compel(BOP)? Or possibly, a motion in limine to exclude the items listed in BOP since they have not responded?

[mommamia3]

"After legaleagle's suggestion, I was gung-ho on the idea of going for a MSJ (although a little daunted by drafting a thorough motion...), was reviewing cccp and discovered that a Summary Judgement needs to be served 75 days prior to the hearing."


Is it 75 days prior to your CMC or 75 days prior to trial? I already had my CMC where I said nothing, the 'rent-a-lawyer' that the law firm representing the Plaintiff sent said they were prepared for trial even though they haven't even properly responded to my BOP request. They haven't been able to properly identify they kind of alleged account or the alleged account number they have brought suit on. My trial begins the beginning of June. Am I in position to file a MSJ rather than MTC BOP, etc?

[Iamserved]

Originally Posted by mommamia3

"After legaleagle's suggestion, I was gung-ho on the idea of going for a MSJ (although a little daunted by drafting a thorough motion...), was reviewing cccp and discovered that a Summary Judgement needs to be served 75 days prior to the hearing."


Is it 75 days prior to your CMC or 75 days prior to trial? I already had my CMC where I said nothing, the 'rent-a-lawyer' that the law firm representing the Plaintiff sent said they were prepared for trial even though they haven't even properly responded to my BOP request. They haven't been able to properly identify they kind of alleged account or the alleged account number they have brought suit on. My trial begins the beginning of June. Am I in position to file a MSJ rather than MTC BOP, etc?

mommamia3,

I'm still interested in a reply from some of the attorney's on the board on this matter. I believe the timeline is 75 days prior to trial - which I am well beyond. If I'm correct, the only way to make a motion at this point is an ex parte motion, order shortening time to serve notice. Is a MSJ applicable here and can a MSJ be made in an ex parte motion? Plaintiff claims in their Breach of contract claim to be the issuer of credit and to have created a contract between us? It is a material fact that PRA is not in the business of issuing credit - nowhere in their claim do they state they are an assignee, third-party or otherwise purchased the alleged account.

In lieu of an MSJ approach, I was planning an exparte motion to compel BOP but am wondering if it might be a better strategy to lay low and do a motion in limine at trial to exclude all items listed in the BOP (request for BOP was properly served, and a meet and confer statement was sent, all cmrr)?

Can the plaintiff somehow legally restate their claim at trial and say they purchased this account from the original creditor? If they present an agreement/contract between myself and OC, or, statements, etc from OC; I would think I would object to that/motion to strike because those are documents between myself and a third-party and have no relevance to the alleged claim made by plaintiff that they entered into a contract and issued credit to me.