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About 1joeking1@gmail.com

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  1. how do i get a bad mark from a credit card off my report after beating Capital one in court?
  2. Hello All! this is my fist post so bear with me. I was just in court battling it out with Capital one. They had their best attorneys hear from up north California. i am from orange county. i beat them on a preponderance of evidence. i did not know that they need to have the original contracts, monthly statements,etc. and those documents have to be coming from a computer that is monitored by a competent person that knows the actual state of the computer, anyway, read this. On November 21, 2017, CAPITAL ONE BANK (USA), N.A. (Hereinafter “Plaintiff”) filed this action against (hereinafter collectively referred to as “Defendant”). Defendant filed an answer to the complaint denying all claims. Trial in this matter is set for January 15, 2019. Plaintiff alleges money damages in the amount of $2,862.91, plus interest, attorney fees and costs. /// /// /// /// /// /// 2 POINTS AND AUTHORITIES I. PLAINTIFF’S PROPOSED EXHIBITS ARE INADMISSIBLE BECAUSE PLAINTIFF HAS NOT LAID A PROPER FOUNDATION A. APPLICATION OF EVIDENCE CODES 702 AND 1401 PRECLUDE THE EXHIBITS FROM BEING ENTERED INTO EVIDENCE Plaintiff is attempting to admit several exhibits, none of which were created by Plaintiff. As stated above: “... [T]he testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter.” California Evidence Code §702. It will be impossible for Plaintiff to lay the requisite foundation for these documents, let alone authenticate them. As stated above, California Evidence Code §1401 states, “[a]uthentication of a writing is required before it may be received in evidence.” California Evidence Code §1410 et. seq. provides the methods for authentication of a writing and. California Evidence Code §1413 is the most applicable, which states, “writing may be authenticated by anyone who saw the writing made or executed, including the subscribing witness.” There will be no testimony based on personal knowledge from anyone that had any information on the creation of any of the exhibits. There will be no evidence before the court that anyone created or saw or knows the method of the creation of the exhibits. Therefore, they cannot be admitted into evidence. B. PLAINTIFF WILL NOT LAY A PROPER FOUNDATION FOR ELECTRONICALLY GENERATED DOCUMENTS In addition to meeting the personal knowledge, authentication, and business records evidentiary foundation requirements discussed above, “...the electronic nature of the records necessitate...an additional authentication foundation regarding the computer and software utilized in order to assure the continuing accuracy of the records.” In Re Vee Vinhnee, 336 B.R. 437, 444 (B.A.P. 9th Cir. 2005). Although not mandatory upon this court, defendant encourages this court, for the same reasons stated in this well-reasoned opinion of the Ninth Circuit Bankruptcy court, to decide whether the proper foundation 3 DEFENDANT TRIAL BRIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 has been laid for electronically generated documents. The Vinhnee Court applied an eleven-step foundation analysis: 1. The business uses a computer. 2. The computer is reliable. 3. The business has developed a procedure for inserting data into the computer. 4. The procedure has built-in safeguards to ensure accuracy and identify errors. 5. The business keeps the computer in good state of repair. 6. The witness had the computer readout certain data. 7. The witness used the proper procedure to obtain the readout. 8. The computer was in working order at the time the witness obtained the readout. 9. The witness recognized the exhibit as the readout. 10. The witness explains how he or she recognizes the readout. 11. If the readout contains strange symbols or terms, the witness explains the meaning of the symbols or terms for the trier of fact. Id. at 446. The Vinhnee Court applied this eleven-step analysis because in Bankruptcy cases, much of the proposed evidence and transactions consists of voluminous electronically generated documents covering a significant period of time. Most of the evidence produced in collection cases consists of electronically generated documents. The Vinhnee analysis discusses the need for better authentication of computer generated records in an electronic age. The case at bar involves electronically generated documents and transactions created by a third party and allegedly authenticated by the Plaintiff. Plaintiff will not be able to lay a foundation for Plaintiff’s exhibits if the court uses the Ninth Circuit’s reasoned standard for authenticating computer records. Plaintiff will not present testimony from any witness who will be able to establish foundation for his or her knowledge of electronically generated documents created by any prior holder of this debt, or the accuracy of the information contained in such documents. II. PLAINTIFF’S EVIDENCE MUST BE EXCLUDED PURSUANT TO PEOPLE V. SANCHEZ AND PEOPLE V. ACCUNA 4 DEFENDANT TRIAL BRIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Court in People v. Sanchez, (2016) 63 Cal.4th 665 stated, “a hearsay statement is one in which a person makes a factual assertion out of court and the proponent seeks to rely on the statement to prove that assertion is true.” (Id. at 674). “While lay witnesses are allowed to testify only about matters within their personal knowledge… expert witnesses are given greater latitude.” (Id. at 674). “Generally, parties try to establish the facts on which their theory of the case depends by calling witnesses with personal knowledge of those case-specific facts.” (Id. at 676). “When an expert is not testifying in the form of a proper hypothetical question and no other evidence of the case-specific facts presented has or will be admitted, there is no denying that such facts are being considered by the expert, and offered to the jury, as true.” (Id. at 684). The Court concluded, “n the present case, when the gang expert testified to casespecific facts based upon out-of-court statements and asserted those facts were true because he relied upon their truth in forming his opinion, he was reciting hearsay.” (Id. at 685). The Court in People v. Accuna, (2017) 9 Cal.App.5th 1 at page 10 applied People v, Sanchez to civil cases. (“Sanchez…applies in civil cases…” Here, the witness declares facts outside of their personal knowledge asserting they are true. If an expert cannot do this then certainly a lay witness cannot either. III. JUDGMENT SHOULD BE FOR DEFENDANT BECAUSE PLAINTIFF HAS NOT PROVEN EACH CAUSE OF ACTION BY A PREPONDERANCE OF THE EVIDENCE. Plaintiff bears the burden of proof in proving its case. This burden requires Plaintiff to establish Plaintiff’s alleged facts are more likely than not true. California Evidence Code §500. This “more likely than not” measurement is commonly referred to as a “preponderance of the evidence.” See Beck Dev. Co. v. S. Pac. Transp. Co. (1996) 44 Cal. App. 4th 1160. Courts have provided clear guidelines regarding what is required of a Plaintiff in order to prevail in a civil action: 5 DEFENDANT TRIAL BRIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “...n order for the plaintiff to prevail the record must contain sufficient evidence to support a finding in its favor on each and every element that the law requires to support recovery. No matter how overwhelming the proof of some elements of a cause of action, a plaintiff is not entitled to a judgment unless there is sufficient evidence to support all of the requisite elements of the cause of action.” Id. at 1205. Accordingly, in order for Plaintiff to prevail in this action, Plaintiff must prove each element of each cause of action that it has sued for by a preponderance of the evidence. 1. PLAINTIFF HAS NOT PROVEN EACH ELEMENT OF THE ACCOUNT STATED CAUSE OF ACTION BY A PREPONDERANCE OF THE EVIDENCE. Plaintiff also alleges an account stated cause of action. The elements of an account stated are (1) previous transactions between the parties establishing the relationship of debtor and creditor, (2) an agreement between the parties, express or implied, on the amount due from the debtor to the creditor, and (3) a promise by the debtor, express or implied, to pay the amount due. Zinn v. Fred R. Bright Company, Inc. (1969) 271 Cal. App. 2d 597, 665. Because of the inadmissible evidence described above, Plaintiff is unable to prove these three elements. Therefore, Plaintiff’s account stated cause of action fails 2. PLAINTIFF HAS NOT PROVEN EACH ELEMENT OF AN OPEN BOOK ACCOUNT. Plaintiff also alleges an open book account. To prove this cause of action Plaintiff must show “a statement of the debits and credits of the transactions involved completely enough to supply evidence 6 DEFENDANT TRIAL BRIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 from which it can be reasonably determined what amount is due to claimant.” (Interstate Group Administrators, Inc. v. Cravens, Dargon & Co., (1985) 174 Cal.App.3d 700, 708). Because of the inadmissible evidence described above, Plaintiff is unable to prove the required elements. Therefore, Plaintiff’s cause of action must fail. 3. PLAINTIFF HAS NOT PROVEN EACH ELEMENT OF MONEY LENT OR MONEY PAID, LAID OUT AND EXPENDED. To prove these causes of action Plaintiff must show that it “claims a sum of money due… in a sum certain…” (Utility Audit Co., Inc. v. City of Los Angeles, (2003) 112 Cal.App.4th 950, 958). Because of the evidentiary issues involved in this case the Plaintiff will not be able to show a sum certain owed. III. CONCLUSION For the reasons discussed above, Defendant respectfully requests that Judgment be entered for Defendant. Should the Court enter Judgment in favor of Plaintiff, Defendant requests that it be for the amount proven at trial and that no attorney fees, interest, or costs be awarded. and for those reasons i won.