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About LoveIsPower

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  1. You should definitely address ALL Causes of Action in your trial brief. No stone unturned. Perfect! As far as the method ... of primary importance is that you're not late with your request. The rest is strategy. Remember, when you "serve by mail" you have to add 5 extra days to the 20 days they have to return the docs (if the address is in California. If it's outside California, you add 10 days). The more time they have to send it to you, the less time you have to prepare you MIL, trial brief, etc. (**Although you should be doing as much as you possibly can about that right now -- before you get the docs/witness list.**) If you send it overnight, then you only add 2 days to the 20 they have to return the docs. And it's more expensive. But, again, strategy. Some like to wait 'til the end of the deadline and then mail the request -- pushing the plaintiff to scramble (while you pre-prepare everything before the docs get to you). Some don't like that -- they prefer to have plenty of time to get the docs, prep their documents, file, etc, etc. Up to you. Again, the important thing is to really count the days and make sure YOU are not late.
  2. Afternoon @Girl0101, Wondering how your case is going and if you were able to send out your DISC-015 (CCP 96) request on time. I know it's crunch time and you must be feeling it. Just wanted to offer some support. Also, what are the Causes of Action in your complaint? Here is a thread from @calawyer (one of our most trusted members) with the latest CCP 98 ruling from the Supreme Court of California. I also wrote down a small breakdown of the ruling for anyone to better understand/follow. Perhaps it will help. Here is he link: Wishing you the best on your upcoming trial (and WIN!)
  3. You got it! Happy to help! 💪 Quick question ... do you have a thread of your own? I ask because it is MUCH easier to answer you there -- and for everyone else to chime in too -- when ALL the information about your case is easier to access. Believe me, I know what it is like to feel nervous. Posting in several threads can get a bit unhinged, though. People trying to help you but, not everyone getting the whole story and trying to help you with bits and pieces, here and there. It may do you good, if you don't have one, to consolidate your information and make one. That way you can "refer" people there and they can read your whole story, what you've done and haven't, what you have and don't have, etc. I can't say I'm a MIL expert. I'm sure there are much more experienced folks that can help you. @sadinca helped me quite a bit, but, as you know, they are not posting that much any more. You've been to @Inthedred's post where @sadinca left a lot of their documents for the final stages of the fight. MIL samples, objections, etc, etc. That is a great place to start! Modify as needed. But, sorry I can't be or more help there. Perhaps @RyanEX can guide you better. Here is the thread, just in case: This, you CANNOT "wing." YOU MUST -- I repeat -- MUST find out your LOCAL COURT RULES. Go to the courthouse if you have to. Go to the courtroom where your case will be tried and ask the clerk. A lot of times they have them printed out for people to take. YOU MUST KNOW THIS. (remember, your case is "limited" -- so rules may be a little different than those for "unlimited" cases -- READ WELL) And you also MUST KNOW YOUR COUNTY COURT RULES. I just did a Google search on "sacramento county civil court rules" and the 2nd hit was the .pdf. Download that, read it, scour it! KNOW IT!! Both of them together will give you what you need. In my opinion this is good news for you. This means if they don't bring someone to court to testify ... they're fried! But ... YOU MUST MENTION THIS IN YOUR MIL!! If you don't ... you may be fried. Again, things vary from county to county (some places don't like MIL's but like "Objections" instead) -- but the fact is that YOU MUST OBJECT!! How you object depends on your county. Even on your particular judge. This is why you MUST get a hold of your LOCAL COURT RULES! But YOU MUST OBJECT!! This is not a choice. YOU HAVE TO OBJECT if you want to win. In my humble opinion IT IS ALWAYS BEST TO HAVE IT IN WRITING and submit it (MIL or Objection, or whatever) before the court's deadline. The judge may not "rule" on your MIL (EDIT: Some judges prefer "oral" MIL/Objections the day of the trial, and even DURING the trial -- so you MUST KNOW your COUNTY and LOCAL COURT RULES -- and if so, you must be ready to do it orally, ie. know when and how to orally introduce the MIL, or Objections), but anything you can do to help the judge see your side AS CLEARLY and AS EASILY AS POSSIBLE, (even when you're orally arguing your MIL/Objections) -- do it!! Plus, it helps, in case you need to appeal. It's better to "over" do it (submit MIL/Objections in writing), than to regret it later. As long as you're following your COUNTY and LOCAL COURT RULES. Hope this helps!
  4. Hi @navy joy -- before I mention something ... just letting you know that I replied to you on the CCP 98 thread. Here is the link: Now ... did you send a demand for Bill of Particulars and receive an answer? Did you send out formal discovery requests and receive answers? You can base your MIL on the answers/documents you received from these. If I am not mistaken, the CCP 98 "affidavit in lieu of live testimony" is not "triggered" by a CCP 96 request. They have to serve you this affidavit 30 days before trial regardless. Other more experienced Cali folks can chime in on this. @RyanEX?
  5. Hi @navy joy! Let me get this straight ... you have NOT been served (received) an "Affidavit in Lieu of Live testimony" from the plaintiff? And your trial is Oct 4? Because ... they missed the deadline. EDIT: To clarify, just in case -- for proper "service," they have to put it in the mail 30 days prior to the trial. That means last week on September 4th (I think, double check this). Since it's been 8 days (today is Sept 12), you should have received it by now. Have you? CCP 98 says, "... To the extent the contents of the prepared testimony would have been admissible were the witness to testify orally thereto, the prepared testimony shall be received as evidence in the case, provided that either of the following applies: (a) A copy has been served on the party against whom it is offered at least 30 days prior to the trial ..." Here is the actual link from the California Legislature: So now the only way to authenticate the documents they sent you is to ACTUALLY SEND A LIVE PERSON to testify on the day of the trial. Something they may not want to do. If they don't do that, their documents are hearsay! BUT YOU HAVE TO RAISE THIS FACT IN YOUR MOTION IN LIMINE (MIL)!!!! Let's get something out of the way: you have not forfeited your ability to file a MIL. And you must focus on learning how and crafting a killer MIL. Since you missed the deadline to send the CCP 96 request, right now the tricky part is figuring out a way to ask for their "witness list." Why? Because you have to tailor your MIL to take down their evidence AND this witness. Hopefully other California peeps chime in and offer suggestions. Or you may have to dig a bit in the forums to find someone that was in a similar boat as you -- I'm sure there are plenty. My suggestion is to find out your LOCAL COURT RULES. There are deadlines for submitting your MILs, as well as submitting to the court your evidence, documents, trial briefs, and witness list. If both parties have to submit documents to the court BEFORE the deadline to submit the MIL, you're in luck. Just prep your MIL well so you can "insert" the name of the person. (Remember, your MIL will have to be adjusted depending if the witness works for the JDB or the OC ... although they rarely work for the OC. But you have to be ready for both). ALSO ... some LOCAL COURT RULES require parties to prepare JOINT statements, witness lists, even briefs. If that's the case for you, you're in luck, since all you'll have to do is send a "Meet and Confer" email or letter asking to start the exchange of information in order to prepare the JOINT documentation required by the court. And you have to do that with plenty of time in order to meet the Court's deadlines for submission. When you get the witness name and info, you'll be ready to insert it in your amazingly crafted MIL. You've got to get crackin' ASAP!! You've got a little, tiny bit of time -- not much -- but enough to kick some azz!! You got this! Hope this helps!
  6. Interesting. The thing is, the trial is in 2 weeks. 🤔 Deadline for filing MIL, trial briefs, etc is Monday. This is the vibe I got from the attorney. It was more of a, "you sign the mutual release and I submit the dismissal with prejudice, and we are BOTH done with this." She was friendly, yet (in a wink, wink 😉 way) eager to move on -- no real emotional investment in the case from her. 😁 Now is the agreement not only in writing, but SIGNED by them (and me).
  7. For anyone stumbling onto this thread -- the problem was fixed! Thanks a million @willingtocope!!
  8. A HUGE THANKS to @Harry Seaward for pinning this post! Everyone in California thanks you!! 🥳 And, of course, huge thank you to @calawyer! California peeps -- remember: No more arguing and ambiguity -- The Supreme Court of California has said that THE AFFIANT HAS TO BE SERVED the SUBPOENA PERSONALLY ... PERIOD. Modify ALL your documents with this new ruling! Meza v. Portfolio Recovery Assocs., LLC, No. S242799, 2019 WL 641517, *12 (Cal. Feb. 15, 2019) For anyone in California seeing this post for the first time and thinking, "why is this post so important?" It breaks down like this (with a huge thanks to @ASTMedic's original breakdown): ( ... I am guessing you have already read @ASTMedic's thread and/or @HomelessInCalifornia's thread to familiarize yourself with the entire process. If not, I'll link them at the bottom. Remember ... there is a LONG process before we get to this point. Read up. Learn. Do. And DO NOT MISS DEADLINES! YOU GOT THIS!!) Here we go: 45 days before the day of the trial, you will send a DISC-015 FORM pertaining to CCP 96. The CCP 96 (through the DISC-015) makes the JDB disclose everything they intend to use in court -- names and address of witnesses they intend to call, documents they intend to use, & photo/physical evidence they intend to use at trial. If they don't disclose it to you in the mandated time (within 20 days of service of the DISC-015), then they can't use it in court. YOU CANNOT MISS THE DEADLINE FOR THIS and YOU MUST USE THIS TOOL if you intend to WIN. Again, DO NOT MISS THE DEADLINE for when you are supposed to send this to the plaintiff (through their attorneys)!! They (plaintiff's attorneys) will send you a package with the documents they plan to use and the list of witnesses. In California they are allowed, through CCP 98, to submit an "Affidavit in lieu of live testimony." Meaning, a piece of paper signed by someone saying all the papers they (plaintiff) plan to use are good. They have to serve this Affidavit to you, "at least 30 days prior to the trial" (per CCP 98(a)). This is a way to make litigation less expensive (CCP 96 and CCP 98 are all part of the law governing "Economic Litigation for Limited Civil Cases"), and that way not have to send a LIVE PERSON to testify in court. The thing is, as you should know by now: The papers they sent you are hearsay ... until someone authenticates them. This "Affidavit in lieu of live testimony" is their attempt to authenticate these hearsay documents they sent you. The thing is, this Affidavit is most likely signed by someone who works for the JDB (not the OC) ... so they are trying to use a BOGUS way to apply the "business records exception to the hearsay rule" hoping you don't know they are doing this. The fact is: THIS PERSON THAT WORKS FOR THE JDB CANNOT PROPERLY AUTHENTICATE THESE DOCUMENTS. Only someone from the OC can properly authenticate these documents. In California, regardless of the plaintiff's ability to submit this Affidavit, YOU STILL HAVE THE RIGHT TO FACE THIS PERSON THAT SIGNED THE AFFIDAVIT ... IN COURT. But YOU MUST ASK to face this person in court. You do this through a SUBPOENA. Now ... if you don't do anything (if you don't ASK to face this person in court) ... you're pretty much done, because the court will accept the Affidavit submitted by the plaintiff, AND will accept all the documents that the plaintiff submitted -- hearsay or not. So ... YOU. ARE. 💀💀💀!!! But, of course, YOU WILL DO SOMETHING. Here is what you do. When you receive the package of documents and the list of witnesses (see above), and the "Affidavit in lieu of Live Testimony" -- attached to that Affidavit they have to provide, per CCP 98(a), "... a current address of the affiant that is within 150 miles of the place of trial, and the affiant is available for service of process at that place for a reasonable period of time, during the 20 days immediately prior to trial." You will pick the address closest to the court and YOU WILL PAY FOR SOMEONE TO PERSONALLY SERVE A SUBPOENA to the person that signed the Affidavit (the "affiant" -- aka. the witness that you want to show up to court) in those "20 days." The earlier in those 20 days, the better!! (if you have a fee waiver, the County Sheriff will do it for free). "Personally Serve" means to give it to the actual person that signed the Affidavit (affiant), and not just leave it there, or give it to someone else that happens to be/work there. You pay for someone (or if you have a fee waiver, the County Sheriff will do it for free) to PERSONALLY SERVE a Subpoena, because 99% of the time that person (the affiant) isn't going to be available for PERSONAL SERVICE at the address they provided. For a variety of reasons ... like the fact that most of these people work/live out of state. Before this ruling by the Supreme Court of California there was a lot of arguing and ambiguity about if the affiant actually had to be "personally served." NO MORE. THE AFFIANT HAS TO BE SERVED the SUBPOENA PERSONALLY ... PERIOD. So, after you've tried to PERSONALLY SERVE the subpoena to the affiant unsuccessfully, you will include this fact -- together with this case law -- in your Motion in Limine (MIL) in order to make sure all of the papers they want to introduce in court are INADMISSIBLE. NO PERSON TO AUTHENTICATE hearsay documents IN PERSON ... documents are can't be used. NO EVIDENCE ... the plaintiff DOES NOT HAVE STANDING TO SUE. Remember -- most of the time JDBs do not want to pay for the affiant to fly all the way to California to be witnesses in a trial. If they have several cases in different days, all month long, all year long, it gets expensive -- hence, the Affidavits. BUT ... SOMETIMES THEY DO SEND THE AFFIANT TO TESTIFY!! It does happen, and you MUST be prepared to deal with that!! I won't cover that in this post -- just remember ... if the affiant works for the JDB, then they cannot properly authenticate the documents and the "business records exception to the hearsay rule" DOES NOT APPLY. You can be prepared for that!! And also remember -- YOU MUST SUBMIT A MOTION IN LIMINE (MIL)!! (sometimes several of them). Some courts/judges allow oral MILs, some DO NOT. Your best bet is to WRITE UP YOUR MIL (it helps you prepare!) and submit it before the court's deadline!! Make sure you know of your LOCAL COURT RULES to make sure you KNOW the deadlines to submit your MIL. And make sure you know if the deadline is in "court days" or just regular days. LA County has a nifty "court day calculator" here: Remember, this post has to do with the new CCP 98 ruling of the Supreme Court of California: Meza v. Portfolio Recovery Assocs., LLC, No. S242799, 2019 WL 641517, *12 (Cal. Feb. 15, 2019) If you want to read the actual ruling (and you should), here is a .pdf: SUPREME_CCP98_win_Meza_vs_Portfolio_Feb2019.PDF In a post above I posted the link of the actual oral arguments in front of the Supreme Court of California. It is a FASCINATING WATCH! Especially if you want to witness poise under pressure, and what it takes to be truly prepared to argue your case in front of a judge. And remember: I AM NOT AN ATTORNEY. So caveat emptor, YMMV, I am not responsible, do your due dilligence, etc, etc, etc. I am just simplifying the process for those of us who are not lawyers or experts and need a little guidance in order to know how to proceed. You need to read more than just this post! And you need to become UTTERLY FAMILIAR with the SPECIFICS of YOUR CASE, which may be completely different than someone else's case!!! I am simplifying the ruling of the Supreme Court of California in order to make it useful for people in this forum. There is more meat in that bone (like the fact that if you are a "party" to the lawsuit, then you don't need a subpoena to be called to attend trial), but this is about JDB lawsuits -- and in JDB lawsuits, the affiant is 99.999999% of the time not a "party" to the lawsuit and the only way to get someone who is not a "party" to the lawsuit to appear in court IS THROUGH A SUBPOENA. This post DOES NOT cover A LOT of things like, "what is standing to sue," the use of a Bill of Particulars, Discovery, how to write a proper Motion in Limine, what is hearsay, the specifics of the "business record exemption to the hearsay rule," Subpoenas, on, and on, and ON! THIS POST DOES NOT COVER A LOT OF THINGS YOU MUST KNOW in order to be successful and be properly prepared to WIN. But the answers are in this forum and there are a ton of people that are willing to help you find the answers in this forum or in other places. THIS IS NOT -- I REPEAT ... NOT -- THE ONLY STRATEGY YOU SHOULD BASE YOUR CASE ON. DO NOT PUT ALL YOUR EGGS IN ONE BASKET!! I REPEAT, DO NOT PUT ALL YOUR EGGS IN ONE BASKET!!!! I AM NOT AN ATTORNEY. Did I mention that I AM NOT AN ATTORNEY? Like I said at the beginning, I recommend you read @ASTMedic's brilliant thread, and also @HomelessInCalifornia's outstanding thread -- which are chock-full of information, resources, and guidance!! Here they are: And with this, I bid you adieu. I wish everyone strength, stamina, and a relentless love for self! Always remember, no matter your current situation, YOU ARE WORTHY! I DO NOT CARE HOW CHEESY THIS SOUNDS!! You are NOT defined by your past mistakes, bad breaks, or current situation!! Many have gotten through this!! All of us not any more "special" than you. If we can do it, so can you!! YOU GOT THIS!! 🔥 @LoveIsPower
  9. Well folks -- the "mutual release" with an agreement to a "dismissal with prejudice of the entire Action" is SIGNED by both parties!! DONE. #BOOM! Now ... the agreement says they will file the dismissal within 15 days ... my question is ... can I relax now? 😅 Is it just about monitoring the court system to make sure the dismissal has been officially filed? (Remember, the deadline to file all the court papers for trial, including my MIL, etc is on Monday!)
  10. Interesting. I will make sure to keep an eye out for an NDA. Thanks @Harry Seaward!
  11. Glad to hear this. I didn't think I had either. I just don't want to get caught with my pants down, not file my MIL, etc, and then they say, "nevermind, we renege the deal, let's go to court." Although, to be honest, they don't look prepared to file anything or go to court for this at all. Guess better to be safe, than sorry.
  12. Sounds great! I just sent the attorney an email to see if we can take care of this asap. They were waiting for plaintiff to approve "deletion of tradelines" as part of the settlement. But, I will proceed as if nothing has happened! Thanks @WhoCares1000!!
  13. Perfect! Sounds great! I'll make sure to cover all my bases! No, right -- I was asking about before it was signed and the dismissal electronically sent to the court and officially recorded. Hate so sound lazy, but it would be a pain in the butt to have to do all that filing, if it wasn't necessary. @Harry Seaward, do you agree with what @WhoCares1000 said? Best to cover all my bases? Have you ever heard of an attorney/plaintiff reneging on an offer before it was signed and the dismissal filed?
  14. Well folks -- I've got a big win in California ... attorney has offered "mutual release," and after I sign they will "dismiss with prejudice." 🥳 (I promise to write down all the juicy details on the win after the ink is dry and the dismissal with prejudice is filed with the court) My question is ... has an attorney ever reneged on an offer like that? Can they? The reason that I ask is that there is a court filing deadline coming up real soon (to get all the paperwork in for trial, including MIL, etc, etc.) and I don't want to get blindsided with a "nevermind," and then I missed the court filing deadline for my MIL, etc, etc. Thanks for your help, everyone!!