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notlawyer

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  1. Can the CCP 96 actually be filed 50 days prior to trial, if it is served by mail? Is the 45-day count adjusted based on the method of service?
  2. I just wanted a sanity check on how the number of days is counted—for determining how early the CCP 96 can be served on the plaintiff. I understand that the CCP 96, that is, the form DISC-015: Request for Statement of Witnesses and Evidence, must be served between 30 and 45 days prior to the trial date. I also assume that if this is served via mail within CA, then an extra 5 days is added—so it can actually be served via mail as early as 50 days prior to trial. So hypothetically if the trial date is December 26, then the CCP 96 (DISC-015) can be served as early as November 6 (50 days before trial). (Even if the plaintiff actually receives it on day 46 or day 47 prior to trial.) Does this sound right? Thanks.
  3. I am considering submitting the following RFAs, aimed at hammering them regarding their inadequate response to the request for production of documents: 1) Admit that Plaintiff JDB does not have any other documents in its possession relevant to this case, aside from those documents previously provided by Plaintiff in Plaintiff’s Response to Defendant’s Demand for Production of Documents, Set One. 2) Admit that Plaintiff does not have a bill of sale from OC indicating either the Account number or defendant’s name. 3) Admit that Plaintiff does not have an affidavit from OC with the Account number or defendant name attesting to the accuracy of the alleged assignment of the alleged debt to the Plaintiff. 4) Admit that Plaintiff has no Documents in its possession establishing any written agreement or contract between Plaintiff and the Defendant. 5) Admit that Plaintiff is aware that simply taking the alleged business records of OC in which Plaintiff had no personal first-hand knowledge of their creation and their authenticity, and then putting those alleged business records into a file maintained by Plaintiff, and then referencing those records as Plaintiff business records, does not overcome the business records exception to hearsay. 6) Admit that Plaintiff does not have any Documents in its possession establishing previous transactions between Plaintiff and Defendant, which establish a debtor-creditor relationship. 7) Admit that Plaintiff, at any point in time within the last 5 years, has been found, by a court of competent jurisdiction, to have used a “robo-signer” to sign affidavits, the definition of “robo-signer” meaning auto-signing and or simply stamping a name to the affidavit. 8) Admit that Plaintiff had to have a court of law, in a written order, order Plaintiff to no longer submit falsified affidavits. 9) Admit that all of Plaintiff’s records, which allegedly show an obligation of the Defendant to Plaintiff, are inadmissible hearsay. 10) Admit that you do not intend to call any witness from the original creditor. And "matching" Interrogatories: If Plaintiff’s response to Request for Admission No. 1 served concurrently by defendant upon Plaintiff is other than an unqualified "Admit," please state all the reasons for your denial. If Plaintiff’s response to Request for Admission No. 2 served concurrently by defendant upon Plaintiff is other than an unqualified "Admit," please state all the reasons for your denial. etc.... If Plaintiff’s response to Request for Admission No. 10 served concurrently by defendant upon Plaintiff is other than an unqualified "Admit," please state all the reasons for your denial.
  4. I am considering submitting the following RFAs, aimed at hammering them regarding their inadequate response to the request for production of documents: 1) Admit that Plaintiff does not possess any other documents relevant to this case, aside from those documents previously provided by Plaintiff in Plaintiff’s Response to Defendant’s Demand for Production of Documents, Set One. 2) Admit that Plaintiff JDB does not have a bill of sale from OC indicating either the Account number or defendant’s name. 3) Admit that Plaintiff does not have an affidavit from OC with the Account number or defendant name attesting to the accuracy of the alleged assignment of the alleged debt to the Plaintiff. 4) Admit that Plaintiff has no Documents in its possession establishing any written agreement or contract between Plaintiff and the Defendant. 5) Admit that Plaintiff is aware that simply taking the alleged business records of OC in which Plaintiff had no personal first-hand knowledge of their creation and their authenticity, and then putting those alleged business records into a file maintained by Plaintiff, and then referencing those records as Plaintiff business records, does not overcome the business records exception to hearsay. 6) Admit that Plaintiff does not have any Documents in its possession establishing previous transactions between Plaintiff and Defendant, which establish a debtor-creditor relationship. 7) Admit that Plaintiff, at any point in time within the last 5 years, has been found, by a court of competent jurisdiction, to have used a “robo-signer” to sign affidavits, the definition of “robo-signer” meaning auto-signing and or simply stamping a name to the affidavit. 8) Admit that Plaintiff had to have a court of law, in a written order, order Plaintiff to no longer submit falsified affidavits. 9) Admit that all of Plaintiff’s records, which allegedly show an obligation of the Defendant to Plaintiff, are inadmissible hearsay. 10) Admit that you do not intend to call any witness from the original creditor. And "matching" Interrogatories: If Plaintiff’s response to Request for Admission No. 1 served concurrently by defendant upon Plaintiff is other than an unqualified "Admit," please state all the reasons for your denial. If Plaintiff’s response to Request for Admission No. 2 served concurrently by defendant upon Plaintiff is other than an unqualified "Admit," please state all the reasons for your denial. etc.... If Plaintiff’s response to Request for Admission No. 10 served concurrently by defendant upon Plaintiff is other than an unqualified "Admit," please state all the reasons for your denial.
  5. Thanks again! One format-related issue that continues to vex me concerns the seeming conflicting requirements/guidelines involving page numbers, providing a table of contents, and whether the motion elements are separate documents vs. combined into a single document. To provide a table of contents, it seems to me that everything must be page-numbered consecutively...but if the motion elements are "separate" documents, then wouldn't each such separate element start with page 1? But it's still ambiguous to me whether a table of contents is even necessary. I'm thinking of numbering everything consecutively, providing a table of contents, and treating each motion element as if it was "separate" (with its own caption and footer), but not restarting the page number at 1 for each new section. Do you think any of this matters? I can't really get a straight answer from the people at the courthouse, so presumably this issue isn't crucial. these are seemingly trivial issues...but I don't totally trust my intuition regarding what's trivial and what's not...
  6. Thanks again calawyer...all these fine points that I would not have thought about... I have a couple of seemingly simple questions about the motion: 1) Separate Sections? do each of the various elements of the motion (notice of motion, memorandum, separate statement, declaration, etc.) need to be individually signed and dated? or can the entire motion simply be signed and dated just once, at the very end of the document? Or maybe the declaration section especially merits a separate signature? 2) Serving the Opposing Party: do I need to serve the entire set of exhibits on the opposing party, if the opposing party should already have all these exhibits (for example, when one exhibit is a huge packet of info already served on me by the opposing party, or another example is something that I already served, CMRRR, on the opposing party)?
  7. Yes, calawyer is heroically helping many of us here in CA...
  8. Since I suspect that it would be beneficial to also file a Proposed Order, I have drafted one below, in case anyone has any feedback or advice. Thanks! [PROPOSED] ORDER COMPELLING FURTHER RESPONSES TO DEMAND FOR PRODUCTION OF DOCUMENTS AND IMPOSING MONETARY SANCTIONS The motion by Defendant XXX for an order compelling Plaintiff JDB to provide further responses to Defendant’s Demand for Production of Documents, Set One, came for hearing on [date] in Department XX of this Court. Having reviewed and considered the Motion and the pleadings in support thereof, and finding cause therefor, the Court rules as follows: IT IS HEREBY ORDERED: 1 The Motion is granted; 2 Plaintiff JDB is ordered to provide written, verified and complete responses to Defendant’s Demand for Production of Documents, Set One, with document production, without objections as set forth herein, or, in the alternative, to be precluded from offering any such evidence at the trial of this matter. IT IS FURTHER ORDERED that PLAINTIFF shall pay monetary sanctions to Defendant XXX in the amount of $_________ on or before ____________. IT IS SO ORDERED. Dated: _________________ ________________________ The Honorable XXXX Judge of the Superior Court http://www.creditinfocenter.com/forums/there-lawyer-house/316601-contemplating-next-move-after-receiving-jdb-response-pod-2.html#post1200297
  9. Since I suspect that it would be beneficial to also file a Proposed Order, along with the Motion to Compel Discovery, I have drafted one below, in case anyone has any feedback or advice. Thanks! [PROPOSED] ORDER COMPELLING FURTHER RESPONSES TO DEMAND FOR PRODUCTION OF DOCUMENTS AND IMPOSING MONETARY SANCTIONS The motion by Defendant XXX for an order compelling Plaintiff JDB to provide further responses to Defendant’s Demand for Production of Documents, Set One, came for hearing on [date] in Department XX of this Court. Having reviewed and considered the Motion and the pleadings in support thereof, and finding cause therefor, the Court rules as follows: IT IS HEREBY ORDERED: 1 The Motion is granted; 2 Plaintiff JDB is ordered to provide written, verified and complete responses to Defendant’s Demand for Production of Documents, Set One, with document production, without objections as set forth herein, or, in the alternative, to be precluded from offering any such evidence at the trial of this matter. IT IS FURTHER ORDERED that PLAINTIFF shall pay monetary sanctions to Defendant XXX in the amount of $_________ on or before ____________. IT IS SO ORDERED. Dated: _________________ ________________________ The Honorable XXX Judge of the Superior Court
  10. I edited the post above in item #3, regarding the issue of which part of the CCP to cite regarding sanctions for non-meritorious objections, CCP 2023.010(e) vs. 2023.010(a)...
  11. Thanks again calawyer for your great feedback and guidance. As usual, some additional questions come to mind: 1) Meet & Confer on Hearing Date: I have drafted a “meet and confer” letter for the plaintiff to obtain their agreement on a hearing date for the motion to compel—does this look sufficient? Dear Plaintiff, I write to meet and confer about a hearing date for a motion to compel further responses to Defendant's First Request For Production of Documents. I have already left a voicemail with you yesterday regarding this matter. Which of the following dates are acceptable to you? Please select 1 acceptable date and at least 1 alternate date. If I do not hear from you soon, I will be forced to make these selections myself. 1) mm/dd 2) mm/dd 3) mm/dd 4) mm/dd Very truly yours, Defendant I assume that the following would also become part of the supporting Declaration: "On xxxx, 2012, defendant served a second meet and confer letter on plaintiff’s attorney, requesting that Plaintiff's attorney agree to select a hearing date and at least 1 alternate hearing date. A copy of this letter is attached hereto as Exhibit E. Since no response was received, I picked the following date: xxxx 2) Exhibits: I will be attaching the Plaintiff's Response to Discovery as an Exhibit--but one of plaintiff’s exhibits is 70 pages long (approx. 20 alleged account statements)—do I need to attach all 70 pages, or will a couple of representative account statements suffice? 3) Requesting Sanctions: I plan to add the following sentence just after the opening paragraph in the notice of motion: "Defendant will further move that sanctions be imposed against plaintiff for failing to meet and confer, pursuant to CCP 2023.010(i), and meritless objections in its Plaintiff’s Response to Defendant’s Demand for Production of Documents, Set One, pursuant to CCP 2023.010(e)." Note that regarding your previous comment about sanctions in post #31, I think you meant CCP 2023.010(e) regarding plaintiff’s not-well-taken objections (not 2023.010(a)), right? 4) Proposed Order? do I need to also include a proposed “order” (at the end of the motion) that a judge can sign? if so, what must be included in such a "proposed order"? for example, I assume the proposed order must say something about sanctions--but perhaps leave the dollar amount blank?
  12. Apparently, my court requires that we agree with opposing counsel on a target date (as well as one or more alternate dates) for the motion to compel hearing, prior to filing the motion...
  13. III CONCLUSION Plaintiff’s response to defendant’s Demand for Production of Documents is inadequate. The Court should require plaintiff to supplement its response immediately and produce: a copy of any agreement (identifying the defendant by name, as well as the alleged account number) assigning this alleged account to plaintiff, a copy of the alleged original contract between defendant and the OC, a copy of any agreement between defendant and the JDB, and a complete accounting of the alleged balance, including an itemization of the account showing all charges and credits thereto. In the alternative, defendant asks that the Court enter an order precluding plaintiff from offering any such evidence at the trial of this matter. SEPARATE STATEMENT This has been posted previously (in posts #21 and #22, in the revised meet and confer letter). DECLARATION IN SUPPORT OF MOTION TO COMPEL RESPONSES TO DEMAND FOR PRODUCTION OF DOCUMENTS I, xxx declare as follows: I am the defendant in the above titled matter. I have personal knowledge of all the facts contained herein, and if called to testify, could and would testify competently thereto. 1. Defendant served a Demand for Production of Documents, Set One by U.S. Mail to Plaintiff's attorney, XXXXX, on XXXXX, 2012. A copy of the Demand for Production of Documents, Set One and Proof of Service is attached hereto as Exhibit A. 2. Plaintiff served a response to Defendant’s Demand for Production of Documents, Set One on XXXXX, 2012. A copy of this response is attached hereto as Exhibit B. 3. Observing that Plaintiff’s response was incomplete and insufficient, on XXXX, 2012, defendant served a meet and confer letter on plaintiff’s attorney, XXXXX, requesting that Plaintiff provide a full response. A copy of this letter is attached hereto as Exhibit C. 4. As of today’s date, 2012, plaintiff has not responded to the meet and confer letter. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Exhibits Exhibit A: Defendant’s Demand for Production of Documents, Set One Exhibit B: Plaintiff’s Response to Defendant’s Demand for Production of Documents, Set One Exhibit C: Defendant’s Meet and Confer Letter
  14. MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION On XXXX, 2012, plaintiff filed its complaint against the defendant in this matter. On XXX, plaintiff served defendant.... Do I need to mention the method of service of the summons? The complaint alleges that defendant owes plaintiff the sum of $xxxx pursuant to an assignment of an alleged debt between defendant and OC. No such assignment agreement (or any other supporting evidence) is attached to the complaint. The complaint sets forth no facts supporting the amount claimed to be owed. Therefore, on XXXX, 2012, defendant served a Demand for Production of Documents, Set One (Exhibit A). Plaintiff then served a response (Exhibit on XXXX, 2012 which was inadequate—a bill of sale was produced, which did not mention the defendant by name nor did it mention the alleged account number; nor was any contract between the OC and defendant provided; nor was any agreement between the defendant and JDB provided; nor was a history of the alleged account provided, failing to establish the legitimacy of the alleged balance sought in the complaint. On XXXX, 2012, defendant sent a meet and confer letter to plaintiff requesting a supplemental response compliant with Code of Civil Procedure sections 2031.220, 2031.230, and 2031.240 (Exhibit C). No additional response to this meet and confer letter has been received by defendant. Defendant therefore asks that this Court order plaintiff to supplement its Demand for Production of Documents, Set One, producing: a copy of any agreement (identifying the defendant by name, as well as the alleged account number) assigning this alleged account to plaintiff, a copy of the alleged original contract between defendant and the OC, a copy of any agreement between defendant and the JDB, and a complete accounting of the alleged balance, including an itemization of the account showing all charges and credits thereto. In the alternative, defendant asks that the Court enter an order precluding plaintiff from offering any such evidence at the trial of this matter. II. ARGUMENT In response to Requests 1, 2, 3 and 4 in Defendant’s Demand for Production of Documents, Set One (Exhibit A), Plaintiff produced Exhibits 1, 2, 3 and 4, but does not state that such documents constitute all documents responsive to the Defendant’s Demand for Production of Documents, Set One. Such a response does not comply with California Code of Civil Procedure § 2031.220. Pursuant to that section, “A statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.” Plaintiff should immediately serve a code-compliant, verified, complete, supplemental response (and produce any further responsive documents). In response to Requests 1, 2 and 3 in Defendant’s Demand for Production of Documents, Set One, Plaintiff has objected to the phrase “all documents” on the ground that it might include attorney-client communications. If Plaintiff has withheld any documents based upon this objection, Plaintiff should comply with Code of Civil Procedure section 2031.240 and prepare a privilege log that identifies “with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made.” Regarding Plaintiff’s response to Request 1 in Defendant’s Demand for Production of Documents, Set One, if the alleged original agreement between defendant and OC is not within Plaintiff’s possession, custody or control because it has been destroyed, plaintiff should say so in a verified response as is required by Code of Civil Procedure section 2031.230. If this document exists, plaintiff should produce it immediately. The inadequacy of Plaintiff’s response to Defendant’s Demand for Production of Documents, Set One is further described below in the Separate Statement. On XXXX, 2012, defendant sent a meet and confer letter requesting that plaintiff supplement its deficient responses to become code-compliant. Plaintiff has not responded to the meet and confer letter. Defendant’s efforts to meet and confer to avoid the necessity of bringing this motion were futile. The information requested in Defendant’s Demand for Production of Documents, Set One is the bare minimum that plaintiff will need to prove its case at trial. Plaintiff should have had such documents in its possession before filing suit. There is simply no reason that such documents should not be produced in response to a properly served Demand for Production of Documents. The Court should require plaintiff to immediately produce such documents, without objections as set forth herein, or, in the alternative, preclude plaintiff from offering any such evidence at the trial of this matter.
  15. I’m still waiting for plaintiff’s response to the meet and confer letter, but in the meantime I’ve drafted a preliminary motion to compel (to be adjusted based on their response, if any). What do people think? I welcome any and all feedback and guidance, even correction/clarification of minor details. Again, calawyer’s guidance on this has been invaluable. I based my draft motion on calawyer’s previous post (based on a motion to compel for BOP), and included a “separate statement” (as well as an “argument” section). I wasn’t really sure how to structure this motion—and I can see that I am being redundant. I wasn’t sure what sections should be included, and how to write up the memorandum of points and authorities… Some additional questions also come to mind: 1) Are the legal arguments and rationales (points and authorities) in this motion sufficient? 2) Attached Exhibits: do I need to attach the entire Plaintiff’s response to the Demand for Production of Documents (which has many pages--mostly alleged cc statements from the OC)? Is there any limit to the number of pages in the Exhibits attached to the motion? 3) Can a friend or spouse actually file the motion at the court on behalf of the defendant? 4) Should the plaintiff be served with a court-endorsed/stamped copy of the motion? 5) Is there any point to asking for monetary sanctions? 6) I assume that the dept # is the same dept # found on the civil lawsuit notice? 7) Do I need to mention how the original summons was served, or exactly which day it was served? 8) Should I attach the certified mail receipt for the meet and confer letter (if plaintiff fails to respond)? JDB, Plaintiff, vs. Defendant NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO DEMAND FOR PRODUCTION OF DOCUMENTS, MEMORANDUM OF POINTS AND AUTHORITIES, SEPARATE STATEMENT, DECLARATION OF DEFENDANT, EXHIBITS DATE: TIME: DEPT: TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT on xxxx, at XX AM or as soon thereafter as may be heard in Department xx of the above-entitled court, located at , defendant, (“Propounding Party”) will, and hereby does, move this court for an order, compelling Plaintiff JDB, (“Responding Party”) to provide written, verified and complete responses to Defendant’s Demand for Production of Documents, Set One, with document production, without objections as set forth herein, or, in the alternative, to be precluded from offering any such evidence at the trial of this matter. The motion is made pursuant to Code of Civil Procedure sections 2031.220, 2031.230, and 2031.240 on the ground that Plaintiff has failed to provide an adequate response and good cause exists for the relief requested in this motion. This motion is based upon this Notice, the Memorandum of Points and Authorities in support hereof, the Separate Statement in support hereof, the Declaration of Defendant in support hereof, the documentary evidence in support hereof, the papers and records on file herein, and such evidence as may be presented at the hearing. DATED: the date on which the motion is actually filed at the court?
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