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Need help answering Motion for Summary Judgment


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I have the book "Sue in Calif, without a lawyer" and it's very helpful with answering a MSJ. But I had also rec'd a "Memorandium of Points and Authorities in Support of Plaintiff's motion for summary judgement, or alternatively summary for adjudication of issues".

I understand that I have to answer the MSJ and summary adjudication, but what about the "Memorandium on points and authorities"? Is my answer to "Separate statement of facts" enough?

thanks!

BS

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Also let me ask you guys this. Let's say I win my motion to oppose summary judgment and this goes to trial. (Trial is one day after the MSJ!). Does the representative of the credit card company who signed a declaration have to show up to trial, or can the lawyers just use her declaration in trial like they're doing in their MSJ?

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While perhaps a picky procedural point since declarations are now supposed to be part of the evidence in opposition to motion for summary judgment - declarations in the past were "stand alone".

It is not likely to be a "make or break" factor but you should probably become aware with the California rules of Court for summary judgment motions.

Evidentary objections probably are best raised in an "Objection to Evidence" and perhaps in your responding separate statement of undisputed and disputed material facts.

Also, California motion for summary judgments are not supposed to be scheduled within 30 days of trial.

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Thanks!

I will paraphrase their MSJ tomorrow (it's at work)

I also requested the motion be opposed based on the motion date is within 30 days of the trial date.

We also opposed the motion based on it relying on only one person's declaration, and asked for sanctions like the book say.

OK...we'll oppose the memo of points also.

BS

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I would probably be placing the procedural defect at the beginning of your opposition memorandum of points and authorities. You can go down to the law library to get the relevant cases supporting the contention that a sole declaration is not sufficient to grant a summary judgment. Be aware, that the motion for summary judgment is likely to be granted or denied based on the business records. If Plaintiff has attached accurate account statements along with some evidence that the account is yours then you most likely are going to lose the motion or lose at trial.

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Judges can accept hearsay testimony on a summary judgement motion, not as stone-cold evidence, but as part of deciding if there is an issue worthy of trial. A lot will depend on what your defenses are. If they present the affidavit as evidence, you can't respond to the motion by saying " They haven't proved it."

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They have copies of a credit card agreement. They have copies of statements sent to a PO Box, not the defendant's address, and they have copies of checks paying the credit card not bearing the defendant signature. They also have no signed contract.

Defendant will point out that during discovery plaintiff could not furnish any docments (drafts, credits, checks, etc) bearing defendant's signature. No statement showing that statement was sent to defendant's home address. And because court rules states that the motion hearing date cannot be within 30 days of trial date, that the motion should be denied.

Defendant will also point out in points of memorrandum (sp?) that the case was never properly verified as per the Cass letter.

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The Cass letter is a loser argument, imo. It does not relevant to teh underlying debt and looks like a reach. It is at best a counter claim that they conitinued to collect without validating and since they apparently gave you enough to figure out it is not your address or handwriting, well, no judge is going to buy it.

Seems to me that, as you have allowed, your response is:

1. I oppose the plaintiff's motion for summary judgement because:

a. This is not my card/debt;

b. The PO box is not mine nor have I ever been associated with it;

2. There may be a BlackSurfer who owes the plaintiff, but itis not me.

3. As such, an issue of material fact exists.

4. I ask the court to deny this motion.

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Here's what I was thinking about the MSJ being Feb 2nd, and the trial being Feb 3rd. I was going to file my opposition to MSJ 14 days before Feb 2nd and hope the judge deny the motion on the 2nd, this is to prevent the plaintiff from pushing back the trial date, if I bring to their attention the close dates of the MSJ and the trial. This way we would have go to trial on Feb 3rd and I'm banking the attys won't show because they are way down in San Diego and I'm 200 miles away in a small bedroom community way north of L.A.

Also, what's the format to answering the memorrandums? Similar to the statement of undisputed facts?

thanks!

BS

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Here's what I was thinking about the MSJ being Feb 2nd, and the trial being Feb 3rd. I was going to file my opposition to MSJ 14 days before Feb 2nd and hope the judge deny the motion on the 2nd, this is to prevent the plaintiff from pushing back the trial date, if I bring to their attention the close dates of the MSJ and the trial.

The opposition papers need to address the motion for summary judgment.

The procedural defect of California Code Section 437© regarding that the motion for summary judgment should not be set 30 days before trial may or may not be waived at the court's discretion. You should check the case law regarding the time requirements for setting the motion.

The trial date is often put on the caption of the papers and the law and motion judge hearing your motion should be aware of the upcoming trial date.

This way we would have go to trial on Feb 3rd and I'm banking the attys won't show because they are way down in San Diego and I'm 200 miles away in a small bedroom community way north of L.A.

Telephone appearances for law and motion are quite common.

Also, what's the format to answering the memorrandums? Similar to the statement of undisputed facts?

Your best bet is to visit a law library and look at a book regarding writing memorandum of points and authorities along with summary judgment.

The format should be similar to Plaintiff's memorandum of points and authorities in support of motion for summary judgment.

thanks!

BS

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The procedural defect of the motion being filed within 30 days of trial quite likely is not curable and if so then probably having a memorandum with the case law is a good idea.

With regards to California procedural rules for summary judgment motions, please not California Rule of Court 342 below in particular 342(e) regarding opposition papers

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California Rules of Court 342

------------------------------------------------------------------------------------

2005 California Rules of Court

Rule 342. Motion for summary judgment or summary adjudication

(a) [Motion] As used in this rule, "motion" refers to either a motion for summary judgment or a motion for summary adjudication.

(B) [Motion for summary adjudication] If made in the alternative, a motion for summary adjudication may make reference to and depend upon the same evidence submitted in support of the summary judgment motion. If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.

(Subd (B) amended effective January 1, 2002.)

© [Documents in support of motion] The motion must contain and be supported by the following documents:

(1) Notice of motion by [moving party] for summary judgment or summary adjudication or both;

(2) Separate statement of undisputed material facts in support of [moving party's] motion for summary judgment or summary adjudication or both;

(3) Memorandum of points and authorities in support of [moving party's] motion for summary judgment or summary adjudication or both;

(4) Evidence in support of [moving party's] motion for summary judgment or summary adjudication or both; and

(5) Request for judicial notice in support of [moving party's] motion for summary judgment or summary adjudication or both (if appropriate).

(Subd © amended effective January 1, 2002.)

(d) [separate statement in support of motion] The Separate Statement of Undisputed Material Facts in support of a motion must separately identify each cause of action, claim, issue of duty or affirmative defense, and each supporting material fact claimed to be without dispute with respect to the cause of action, claim, issue of duty, or affirmative defense. In a two-column format, the statement must state in numerical sequence the undisputed material facts in the first column and the evidence that establishes those undisputed facts in the second column. Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers.

(Subd (d) amended effective January 1, 2002.)

(e) [Documents in opposition to motion] The opposition to a motion must consist of the following documents, separately stapled and titled as shown:

(1) [Opposing party's] memorandum of points and authorities in opposition to [moving party's] motion for summary judgment or summary adjudication or both;

(2) [Opposing party's] separate statement of undisputed material facts in opposition to [moving party's] motion for summary judgment or summary adjudication or both;

(3) [Opposing party's] evidence in opposition to [moving party's] motion for summary judgment or summary adjudication or both (if appropriate); and

(4) [Opposing party's] request for judicial notice in opposition to [moving party's] motion for summary judgment or summary adjudication or both (if appropriate).

(Subd (e) amended effective January 1, 2002.)

(f) [Opposition to motion; content of separate statement] Each material fact claimed by the moving party to be undisputed must be set out verbatim on the left side of the page, below which must be set out the evidence said by the moving party to establish that fact, complete with the moving party's references to exhibits. On the right side of the page, directly opposite the recitation of the moving party's statement of material facts and supporting evidence, the response must unequivocally state whether that fact is "disputed" or "undisputed." An opposing party who contends that a fact is disputed must state, on the right side of the page directly opposite the fact in dispute, the nature of the dispute and describe the evidence that supports the position that the fact is controverted. That evidence must be supported by citation to exhibit, title, page, and line numbers in the evidence submitted.

(Subd (f) amended effective January 1, 2002.)

(g) [Documentary evidence] If evidence in support of or in opposition to a motion exceeds 25 pages, the evidence must be in a separately bound volume and must include a table of contents.

(Subd (g) amended effective January 1, 2002.)

(h) [Format for separate statements] Supporting and opposing separate statements in a motion for summary judgment must follow this format:

Supporting statement:

Undisputed Material Facts:

Supporting Evidence:

1. Plaintiff and defendant entered into a written contract for the sale of widgets.

Jackson declaration, 2:17-21; contract, Ex. A to Jackson declaration.

2. No widgets were ever received.

Jackson declaration, 3:7-21.

Opposing statement:

Undisputed Material Facts and Alleged Supporting Evidence:

Response and Evidence:

1. Plaintiff and defendant entered into a written contract for the sale of widgets. Jackson declaration, 2:17-21; contract, Ex. A to Jackson declaration.

Undisputed.

2. No widgets were ever received. Jackson declaration, 3:7-21.

Disputed. The widgets were received in New Zealand on August 31, 2001. Baygi declaration, 7:2-5.

Supporting and opposing separate statements in a motion for summary adjudication must follow this format:

Supporting statement:

ISSUE 1-THE FIRST CAUSE OF ACTION FOR

NEGLIGENCE IS BARRED BECAUSE PLAINTIFF

EXPRESSLY ASSUMED THE RISK OF INJURY

Undisputed Material Facts:

Supporting Evidence:

1. Plaintiff was injured while mountain climbing on a trip with Any Company USA.

Plaintiff's deposition, 12:3-4.

2. Before leaving on the mountain-climbing trip, plaintiff signed a complete waiver of liability.

Smith declaration, 5:4-5; waiver of liability, Ex. A to Smith declaration.

Opposing statement:

ISSUE 1-THE FIRST CAUSE OF ACTION FOR

NEGLIGENCE IS BARRED BECAUSE PLAINTIFF

EXPRESSLY ASSUMED THE RISK OF INJURY

Undisputed Material Facts and Alleged Supporting Evidence:

Response and Evidence:

1. Plaintiff was injured while mountain climbing on a trip with Any Company USA. Plaintiff's deposition, 12:3-4.

Undisputed.

2. Before leaving on the mountain-climbing trip, plaintiff signed a complete waiver of liability. Smith declaration, 5:4-5; waiver of liability, Ex. A to Smith declaration.

Disputed. Plaintiff did not sign the waiver of liability; the signature on the waiver is forged. Jones declaration, 3:6-7.

(Subd (h) amended effective January 1, 2002; previously amended effective January 1, 1999.)

(i) [Request for electronic version of separate statement] Upon request, a party must within 3 days provide to any other party or the court an electronic version of its separate statement. The electronic version may be provided in any form upon which the parties agree. If the parties are unable to agree on the form, the responding party must provide to the requesting party the electronic version of the separate statement which it used to prepare the document filed with the court. Under this provision, a party is not required to create an electronic version or any new version of any document for the purpose of transmission to the requesting party.

(Subd (i) adopted effective January 1, 2002.)

Rule 342 amended effective January 1, 2002; adopted effective July 1, 1997; previously amended effective January 1, 1999.

Drafter's Notes:

2002-Rule 342 includes a new subdivision (i), which requires a party, upon request, to provide to any other party or the court within 3 days an electronic version of its separate statement. Rules 342, 343, and 345 have been amended to replace "shall" with "must."

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That's what I'm hoping for. I know some creditor attorney gives up after losing summary judgement and don't want to incur the cost or inconvenience of driving 200 miles for an 8:30am trial. The book "Sue In California, without a lawyer" explains that most defendant lose their case at the MSJ, but if we follow his instructions and get just one matter of law that's not resolved the motion will be denied. We are hoping to win our opposition to summary judgement and either settle right before trial if they show up at the court or go down for the count and demand they show evidence of linkage to defendant at the trial. If we lose, then it was a long hard fight before BK court!

BTW, I searched many cases from these lawyers and I've found none that went to trial. 95% were default judgement, the rest were dismiss, either by court for the lawyers not showing up to motions to show cause or by settlment.

Infact they have to show up on 12/6 for a motion to show cause on another case see:

http://www.lasuperiorcourt.org/civilCaseSummary/index.asp?CaseType=Civil

Type in case # 05C01000 for Capital One vs. Jara-Contreras (not my case)

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Question regarding Recovering Attorney's:

1. I oppose the plaintiff's motion for summary judgement because:

a. This is not my card/debt

Could we write "This is not my card/debt" if we believe the debt is not ours because of insufficient evidence produced by plaintiff and if we have written we had "no recollection" of the debt in our answer to their discoveries? Especially since they have failed to furnish any documents in discovery that had defendant signature on any drafts, checks, credits etc?

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That's what I'm hoping for. I know some creditor attorney gives up after losing summary judgement and don't want to incur the cost or inconvenience of driving 200 miles for an 8:30am trial. The book "Sue In California, without a lawyer" explains that most defendant lose their case at the MSJ, but if we follow his instructions and get just one matter of law that's not resolved the motion will be denied.

Following Duncan's who is the author of "Sue In California, without a lawyer" is no guarantee that you will defeat the motion for summary judgment.

A technical point, you need to raise trialble issues of fact -(at least for a routine debt collection case)-

We are hoping to win our opposition to summary judgement and either settle right before trial if they show up at the court or go down for the count and demand they show evidence of linkage to defendant at the trial. If we lose, then it was a long hard fight before BK court!

I must admit my surprise that presumably with opposing counsel made aware at the case management conference of the Feb. 3, 2006 trial date would schedule a motion for summary judgment on Feb. 2, 2006. Particularly for a limited jurisdiction case, one often tells the judge at the CMC of potential pre-trial dispositive motions with the judge arranging the calendar to allow for the motions.

BTW, I searched many cases from these lawyers and I've found none that went to trial. 95% were default judgement, the rest were dismiss, either by court for the lawyers not showing up to motions to show cause or by settlment.

The above is typical

Infact they have to show up on 12/6 for a motion to show cause on another case see:

http://www.lasuperiorcourt.org/civilCaseSummary/index.asp?CaseType=Civil

Type in case # 05C01000 for Capital One vs. Jara-Contreras (not my case)

They may or may not have to show up at an OSC hearing.

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RE: "I must admit my surprise that presumably with opposing counsel made aware at the case management conference of the Feb. 3, 2006 trial date..."

Plaintiff did not know about the Feb 3rd trial date. The judge knew however of the Feb 2nd MSJ date at the CMC and schedule the trial one day after. Another case I was following had the same CMC as mine, but the judge schedule his trial for Feb 10th. I'm thinking (hoping) the judge is helping me out here. Both plaintiff and defendant won't know how the judge ruled on the MSJ until the evening of Feb 2nd. We will be prepared to show up for trial on Feb 3rd. I'm not sure if plantiff will be ready to appear for trial.

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