BOP and motion for summary judgement.

[ADSOFT]

I sent plaintiff bILL OF pARTICULARS and only got a print out. Sent them a seccond letter to for BOP and didn't get a response.

I'm thinking of filing for Summary Judgement since plaintiff hasn't produced enough evidence to win a case.

What do you guys think? Should I ask for Summary Judgement?

[skippy1960]

I think there are a couple of thoughts, if you file MSJ and the plaintiff actually has more or will get more to defend MSJ you are hanging everything on one filing. If I remember the BOP code is written as court has discretion to keep any further evidence from comiing in. I think it uses the work "may".

This is not iron clad. Still may want to give it a shot.

You might consider firing a first salvo, by filing MTDw/prejudice based on the same principal, plaintiff has no evidence in response to BOP. Result is similar, except if you loose MTD, you live to fight another day. Plus MTDw/p much easier document to prepare....

[RebelLady]

I have to agree with skippy. An MSJ, where it would certainly surprise the opposing attorney, may be a bit 'heavy handed' for right now.

An MTD with prejudice will still give you some breathing room even if its denied. And who knows, rather that 'with' prejudice, the judge may determine to dismiss 'without' prejudice and either way, you're the winner.

RL

[ADSOFT]

The other route would be to file formal discovery and then a Motion to Compel? I want to do something preemptive though?

If the court is going to rule out evidence, then I might as well ask before trial to see if evidence can be ruled out?

Opininions.

[skippy1960]

The other route would be to file formal discovery and then a Motion to Compel? I want to do something preemptive though?

If the court is going to rule out evidence, then I might as well ask before trial to see if evidence can be ruled out?

Opininions.

IMO I would take a cut at MTDw/p fairly quickly based on the lack of information on BOP. Look at the timeline you still have 5 months till trail, so if you burn 40 days filing and setting a hearing date, even if you get shot down then you can file for discovery in plenty for time.

Not knowing the entire complaint you might end up with knocking out everything but the account stated claim if that is one of their counts. Now you are only dealing with 1 count in the complaint. It doesn't sound like they sent enough information to carry account stated base on BOP.

[calawyer]

Here is what the relevant part of the rule says:

It is not necessary for a party to set forth in a pleading the

items of an account therein alleged, but he must deliver to the

adverse party, within ten days after a demand thereof in writing, a

copy of the account, or be precluded from giving evidence thereof.

The court or judge thereof may order a further account when the one

delivered is too general, or is defective in any particular.

"Must" and "be precluded" are pretty specific.

There are two ways you can handle this. The first is to file a motion in limine or a motion to exclude evidence. It will be based upon the mandatory language of the statute and also the fact that plaintiff has refused to comply despite two attempts. The problem with this approach is that the Judge might give them another chance and order them to comply in another 10 days.

You could also simply wait until just before trial and then file the motion in limine (that is when courts are accustomed to seeing such motions. If you go that route, I would send the plaintiff a letter saying that the response to the BOP is deficient and you will ask the Court to exclude any evidence that has not been produced to date. The problem with this approach is that the plaintiff might produce further documents before you file the motion.

Good luck

[ADSOFT]

Calawyer,

Thank You for the response, very informative and helpful as usual, ....

Here is what the relevant part of the rule says:

It is not necessary for a party to set forth in a pleading the

items of an account therein alleged, but he must deliver to the

adverse party, within ten days after a demand thereof in writing, a

copy of the account,

.

I think this is how the Plaintiff interpeted the rule. Plaintiff just gave me an account # and claim that the request was out of scope

There are two ways you can handle this. The first is to file a motion in limine or a motion to exclude evidence. It will be based upon the mandatory language of the statute and also the fact that plaintiff has refused to comply despite two attempts. The problem with this approach is that the Judge might give them another chance and order them to comply in another 10 days.

I think filing a motion to exclude evidence might be the way to go. If the Judge also states that the BOP is out of scope, regarding Amounts, Contract, Witnesses, etc. Then I can ask for all those items in formal discovery. ... however prior to that I might make a stab at MTD since plaintiff didn't go to one CMH and was late the the second, and court errored in looking up the local rule which CAN have a case dismissed for failure to appear at a CHM.

You could also simply wait until just before trial and then file the motion in limine (that is when courts are accustomed to seeing such motions. If you go that route, I would send the plaintiff a letter saying that the response to the BOP is deficient and you will ask the Court to exclude any evidence that has not been produced to date. The problem with this approach is that the plaintiff might produce further documents before you file the motion.

If I take the above approach I might also be able to do this?

... I will have some questions on the motion in Limine, and Motion to Exclude Evidence though.

I think MTD first though, there are some other things that were done in the case which were fishy. I might throw that in too.

There is one question that I have, I have run into literture that claims the defendent can ask for sanctions. Are you guys sure I can't ask for sanctions. I do have to take time to prepare.

Edited December 8, 2010 by ADSOFT

[Guest usctrojanalum]

Uhm, isn't a motion to dismiss with prejudice in essence the same exact thing as a motion for summary judgment?

[ADSOFT]

btw, I forgot to say that I wanted opinions on my approach/plan?

[rikkivs]

A motion for summary judgment asks the courts to rule on the merits of the case and asserts that there are no issues of material fact hanging out. One party says that the other party owes it money, and the other party admits to the debt or doesn't answer in the required time frame and this is the perfect situation for an MSJ. Motions for summary adjudication are similar but these can attack each cause of action line for line, so if you were charged with goods and wares delivered, monies had and received and account stated in CA, a motion for summary adjudication might challenge the merit of one of the causes of action like account stated. The judge might rule that the account stated cause of action lacks merit in your case, but goods and wares delivered might be applicable. So MSJ's and MSA's ask the court to rule on the merits of a case, provided that both parties agree to the same or similar set of facts.

On the other hand a motion to dismiss with prejudice can come from various perspectives. One can even bring a motion to dismiss for failure to state a claim or a motion to dismiss because opposing counsel missed a mandatory discovery deadline. Motions to dismiss might not be based upon the merits of a case; they can be based upon technicalities in addition to the merits of the case!

The end result of both types of motions could be the same but they are different things.

[skippy1960]

Further, to Riv's point assume you moved for MSJ or MSA, hanging on a single point of BOP as the poster's situation. I would think the court could not only deny the motion, but if there was no material fact in question CA/OC might prove there case and debtor looses. I don't know so someone may correct this if it isn't accurate. I could see it happening in order to clear a case.

[Guest usctrojanalum]

A motion for summary judgment asks the courts to rule on the merits of the case and asserts that there are no issues of material fact hanging out. One party says that the other party owes it money, and the other party admits to the debt or doesn't answer in the required time frame and this is the perfect situation for an MSJ. Motions for summary adjudication are similar but these can attack each cause of action line for line, so if you were charged with goods and wares delivered, monies had and received and account stated in CA, a motion for summary adjudication might challenge the merit of one of the causes of action like account stated. The judge might rule that the account stated cause of action lacks merit in your case, but goods and wares delivered might be applicable. So MSJ's and MSA's ask the court to rule on the merits of a case, provided that both parties agree to the same or similar set of facts.

On the other hand a motion to dismiss with prejudice can come from various perspectives. One can even bring a motion to dismiss for failure to state a claim or a motion to dismiss because opposing counsel missed a mandatory discovery deadline. Motions to dismiss might not be based upon the merits of a case; they can be based upon technicalities in addition to the merits of the case!

The end result of both types of motions could be the same but they are different things.

To dismiss a case with prejudice, the case needs to be heard on the merits. No judge is going to dismiss a case with prejudice on a technicality.

[calawyer]

To dismiss a case with prejudice, the case needs to be heard on the merits. No judge is going to dismiss a case with prejudice on a technicality.

There are several ways in California that a case can be dismissed. You can file a demurrer or a motion for judgment on the pleadings. These motions generally are what a law professor of mine called a "so what". You look at the complaint and say, I accept everything in the complaint as being true (just for the purpose of this motion) and the plaintiff STILL cant win. This is usually when a defense appears on the face of the pleadings such as the statute of limitations or a statutory privilege (i.e. the litigation privilege).

By "on the merits", Rikkivs is referring to motions that look to evidence. My law professor used to call them "yeah but" motions. You look at the complaint and say "yeah but" the evidence actually shows something else. This is most commonly done as a summary judgment or summary adjudication motion in California. The motion asks the Court to find that all of the evidence supports your position and the other side has no evidence to support its position. It is a tough motion to file or oppose because there are many procedural requirements (they must be supported by declarations, you have to prepare a "separate statement", etc). Put it this way, summary judgment motions usually leave my office in a box rather than an envelope.

[ADSOFT]

So if I ask for a motion to dismiss, and the judge dismisses w/o P then I basically delayed the case: Assuming that the same case can be reopened. However, Local rules state a case can be dismissed because you don't show up to your CMH: but doesn't state w/wo Pred???

Can you file multiple MSJs?

I want to take a stab at MTD w/P and use the two failed appearaces at CMH and lack evidence necessary to support a Contractual obligation with the printout sent by Plaintiff in resonse to BOP?

If that fails then I can do discovery, but if I ask for all docs to form an Obligation I might be doing thier homework for them?

Maybe filing motion to expell evidence and just ask for all docs and witnesses in discovery should be enough?

The more I think about it, unless they have a witness that sent out the agreement, then will be pretty hard for JDB to prove that the contract they are supplying is associated with the account, HENCE contract can't be assigned, so only the OC can sue and Win!!!! Even statements would only prove a debt but not legal assigment.

[calawyer]

So if I ask for a motion to dismiss, and the judge dismisses w/o P then I basically delayed the case: Assuming that the same case can be reopened. However, Local rules state a case can be dismissed because you don't show up to your CMH: but doesn't state w/wo Pred???

Can you file multiple MSJs?

I want to take a stab at MTD w/P and use the two failed appearaces at CMH and lack evidence necessary to support a Contractual obligation with the printout sent by Plaintiff in resonse to BOP?

If that fails then I can do discovery, but if I ask for all docs to form an Obligation I might be doing thier homework for them?

Maybe filing motion to expell evidence and just ask for all docs and witnesses in discovery should be enough?

The more I think about it, unless they have a witness that sent out the agreement, then will be pretty hard for JDB to prove that the contract they are supplying is associated with the account, HENCE contract can't be assigned, so only the OC can sue and Win!!!! Even statements would only prove a debt but not legal assigment.

If this were my case, I would not spend the time on the motion for non-appearance. If the Judge didn't do it at the time, she will never do it now. If they fail to show up AGAIN, come ready with the rule, say it is the 3rd time (or whatever) and launch in to a speech about how you are in pro per and you have figured out how to file documents and show up at court hearings and why is the plaintiff who is represented by a lawyer not held to the same standard?

I would either do a motion in limine (which is the motion to exclude evidence) or do a motion to compel compliance with the BOP. If you do the latter, the Court will set a deadline if it feels the response is inadequate. When the plaintiff fails to comply with the deadline, then you move to exclude evidence.

[ADSOFT]

If this were my case, I would not spend the time on the motion for non-appearance. If the Judge didn't do it at the time, she will never do it now. If they fail to show up AGAIN, come ready with the rule, say it is the 3rd time (or whatever) and launch in to a speech about how you are in pro per and you have figured out how to file documents and show up at court hearings and why is the plaintiff who is represented by a lawyer not held to the same standard?

I would either do a motion in limine (which is the motion to exclude evidence) or do a motion to compel compliance with the BOP. If you do the latter, the Court will set a deadline if it feels the response is inadequate. When the plaintiff fails to comply with the deadline, then you move to exclude evidence.

Thanks Calawyer,

I will take approach or something close to it.

[foreshock]

I would either do a motion in limine (which is the motion to exclude evidence) or do a motion to compel compliance with the BOP. If you do the latter, the Court will set a deadline if it feels the response is inadequate. When the plaintiff fails to comply with the deadline, then you move to exclude evidence.

But before filing any motions, one's initial response to unanswered discovery should be with letters requesting a response, yes?

[skippy1960]

But before filing any motions, one's initial response to unanswered discovery should be with letters requesting a response, yes?

This is correct, you should send a letter and remind them of the expectation to answer in timely fashion based on rules of civil procedure, of coarse best to send CMRR. Be reasonable and give a next drop dead date.

Then prepare your moiton to compel answers. Need to understand in Calif. you need to notice your motions. This measn you need to call the clerk and get a date of hearing. Rules or court or procedure dictate timing, in many cases it is 30 days out. The Notice of Motion and Motion to Compel need to be filed along with proof of service to other side. Finally there is a moiton fee in my are it is $40 bucks.

So as you can see alot of paper and work involved.

[foreshock]

This is correct, you should send a letter and remind them of the expectation to answer in timely fashion based on rules of civil procedure, of coarse best to send CMRR. Be reasonable and give a next drop dead date.

Thanks Skippy. The letters will be in the mail tomorrow, CMRR with a Proof of Service. And, I will be including one for the BOP. The new due dates will be the same durations as before. After that, I will begin work on the motions. (Fyi, I had two cases going. I just wish I found this forum a year ago.) Thanks again.

[foreshock]

Thanks Skippy. The letters will be in the mail tomorrow, CMRR with a Proof of Service. And, I will be including one for the BOP. The new due dates will be the same durations as before. After that, I will begin work on the motions. (Fyi, I had two cases going. I just wish I found this forum a year ago.) Thanks again.

Would the above still be true even though the latest due date was 12/3/10?