kb917

Special form for Discovery?

Recommended Posts

Hi all -

I am about to conduct discovery and am not sure if there is a special format that the discovery requests need to be in. I checked my state's (CA) court forms and the only forms that are there are for limited civil - mine is unlimited.

Do I basically list my demands / questions in a letter format? Please help - need to send out prior to week's end. AND - I do need to send the court copies of this, correct?

Thanks!

Share this post


Link to post
Share on other sites
Guest usctrojanalum

Do not send the Court copies. and what type of discovery are you trying to do? There are demands for production, iterrogs, BOP, etc.

Share this post


Link to post
Share on other sites

I am sending a demand for production of docs. I read a post on here that recommended asking for as little as possible during discovery, ie, 'please provide any and all documents you plan to use in court as evidence.' I am thinking of using this strategy, as nothing was provided in original complaint - no affadavit, no statements, no contract, etc. Just a blanket complaint. Hoping they didn't provide initially because they don't actually have it.

The judge has been pro-debtor in the past, and at the case mgmt hearing, he recommended that both parties 'try to work this out' outside of court. I have contacted the attorney via mail and phone, requesting a meeting, and haven't heard back. I figure, the burden is on them, I have done what the judge asked...they haven't. Hoping this might sway SOMEWHAT in my favor.

Do I need to have this in a special format, or just a formal letter?

Thanks.

Share this post


Link to post
Share on other sites

I'm no expert on CA law, but as I recall CCP96 and CCP98 apply. One asks them to produce to you all the documents they intend to introduce at trial. Check it out. CCP454 is the bill of particulars, if they sue for anything other than account stated, this applies.

Share this post


Link to post
Share on other sites

This isn't a JDB, but a law firm for the OC. Wouldn't a BOP serve better in a JDB case? Although, when I was scrolling through some other posts, I saw something that really caught my eye. It was a reference to case law, that stated:

"Even though the code authorizes a demand for a bill of particulars in an action “on an account,” it is not available in an action on an account stated. Distefano v. Hall, (1963) 218 Cal. App. 2d 657, 677.

An account stated is a new agreement by the parties which supersedes the original contract and account. Jones v. Wilton, (1938) 10 Cal. 2d 493, 498 .

Any action on it is therefore based on only the final balance agreed on by the parties and not on the original individual items of account. Hallford v. Baird, (1938) 27 Cal. App. 2d 384, 398. Therefore, itemization of the account is not possible.

If the information furnished is deemed too general or incomplete, the defendant may make a noticed motion for a further bill of particulars Burton v. Santa Barbara Nat’l Bank (1966) 247 Cal.App. 2d 427, 433.

If plaintiff delivers no bill of particulars, the court may bar plaintiff from introducing evidence at trial in support of the account claimed if the defendant makes a motion."

I find the portion that I denoted in BOLD to be quite interesting. This suit against me is for an 'account stated'. So, if I ask them for the BOP, is it moot?

Share this post


Link to post
Share on other sites

Hi LeagleEagle...

Yes, I did - thank you. The problem is that this is an unlimited civil, so the CCP96 doesn't apply. CCP98 - if I understand it correctly, is written testimony in lieu of appearing, correct? Not sure how that applies - can you explain why you'd recommend it (if that's what you are doing)?

I am pretty new at this, and appreciate everyone's valuable input. Wish there was an instruction manual. :?

Share this post


Link to post
Share on other sites

Me too, I know very little about CA procedure. See CALawyer or Seadragon. You must be in some sort of small claims court. If that is the case, must be a small amount, look into arbitration through the credit card agreement, this can cost them six figures, they won't do it. See Linda7. One of these forms I recommended (96 or 98) is to force the other side to divulge all the evidence they will use at trial.

Share this post


Link to post
Share on other sites

It is for over $25,000, which in CA is the reason it is in Civil Unlimited Court.

I have been dealing with this case for close to a year now, and the trial date has been set for early December. I will see if CA Lawyer knows what's best.

Thanks again!

Share this post


Link to post
Share on other sites

I sent out a bill of particulars three days ago - no way they have received and responded so quickly. I got a lovely 15-pound stack of statements and an 'amended' card agreement today, along with the Motion for Summary Judgement from the OC's lawyers. I am trying to stay positive, but they really have a lot here.

Nothing signed, of course, but it doesn't appear that here in California that a signed contract is a requirement.

Does anyone have advice on what steps I can still take? I am not opposed to filing BK, I just wasn't particularly keen on that route. Is it too late for arbitration? If so, would a judge ever lower the amount to be paid to the creditor as part of his decision?

Thanks. :cry:

Share this post


Link to post
Share on other sites

I sent out a bill of particulars three days ago - no way they have received and responded so quickly. I got a lovely 15-pound stack of statements and an 'amended' card agreement today, along with the Motion for Summary Judgement from the OC's lawyers. I am trying to stay positive, but they really have a lot here.

Nothing signed, of course, but it doesn't appear that here in California that a signed contract is a requirement.

Does anyone have advice on what steps I can still take?

I hear Costa Rica is nice this time of year, there are more Americans there than Costa Ricans.

I am not opposed to filing BK, I just wasn't particularly keen on that route.

Bankruptcy isn't as easy as one would think. It requires the approval of the federal government, and they conduct a rather intensive investigation.

Is it too late for arbitration?

For this amount, they'll pay and beat you up. ARB is no different than regular court. It does not work well at this level against an OC who has you by the shorties.

If so, would a judge ever lower the amount to be paid to the creditor as part of his decision?

Not a chance.

Share this post


Link to post
Share on other sites

Well, they filed for a MSJ. My options are pretty slim.

Does anyone know if they can file a motion to 'speed up' the MSJ hearing? I would like to call them, tell them that I can settle with them for 40%, payable in 3 payments. If they laugh, I will tell them that I have no other option other than file BK. I have very little disposable income, so wage garnishment would take FOREVER in order to satisfy the judgement. They can try to levy the bank account, but I can get around that. Also, they can place a lien on my property, but since there is no equity and I am not going ANYWHERE, the lien will probably have the chance to expire.

Any thoughts on them being able to speed up the MSJ hearing? I am not sure I want to reveal the intent to file BK if they can. Any input appreciated.

Thanks!

Share this post


Link to post
Share on other sites

What do you mean by speed up the hearing? Usually these happen within 30 days. You need to file an opposition, otherwise it will be granted and they'll have their judgment for the full amount. You can offer to settle, but usually it's more difficult when they have what they consider to be a win.

Share this post


Link to post
Share on other sites

I don't really know, lol. I just didn't know if it was possible, once they found out I might file for BK, for them to file some kind of motion to move up the date of the hearing. If they get the judgement prior to my filing BK, they have more power to get the full amount.

Share this post


Link to post
Share on other sites

BK stays all legal proceedings. Either file it or don't. Never use this as a bargaining chip in a court case, it is frowned upon. Judges have heard this countless times. Do it or don't do it. Don't bluff.

Share this post


Link to post
Share on other sites
Does anyone have advice on what steps I can still take?

I hear Costa Rica is nice this time of year, there are more Americans there than Costa Ricans. .

Unhelpful.

I am not opposed to filing BK, I just wasn't particularly keen on that route.

Bankruptcy isn't as easy as one would think. It requires the approval of the federal government, and they conduct a rather intensive investigation .

Where did you get this information?

If so, would a judge ever lower the amount to be paid to the creditor as part of his decision?

Not a chance.

Here is one way a Judge might do so: Plaintiff's demand for $25K includes an amount for interest using some crazy contractual rate under the cardmember agreement. However, plaintiff can't even produce the applicable contract much less get it admitted into evidence. Adios interest.

Share this post


Link to post
Share on other sites
This isn't a JDB, but a law firm for the OC. Wouldn't a BOP serve better in a JDB case?

JDB or OC, if we had a BOP here in NM, and I were being sued, I would send that BOP with my answer. When the 10 days was up, I would be calling the other side's attorney giving him 5 days to respond, and I would have the motion ready to go to get that stuff precluded. See, because the industry relies on default and stipulated judgments, that stuff never gets sent to the attorneys until its time for a MSJ, or something else that requires it. By hitting them with it so fast, there is a good chance that even if the OC does have all that stuff, they won't get it to you in time and you will get their evidence excluded.

Now then, as for account stated and BoP, is account stated the only thing they are using? Or did they include something else, such as breach of contract?

Share this post


Link to post
Share on other sites
Hi all -

I am about to conduct discovery and am not sure if there is a special format that the discovery requests need to be in. I checked my state's (CA) court forms and the only forms that are there are for limited civil - mine is unlimited.

Do I basically list my demands / questions in a letter format? Please help - need to send out prior to week's end. AND - I do need to send the court copies of this, correct?

Thanks!

A template for your RFP can be found in post number 23 of this thread: Another Cach lawsuit in CA - need a lot of help

A discussion of strategy for written discovery can be found here: http://www.creditinfocenter.com/forums/there-lawyer-house/315816-ca-asset-acceptance-open-acct-acct-stated-s-about-discovery-2.html

Share this post


Link to post
Share on other sites
I sent out a bill of particulars three days ago - no way they have received and responded so quickly. I got a lovely 15-pound stack of statements and an 'amended' card agreement today, along with the Motion for Summary Judgement from the OC's lawyers. I am trying to stay positive, but they really have a lot here.

Nothing signed, of course, but it doesn't appear that here in California that a signed contract is a requirement.

Does anyone have advice on what steps I can still take? I am not opposed to filing BK, I just wasn't particularly keen on that route. Is it too late for arbitration? If so, would a judge ever lower the amount to be paid to the creditor as part of his decision?

Thanks. :cry:

Research on-line court records and you will find some really helpful stuff from summons issued (always a standard judicial court form) all the way up to trial briefs.

The counties of San Mateo and San Francisco have free on-line document viewing and printing. You have to spend literally hours doing it but it will help you. I suggest you first research the cases filed by the same plaintiff that is suing you then branch out from there. I found this unlimited case the other day you might want to check out on the Superior Court of San Francisco web-site for an example of an unlimited default case CGC11515947.

As for a signed contract yes they can by-pass not having a contract using Declarations for everything from lost documents to accepting copies in lieu of originals. Seen them first-hand in my research but they were for default judgments which were never brought into question because they were not contested. If you question them they may be pretty easy to refute as I've seen all kinds of errors in those declarations and the evidence that they file to support their declarations. Dates not matching up etc.

I'm in California too but my case is limited. I created my own pleadings for discovery documents even though I could have used the California Judicial Forms, which I may tweak a bit more before I send them out but I figured out how to do mine by spending hours Googling for things like "Request For Admissions Propounded by Defendant." You have to follow a certain format here in Cali courts in those pleadings: Set Number etc. This is a good source. You can get the gist of the free part of the docs you can download. Have to sign up for an account but it can be helpful. Scribd

Also here is a good one to for free: http://www2.americanbar.org/calendar/gp-solo-2009-fall-meeting-and-national-solo-and-small-firm-conference-los-angeles-california/Documents/Credit%20Card%20Lawsuits.pdf

I also slammed them with a BOP (mine is for open book account stated) the same day I served them with my answer to their complaint. So far no response to the BOP. I think you can do a BOP if it was for money lent and good purchased too-not sure though. Check it out.

Carol-Lynn

Edited by SkippieB

Share this post


Link to post
Share on other sites

Now then, as for account stated and BoP, is account stated the only thing they are using? Or did they include something else, such as breach of contract?

No, it is for account stated, open book account and money due for goods sold/delivered. No breach of contract stated.

Share this post


Link to post
Share on other sites
Unhelpful.

Where did you get this information?

Here is one way a Judge might do so: Plaintiff's demand for $25K includes an amount for interest using some crazy contractual rate under the cardmember agreement. However, plaintiff can't even produce the applicable contract much less get it admitted into evidence. Adios interest.

Interesting news came out yesterday regarding Amex Centurion (my plaintiff). Oh, sweet karma. They are being forced to pay major fines and refund customers over $85 million. I am considering using this in my Opposition to Motion for Summary Judgement. Just not quite sure how to word it. I have nothing to lose at this point...I want to buy some time and let this go to trial instead of a judgement hearing. I was thinking something along the lines of:

1. Defendant has not completed discovery and therefore needs more time to ascertain whether plaintiff's claims are fact.

2. Plaintiff has failed to provide initial contract, has admitted that such document is 'unavailable', therefore claims on interest due and other fees are unverifiable.

3. In light of recent news events, including charges against the Plaintiff for unlawful practices, Defendant requests more time to ascertain whether or not Plaintiff used such practices against Defendant.

* I know #3 may be a long shot, but wouldn't it be awful if I spend all this time defending myself, then losing, only to find out that I am one of the customers that they are required to refund? This is what happened with my case with Chase. They were in the WRONG, big time, and ended up having to drop the suit. I wish this news story had come out a bit sooner, because I am playing with time here. Any suggestions on my opposition?

Thanks.

Share this post


Link to post
Share on other sites
Interesting news came out yesterday regarding Amex Centurion (my plaintiff). Oh, sweet karma. They are being forced to pay major fines and refund customers over $85 million. I am considering using this in my Opposition to Motion for Summary Judgement. Just not quite sure how to word it. I have nothing to lose at this point...I want to buy some time and let this go to trial instead of a judgement hearing. I was thinking something along the lines of:

1. Defendant has not completed discovery and therefore needs more time to ascertain whether plaintiff's claims are fact.

2. Plaintiff has failed to provide initial contract, has admitted that such document is 'unavailable', therefore claims on interest due and other fees are unverifiable.

3. In light of recent news events, including charges against the Plaintiff for unlawful practices, Defendant requests more time to ascertain whether or not Plaintiff used such practices against Defendant.

* I know #3 may be a long shot, but wouldn't it be awful if I spend all this time defending myself, then losing, only to find out that I am one of the customers that they are required to refund? This is what happened with my case with Chase. They were in the WRONG, big time, and ended up having to drop the suit. I wish this news story had come out a bit sooner, because I am playing with time here. Any suggestions on my opposition?

Thanks.

If you served discovery and have not received a response yet and won't receive the response before your brief is due, that may be a reason for the Court to give you more time. WHen is your brief due?

Share this post


Link to post
Share on other sites

The opposition needs to be filed by 10/15. I sent them a BOP and they responded with everything but the agreement and application.

Share this post


Link to post
Share on other sites

In addition, I just found a case American Express Bank v. Tancreto, in which the same woman that signed my declaration is accused of robo-testimony. Wonder if this is usable?

Share this post


Link to post
Share on other sites
Guest
This topic is now closed to further replies.