doublethefun9941

California Unlimited Jurisdiction Case Process- Need Help

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Need advice on best way to beat or discredit an Affidavit or Declaration from a creditor in an unlimited jurisdiction case.

I am currently in the discovery phase of California unlimited jurisdiction case (over $25,000) against an original creditor. I have beat lawsuits by original creditors and junk debt buyers in limited jurisdiction cases before, but this is my first unlimited case. After doing quite a bit of research on this website and others across the internet, I have found it very difficult to get information on which California codes (CCP) apply to limited vs unlimited jurisdiction cases. Specifically as it relates to Affidavits or Declarations made by the creditor.

Typically, in a California limited jurisdiction case I follow this general process used by many CIC members on this site. They include:

1)Answer Complaint

2)Send Bill of Particulars

3)Various types of Discovery- 35 max CCP §§94-95

4)Motions if required

5)Request Witness List, CCP §96(a)

6)Subpoena Witness after receiving Affidavit in Lieu of Testimony, CCP §98

7)Motion in Limine

8)Trial, maybe or maybe not witness shows up.

Its a simple process and it works very well but you need but you need limited jurisdiction codes to do it.

Common California Codes used only in Limited Jurisdiction Cases:

CCP §§94-95 , limits on Discovery allowed only to the extent permitted which max out Discovery requests at 35 interrogatories, production of documents and admissions

CCP §96(a), Either party may serve a request for disclosure of witnesses who will be called, and documents, photographs, and other evidence that will be offered at trial. . Make the request on the mandatory Judicial Council form, Request for Statement of Witnesses and Evidence—For Limited Civil Cases (Under $25,000) (Judicial Council Form DISC-015).

CCP §98, A party may, in lieu of presenting direct testimony, offer the

prepared testimony of witnesses in the form of affidavits or

declarations under penalty of perjury.

Since the process mentioned above really can't be done in an unlimited jurisdiction case because the codes are not available, I am not sure the best way to fight the case through normal discovery. Especially as it relates to affidavits or declarations.

Since I cannot get the witness list through CCP 96, could I possibly get it through discovery using CODE OF CIVIL PROCEDURE SECTION 2034.210-2034.310. Requires a witness list during discovery 70 days before trial. Anyone know of any other way to get a witness let using another code or strategy?

Under CCP 98 my understanding is that a Affidavit in Lieu of Testimony is not admissible in unlimited jurisdiction and is therefore considered hearsay. Because of this it seems there is no need to Subpoena the declarant to come to court because really I don't want them to show up anyway. It would be better just to see if they have a witness stated on a witness list, and this witness works for the original creditor. Especially since there are costs associated with getting a subpoena witness to Trial. Plus I am not even sure how to subpoena someone in another state. It seems it would be better to just prepare for cross examination of this witness at trial. If for some reason I still wanted a person to show for trial (likely located in another state) would subpoena SUBP-001 and SUBP-002 still apply per CCP 1985 & 1987 in an unlimited jurisdiction case?

Also, I have also noticed that some courts like Orange County and Santa Clara (maybe others) require other rules in unlimited jurisdiction cases. Things such as joints statements between plaintiff and defendant lawyer for Case Management Conference instead of just filing out CM-110. Joint production is also required for the Pre-Trial Statement and a Joint Witness List. Has anyone actually had to do these in a unlimited case or know the process for working these documents out with the Plaintiff's lawyer?

Any help would be appreciated.

Edited by doublethefun9941
Title not recommended on CIC
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I'm in the same situation. I want to discount the plaintiff's declarant, but because this is 'unlimited', i can't find the correct code of procedure to do so. I thought I could use CCP98, and I don't see that I really CAN'T, but I don't want to look like a moron including something that doesn't apply.

Much of her declaration is hearsay and I don't think it is admissible, mainly because she has been in cases where she's been found to be a robo-signer. I'd like to subpoena her, but I just don't know where to turn. Please let me know if you find any more.

Thanks.

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The limits to discovery are removed in unlimited civil. It's possible to have multiple rounds of discovery.

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Thank you racecar and 1stStep for you input. Racecar, That document was extremely helpful.

kb917, is the affidavit by a junk debt buyer or original? Is the lawsuit junk debt buyer or original? How close to trial are you.

I did speak to a lawyer the other day about this issue and he told me that the affidavits are considered hearsay in an unlimited trial. But you still want to file a motion in limine to make sure it is excluded as hearsay.

As I have never gone through a trial in unlimited I am really just guessing, but my advice would still be not to supoena. I don't see any benefit in forcing someone to show up who may have information the judge will take as fact. But if the affidavit is by a junk debt employee then I probably would supoena. They have no ability to speak on the account as they do not have personal knowledge and access to the records. Either way you should find out if they are calling a witness, CCP 2034.210. Then you can at least prepare for the witness. Hopefully someone who has gone through an unlimited trial will chime in. kb917, Please keep us updated.

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My case is with an OC. The trial date is set for December 3, but they have filed a motion for summary judgement. I am filing my opposition - their entire basis for their evidence hinges on this woman. Here is the case that was dismissed because of her testimony:American Express Bank v. Tancreto and here is an article about it.

Now, I am sure I can't use CCP 98 in this case - as it is unlimited. It would be nice to use it since she signed in Maine. But if her declaration (NOT an affidavit) is really considered hearsay, I'd like to do something about that. And, she admits in her declaration that they cannot find the application that established the account. Nor have they included the original agreement upon which the account was established. I'm throwing darts here - just trying to see what sticks.

Thanks for the input...I don't want to have her entire declaration discounted, as it contains the admissions that she can't find the contract. I am just going to have to go line by line and dispute what is 'disputable' I think.

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I did speak to a lawyer the other day about this issue and he told me that the affidavits are considered hearsay in an unlimited trial. But you still want to file a motion in limine to make sure it is excluded as hearsay.

I did find this quote from the OC Courts website: In small claims court police reports and medical bills can be introduced into evidence without having the police officer or doctor in court to authenticate the document. In a Limited or Unlimited Civil case these out-of-court statements (called hearsay under the rules of evidence) are generally not allowed, particularly if you want to use them to prove the information that is in them. This is one of the reasons why it is difficult for non-lawyers to try a case in the Superior Court. The rules of evidence are complicated and can make it difficult to get evidence into the court record.

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kb917, thanks for the additional information. My case is also an OC but we are still in discovery.

Have they provided any statements from a $0 balance to the demand amount? After reading your posts I have continued to do research on the declaration and it does appear they are almost always considered hearsay.

Yet you are in a unique position where you can use the declaration against them. I'm not this far along in my case but if it was me I would possibly use the opposition to MSJ to show the court you have not received a copy of the contract and they admit they have no contract. I think no contract would get the MSJ denied and at least get you to trial. But if they are admitting they have no contract and not enough statements, I would later put that in a motion in limine which really should be enough to get you to win at trial. Plus, if the bank rep. does not show up to trial, I would tell the judge they have not provided a contract or adaquate statements . At that point it may be prudent to just have the declaration thrown out as hearsay.

I think you caught a great break with this case. Why someone would say they don't have a contract in their declaration is beyond me.

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That's what I thought when I read it - uh...you're admitting you have no application? OR an original agreement? Ooookaaay, thanks? Ha.

They do have statements, which is why I am not going for the MIL. On top of all of this, the woman in the declaration has been found guilty of robo-signing and robo-testimony. AND, tons of stuff in the news about a certain BIG NAME CREDITOR (who shall remain nameless;) ) who is now being forced to refund customers over $85mil in interest and late fees (the exact type of account in this suit).

I want to buy as much time as possible to see how THAT plays out. If it turns out they have to refund this account, it may need to be moved to Limited Civil. Wouldn't THAT be something?

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My case is with an OC. The trial date is set for December 3, but they have filed a motion for summary judgement. I am filing my opposition - their entire basis for their evidence hinges on this woman. Here is the case that was dismissed because of her testimony:American Express Bank v. Tancreto and here is an article about it.

Now, I am sure I can't use CCP 98 in this case - as it is unlimited. It would be nice to use it since she signed in Maine. But if her declaration (NOT an affidavit) is really considered hearsay, I'd like to do something about that. And, she admits in her declaration that they cannot find the application that established the account. Nor have they included the original agreement upon which the account was established. I'm throwing darts here - just trying to see what sticks.

Thanks for the input...I don't want to have her entire declaration discounted, as it contains the admissions that she can't find the contract. I am just going to have to go line by line and dispute what is 'disputable' I think.

You don't want to "use a CCP 98". That is a strategy the debt collector wants to use.

Affidavits are permitted in support of summary judgement. They are not permitted at trial (unless CCP 98 applies and is complied with).

You do, however, need to respond to the summary judgment motion and object to the declaration. Was it sworn before a notary public? If not, does the declarant "swear under penalty of perjury under the laws of the state of California that the foregoing is true and correct?"

If not, the declaration violates CCP 2013 or 2015.5 .

Of course, even if the affidavit does comply with these sections, there are many other reasons to object. Does the affiant say that she has personal knowledge of the facts? Does the affiant state facts showing that she has personal knowledge? Does the affidavit include hearsay statements, etc.

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You don't want to "use a CCP 98". That is a strategy the debt collector wants to use.

Affidavits are permitted in support of summary judgement. They are not permitted at trial (unless CCP 98 applies and is complied with).

You do, however, need to respond to the summary judgment motion and object to the declaration. Was it sworn before a notary public? If not, does the declarant "swear under penalty of perjury under the laws of the state of California that the foregoing is true and correct?"

If not, the declaration violates CCP 2013 or 2015.5 .

Of course, even if the affidavit does comply with these sections, there are many other reasons to object. Does the affiant say that she has personal knowledge of the facts? Does the affiant state facts showing that she has personal knowledge? Does the affidavit include hearsay statements, etc.

When I say "use CCP 98", I meant that they violated it and I could use it against them...but that doesn't apply since it is unlimited.

The declaration is sound as far as the declarant "swear(s) under penalty of perjury under the laws of the state of California that the foregoing is true and correct?" She did that, yes. However, she states that she has personal knowledge of the facts. There are quite a few hearsay statements in the declaration as well...alluding to the fact that because they practice business one way, that it must apply here, even if she doesn't have all the evidence.

I have already sent the opposition to the motion, but I did not send an opposition to the declaration. Is that separate? I did note in my opposition that I opposed the declaration...is that enough? Or should I also send an opposition to the declaration under separate cover?

Thanks.

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kb917,

If you already filed your opposition to MSJ, I would definitely bring up you opposition to the declaration in your motion hearing. Also, you should see if they reply to your opposition. Sometimes they will put additional information in it that you may want to know about before the hearing.

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I am getting to the point in my case where I may have to write a Motion in Limine (CRC 3.112) and/or a Motion to Exclude Evidence BOP (CCP 454). However, I am a bit confused because I have seen people do it so many different ways. Some say do a Motion to Exclude BOP and add it to the end of a Motion in Limine. Esentially two motions in one complete document. Others say only file a Motion in Limine and just make reference to excluding BOP documents in the Motion in Limine Memorandum. I would prefer to keep the motions completely separate as the Motion in Limine is more about witness declarations and the Motion to Exclude BOP is just for BOP documents. Also, am I allowed to file two motions at one time? Motion in Limine where I live is 10 days before trial and ruled on at trial I believe. Would a Motion to Exclude BOP also be submitted 10 days before or is it submitted well before trial like a Motion to Compel for example. If its submitted the same day as the Motion in Limine is it also heard at trial?

One other question about CCP 454. Can you exclude evidence when they give you an incomplete response or only when they give you no response.

Edited by doublethefun9941

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I filed my opposition and unfortunately, I was not prepared enough in that opposition, as the judge granted the MSJ. He noted that while I brought up items worth a defense, I did not have any evidence to support my issues.

I would suggest that, even if you aren't sure you can do two motions at the same time (I think you can), do it anyway. Better to 'over-do' it than not enough.

Unfortunately, in my case, I lost. I did file BK just in time, though (my case was over $25,000 and no way I can afford it). At least their lawyers had to spend time and money to fight me. 8-)

Good luck. I wish I knew more. Try contacting calawyer...they really know their stuff and were very helpful to me.

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That's too bad KB917, sorry to hear it. Thank you for your input.

Does anyone out there have a Motion to Compel ROGS (or POD) in which the credit card company responded but their response in incomplete. I have seen a couple of examples on this site, including the one from calawyer written in L.A. County, but they all are for no response. I am not sure how to modify these examples from no response to an incomplete response. Any suggestions or examples? Thanks

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Play. you are trying to get the declaration out use the ccp 2015.5, the 150 mile rule, also use the evidence code to knock it out. and use the banking codes against them.

to try to get the witness list make form interrogatories requests for that:

http://www.courts.ca.gov/documents/disc001.pdf

and then they are kinda on the hook. you can go after the names of in state witnesses. also look into the cases they had before and see if the plaintiffs have a recurring witness.

My case is with an OC. The trial date is set for December 3, but they have filed a motion for summary judgement. I am filing my opposition - their entire basis for their evidence hinges on this woman. Here is the case that was dismissed because of her testimony:American Express Bank v. Tancreto and here is an article about it.

Now, I am sure I can't use CCP 98 in this case - as it is unlimited. It would be nice to use it since she signed in Maine. But if her declaration (NOT an affidavit) is really considered hearsay, I'd like to do something about that. And, she admits in her declaration that they cannot find the application that established the account. Nor have they included the original agreement upon which the account was established. I'm throwing darts here - just trying to see what sticks.

Thanks for the input...I don't want to have her entire declaration discounted, as it contains the admissions that she can't find the contract. I am just going to have to go line by line and dispute what is 'disputable' I think.

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One other question about CCP 454. Can you exclude evidence when they give you an incomplete response or only when they give you no response.

These are the relevant ones. I Know where you can find a MTPreclude.

Right here.

Caption

TO PLAINTIFFS AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on ___________________at ______ in department XX of the above entitled court, located at Court address, Pro per, Defendant will and does hereby move the court for an order precluding the giving of evidence due to plaintiff's failure to respond to defendants plead Bill of Particulars Cal. Code of Civ. Proc. (CCP)1§454, or in the alternative to compel a complete response without objections

This motion is made pursuant to CCP §454 on the grounds that the plaintiffs have failed to respond to defendants plead Bill of Particulars served on October , 2012. This motion is based upon this notice of motion, the attached motion, the memorandum of points and authorities, the declaration of Pro Per and attached exhibits and the defendant requests the motion be heard on shortened notice. The shortened time is to allow the court to rule on the motion before the demurrer and before pleading is complete. The motion concerns a pleading matter and can thus be heard on short notice. Defendant will be present at the hearing. CCP§1005(13)(B) provides for the hearing of the motion on a shorter time as allowed by the court or a judge.

Dated 12th day of November, 2012

Pro Per

In Propria Persona

MOTION TO PRECLUDE GIVING EVIDENCE OR IN THE ALTERNATIVE TO COMPEL BILL OF PARTICULARS PURSUANT TO CCP §454

  1. INTRODUCTION & RELEVANT BACKGROUND

Defendant Pro per respectfully submits the following Memorandum of Points and Authorities in support of her Motion to preclude the giving of evidence or in the alternative to compel Bill of Particulars pursuant to CCP§454. The plaintiffs have failed to respond to defendants plead Bill of Particulars dated <date>.Declaration of Pro Per(Decl.)2 & 3 Defendant has sent a letter to meet and confer and mandated a response by <date> which was a short extension of time to ensure fairness to plaintiff.(Decl.)4

Plaintiffs counsel did not respond to the Bill of Particulars nor the letter to meet and confer about the issue. Plaintiffs have failed to amplify the pleadings which were vague and ambiguous, and have failed to show the documentation that counsel reviewed to support a good faith basis for filing suit according to Cal. Civ. Code (CCC)2128.7. Without a response, the plaintiffs have defaulted on their responsibilities under CCP§454, CCC§128.7, and the Holding in Burton v. Santa Barbara Nat'l Bank, 247 Cal. App. 2d 427 (Cal. App. 2d Dist. 1966)

On date, 2012 Plaintiff filed the instant suit for monetary damages in the sum of $x,xxxx.xx. In the Complaint, Plaintiff claims this amount accrued under a written agreement between the parties. Plaintiff’s Complaint, however, is fatally flawed.

Plaintiff neither attaches a copy of the purported agreement with Defendant to its Complaint, nor pleads any of the essential elements of the alleged agreement. The lack of an agreement or, alternatively, a recitation of its terms, leaves Defendant completely in the dark as to the basis of the claim being asserted against her by an entity which is completely unknown to her.

Plaintiff fails to plead the elements of an open book account nor an account stated which is demurrerable if the other causes of action are demurrerable.(Complaint) They have not plead mandatory elements for common counts of goods, wares, and merchandise sold and delivered to defendant and for which defendant promised to pay Plaintiffs. (Demurrer)

Plaintiff conspicuously fails to provide information regarding the date the purported agreement was entered into or even the subject of the agreement. Not only does Plaintiff’s vague complaint fly in the face of the interests of justice, such pleading is prohibited by statute.

As set forth in more detail below, Plaintiff has wholly failed to meet its statutory obligations under CCP §454, and Defendant respectfully requests that the Court grant Defendant’s Motion to preclude the giving of evidence or in the alternative to compel Bill of Particulars.

II. ARGUMENT

The Defendants Bill of Particulars was properly served on Plaintiffs on <date>. (Decl.)¶3 The Bill was a proper pleading according to CCP454. CCP 454 States:

'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.

If the pleading is verified the account must be verified by the affidavit of the party to the effect that he believes it to be true; or if the facts are within the personal knowledge of the agent or attorney for the party, or the party is not within the county where the attorney has his office or from some cause unable to make the affidavit, by the affidavit of the agent or attorney.'CCP 454

Here, the defendant complied with the statute, but was given no response. A good guy then mailed a letter to meet and confer and gave an additional 5 days for response. (Decl. ¶4). The present motion was filed to due to pending demurrer hearing and any possible short interval to plead. The defendant requests this court grant the preclusion of giving of evidence due to the plaintiffs default in responding. The statute makes no provisions for curing default by submission of the Bill of Particulars response past the deadline. So when the plaintiff fails to respond preclusion is the only remedy.

"While here the demand was ignored by plaintiff and there was a total failure to furnish an account or bill within the statutory time and the court would have been justified, on defendant's motion, to impose the statutory penalty, instead, defendant noticed motions for account and bill of particulars and for further account and bill receiving in return therefor a paper entitled "Bill of Particulars" constituting none of the items demanded or ordered by the court; no further bill was thereafter filed. Then finally, in accord with the procedure set up in Conner v. Hutchinson, 17 Cal. 279, 282, affirmed in McCarthy v. Mt. Tecarte Land & Water Co., 110 Cal. 687, 693 [43 P. 391], defendant moved for and obtained an order excluding the evidence. Actually, this case is similar to Banchero v. Coffis, 96 Cal.App.2d 717 [216 P.2d 151], in which a document entitled "Bill of Particulars" was so inadequate as to constitute not any kind of itemization or description of plaintiff's claim. The court said at page 721: "The situation thus presented was not the everyday case where the bill 'delivered is too general, or is defective in any particular' and where it is common practice for the judge to order a further account. The paper delivered was no bill of particulars at all, and did not pretend to be. It amounted to a total and unqualified noncompliance with the demand. In such case the extreme penalty provided by the section, of precluding the giving of evidence to prove the claim, is applicable ( Graham v. Harmon, 84 Cal. 181, 185 [23 P. 1097]; McCarthy v. Mt. Tecarte Land & Water Co., 110 Cal. 687 [43 P. 391]; Fisher v. Brotherton, 82 Cal.App. 532, 540 [255 P. 854], and McManus v. Larson, 122 Cal.App. 716 [10 P.2d 523])."Burton v. Santa Barbara Nat'l Bank, 247 Cal. App. 2d 427 (Cal. App. 2d Dist. 1966

Cont....

Edited by Seadragon

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Code of Civil Procedure section 454 governs the use of a Bill of Particulars in California. Pursuant to this section, a plaintiff need not detail all items of an account in the complaint. However, upon request, that plaintiff must provide all such information within 10 days or be precluded from introducing such evidence at trial:Furthermore, a request for a Bill of Particulars is appropriate whenever the cause of action is not only an account stated claim. In addition,

"while modern discovery devices may serve the same purpose as a bill of particular it should be noted the primary purposes of discovery is the production of evidence for use at trial while that of a bill of particulars is to amplify the complaint 'in order to make it easier for the defendant to prepare his pleading"'. Dobbins v Hardister 242 Cal. App. 2d 787.(emphasis added)

III. CONCLUSION

Presently plaintiff's failure to respond to the pleading is of the same legal effect as a defendant who does not answer a complaint. A default in pleading has sever penalties as outline in the caselaw and statute. As previously stated, Burton v. Santa Barbara Nat'l Bank makes the moving for preclusion meritorious when a plaintiff refuses to respond to proper pleadings.

In this case, the defendant was overly indulgent in an effort to get the information to properly plead. Any represented parties counsel would have done the same before asking for preclusion. With no response, the court would have have to agree that preclusion is necessary to preserve the rights of defendant when plaintiffs have failed to exercise their responsibilities in this matter.

For the following reasons defendant would be without recourse to properly plead. Attempts to obtain the evidence which the plaintiffs relied on to form a basis and prima facie showing of alleged account particulars necessary in litigation and under CCC 128.7 have been willfully spurned. Defendant finds it necessary and proper to move for preclusion to preserve rights in litigation, and it is within this courts power to grant the motion and for costs of the motion.

PRAYER

Defendant respectfully prays for this court to preclude the giving of evidence to support their claims or in the alternative to compel response to the Bill of Particulars already plead, and for costs, and any further relief the court may deem proper. Defendant additionally requests the motion be heard on shortened time to comply with pleading statutes and to be heard before the demurrer scheduled for<date>(Decl.)7

Executed at anonymous, California, on this 12th day of November, 2012.

Pro Per

In Propria Persona

1Hereafter CCP

2Hereafter CCC

Adding this I found in the Mcarthy case.

"The books of a party are admissible in evidence only after preliminary proof has been made that the entries were correct at the time they were made, and that the

books were fairly and honestly kept. This may be shown by the oath of the party making the entry or by testimony of persons who have settled their accounts by said

books. ( White v. Whitney, 82 Cal. 163; Watrous v. Cunningham, 71 Cal. 30; 1 Smith's Leading Cases, 9th Am. ed. 577, et seq; Powell v. State, 84 Ala. 444;

Hancock v. Flynn, 54 Hun, 638; 8 N. Y. Supp. 133.) Money advanced or loaned is not a proper book entry, and a tradesman's book of account is not admissible to

prove items of money loaned. ( Le Franc v. Hewitt, 7 Cal. 186; Petit v. Teal, 57 Ga. 145; Vosburgh v. Thayer, 12 Johns. 461; Case v. Potter, 8 Johns. 211; Low v.

Payne, 4 N. Y. 247; Smith v. Rentz, 131 N. Y. 169; 1 Smith's Leading Cases, 9th Am. ed. 582, et seq., and cases cited.)"

McCarthy v. Mt. Tecarte Land & Water Co., 110 Cal. 687 (Cal. 1896)

In two of the cases it is shown that moving for preclusion at trial is not to be done but must occur before the trial. So I am reading that you have to do this as soon as it occurs because then there is no surprise at trial.

The cases show that 10 days before trial is however allowed.

Edited by Seadragon

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When the BOP response lacks authentication by personal knowledge.

The books of a party are admissible in evidence only after preliminary proof has been made that the entries were correct at the time they were made, and that the

books were fairly and honestly kept. This may be shown by the oath of the party making the entry or by testimony of persons who have settled their accounts by said

books. ( White v. Whitney, 82 Cal. 163; Watrous v. Cunningham, 71 Cal. 30; 1 Smith's Leading Cases, 9th Am. ed. 577, et seq; Powell v. State, 84 Ala. 444;

Hancock v. Flynn, 54 Hun, 638; 8 N. Y. Supp. 133.) Money advanced or loaned is not a proper book entry, and a tradesman's book of account is not admissible to

prove items of money loaned. ( Le Franc v. Hewitt, 7 Cal. 186; Petit v. Teal, 57 Ga. 145; Vosburgh v. Thayer, 12 Johns. 461; Case v. Potter, 8 Johns. 211; Low v.

Payne, 4 N. Y. 247; Smith v. Rentz, 131 N. Y. 169; 1 Smith's Leading Cases, 9th Am. ed. 582, et seq., and cases cited.)

McCarthy v. Mt. Tecarte Land & Water Co., 110 Cal. 687 (Cal. 1896)

For when the plaintiff ignores the BOP

McManus v. Larson, supra, 122 Cal.App. 716, is another case where the extreme penalty was imposed. Plaintiff there ignored the demand, and when, after a

warning by defense counsel, he persisted in ignoring it, the defense moved to exclude evidence and the court granted the motion. Plaintiff then, on the day when the

motion was granted, belatedly served a purported bill of particulars and later moved under section 473 for relief from his default. The latter motion was denied. At the

trial the court excluded plaintiff's evidence and entered judgment for defendant. The judgment was affirmed and both the order excluding evidence and the order

denying relief were upheld.

Banchero v. Coffis, 96 Cal. App. 2d 717 (Cal. App. 1950)

For when the plaintiff sends a BOP after the motion was filed. this is best to sum up that they cannot just magically produce without a motion to relieve default.

The record here does not disclose that the trial court has abused this discretion nor that it has failed to exercise it in a sound and legal manner. The fact that this court

might have reached, upon the same showing, an opposite conclusion, is not indicative of abuse of discretion upon the part of the trial court. ( Waybright v. Anderson,

supra.) It should be noted in this regard that the bill of particulars that was on file at the time this motion was heard was one, that by reason of its very general

statement and lack of assignment of dates, would have failed to comply with the requirements of section 454 of the Code of Civil Procedure. It should also be

pointed out that the question present here differs from that presented in many of the cases referred to by plaintiff in that in those cases the question of the excluding of

evidence was presented for the first time at the trial of the action, while here defendants made timely objection long before the time of trial. The fact that plaintiff made

a mistake as to the law in the matter of the bill of particulars of itself is no ground for relief under the circumstances here disclosed. ( Garroway v. Jennings, 189 Cal.

97, 99 [207 P. 554].) That the assignor was occupied with other affairs and so had no time to prepare the bill of particulars does not constitute an excuse for his

neglect in that regard. ( Andrews v. Jacoby, 39 Cal. App. 382, 383 [178 P. 969].)

McManus v. Larson, 122 Cal. App. 716 (Cal. App. 1932)

These are really good.

I didn't know this before but when they do not provide BOP in the time they are in default and must file a motion to relieve the default to file a BOP. So what I am gleaning from all that is the BOP/demurrer strategy is valid as the failure to respond to BOP leaves them in default and a more thorough pointing to the authorities makes the default a paramount thing and a good and better way than motion to strike in my opinion.

So a motion to preclude would necessarily shed the account counts and leave them only with account stated which can be trashed.

I worry about the people who BOP then answer because they may miss an opportunity to damage their case in the begginning. I understand it is hard in the beggining to sometimes understand the things necessary but if another party sues you should get all deputy dog about it.

I started a new thread about BOP and these concepts here as to not hijack the thread. http://www.creditinfocenter.com/forums/there-lawyer-house/318155-big-time-bop-discussion-here.html#post1213630

Edited by Seadragon

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Thank you seadragon. All that BOP information was incredibly helpful. Do you also happen to know where I can find a Motion to Compel Rogs when the Plaintiff responded but their response was incomplete. Expecially as it relates to getting the names of the witnesses.

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Thank you seadragon. All that BOP information was incredibly helpful. Do you also happen to know where I can find a Motion to Compel Rogs when the Plaintiff responded but their response was incomplete. Expecially as it relates to getting the names of the witnesses.

I think there is some around here somewhere in the sample motions sub forum of is there a lawyer in the house.

You are the first person I know who are pushing the issue, I mean trying to get that will only make them tighten up their argument. I mean best to let them ladeeda then at trial say booya your affiant is not proper.

The MTP though that will strip all that out. Best to slam them with that.

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That's too bad KB917, sorry to hear it. Thank you for your input.

Does anyone out there have a Motion to Compel ROGS (or POD) in which the credit card company responded but their response in incomplete. I have seen a couple of examples on this site, including the one from calawyer written in L.A. County, but they all are for no response. I am not sure how to modify these examples from no response to an incomplete response. Any suggestions or examples? Thanks

Hello doublethefun,

I do have a motion to compel rogs and mtc bop (both granted). However, in our rogs I only asked for the original credit application and any agreements before JDB and pro se. The mtc bop took care of the rest. If you're interested pls, pm me.

Helpme...

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Does anyone have a good objection to Form Interrogatory 112.1 to 112.5. I have seen objections for many other Form Interrogatory numbers but can find any for these ones. Any help would be appreciated.  

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Seadragon,

I was rereading your Motion to exclude and I noticed you do this in addition to a demurrer. Do you also happen to have a demurrer example? I am going to try your demurrer/BOP stratagy on another lawsuit with a Junk Debt Buyer. Thanks.

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