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Just lost my motion to preclude


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When I went into court this morning Seadragon sent me an argument document to file before going into court. They didn't even show up. I got to see the judge interact with another lawyer and noticed that he did give cues. So when it was my turn I simply stated why I was there. He asked if I had seen the tentative ruling. I said yes but that I would like to reiterate my case. I asked permission and he said he would prefer to not hear it. He stated that he DOES NOT read anything before court same day. I thanked him and left. I didn't see it appropriate to argue on his ruling, as he seemed to have his mind made up with the tentative ruling. The ruling is below:

 

Defendant served plaintiff with a demand for bill of particulars. Plaintiff provided a response and then a supplemental

response. Defendant contends that the responses were not timely and that the responses are not adequate. Defendant

moves for an order either excluding evidence or compelling a further response.

Plaintiff's objections to the notice are waived. (See

 

Carlton v. Quint (2000) 77 Cal.App.4th 690, 697-698.)

Plaintiff's initial response was timely. The ten-day period for the plaintiff's response was extended by five days for

mailing. (See Code Civ. Proc. § 1013(a).) The supplemental response was timely, as it was served within the time

specified by defendant.

Collectively, the responses are adequate. A further response is not warranted.

The motion is denied.

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Their BOP was only a statement on pleading paper with my name and charge off date and part of an account number. The request of the BOP was the standard BOP setting forth all items and details of the account on which the cause of action for goods, wares, and merchandise sold and delivered, of plaintiff's complaint is based, including the date of each transaction, a description of the services, materials or goods supplied ot other considerations rendered, the price or charge made for each item, and all payemtns or credits that have been made the account.

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Sadly I heard he was fair as Seadragon said he had found somebody else previously had him in her case where I'm located.

You never know he may rule favorably on the demurrer. I believe he was fair but should have given you a chance. Prep for the other hearing. and see how it goes. That is a shame because I had looked up where he was wrong in the legislative history in California AB 176(1939) and he was wrong. But the caselaw says it is up to his discretion and he has committed one appealeable error already.

 

Sorry it went all fast track on you.

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Yes- you've got one appealable issue...

 

Now here's the strategy question... appeal now, mid-trial, or afterwards?

have to wait for an appealeable order to appeal from. Judgment, MSJ, something that is a final order. I am thinking also that checking hopw the other judges rule may help. We have seen judges deny motions to strike and at the end Judgment for defndant. I see a shift in the courts totry todo away with BOP so what we really need is some practice tips from back in the day between 1939 and 1972.

 

You did good to go to court that allowed you to overcome nerves later in the game and sitting and observing helps alot.

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I hope I did ok, like I said I paid close attention to how the judge dealt with the case before mine and noticed when the lawyer suggested something and the judge said I really hope you don't do that. So when he essentially gave me the cue that he didn't want to hear my argument I took it seriously. I do not want to get on this judges bad side out of the gate. I would much rather have some more amo under my belt and know my case is waterproof, then I can get a little more snarky. The game is not over.... I remained calm due to the fact that I might have a totally seperate case, so that helped me as well. I also kept reminding myself if something did go wrong I could come back here and ask questions and carry on. THANK YOU everybody stay calm carry on!

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"He asked if I had seen the tentative ruling. I said yes but that I would like to reiterate my case. I asked permission and he said he would prefer to not hear it. He stated that he DOES NOT read anything before court same day. I thanked him and left."

Did you request arguments for your Motion after the Tenative Ruling? In counties that use the Tenative Ruling process in California, you must request arguements after the Tenative Ruling is posted, prior to a time certain the day before the hearing.

This would be why he did not want to hear your argument and why the otherside wasn't present. This is for future, not neccessarily, for this motion.

Very important otherwise the tenative ruling stands....

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I think it may be common for a motion to compel further BOP to get denied, however, sooner or later they will produce something and when you file a motion to exclude that evidence you can also argue that they did not produce that evidence in the response to the BOP, which prejudiced you to prepairng your defense.

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Personally, I don't think plaintif provided enough.  But fine. So now send a request for production seeking all statements from inception to alleged default.  And if you don't get them, file a motion to compel.  The judge will start to understand that plaintiff wanted to file this case but doesn't want to produce any of its "evidence".

 

Lots of discussion about demurrers lately.  Maybe we should sart a thread to discuss.  Personally, I don't think it is worth the effort unless the complaint shows that the claim is barred by the SOL or some other complete defense to at least one entire cause of action appears on the face of the complaint.

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Personally, I don't think plaintif provided enough.  But fine. So now send a request for production seeking all statements from inception to alleged default.  And if you don't get them, file a motion to compel.  The judge will start to understand that plaintiff wanted to file this case but doesn't want to produce any of its "evidence".

 

Lots of discussion about demurrers lately.  Maybe we should sart a thread to discuss.  Personally, I don't think it is worth the effort unless the complaint shows that the claim is barred by the SOL or some other complete defense to at least one entire cause of action appears on the face of the complaint.

Well I need to carry on with this one, but I have another one that I have to answer shortly as I was served again recently. What to do, what to do?  I didn't consider it a total failure but a small bump in the road. I will carry on but need to get prepared to argue the demurrer on Friday UGH........

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Well I need to carry on with this one, but I have another one that I have to answer shortly as I was served again recently. What to do, what to do?  I didn't consider it a total failure but a small bump in the road. I will carry on but need to get prepared to argue the demurrer on Friday UGH........

 

 

You do the same exact thing.  It is the tried and true method.

 

Remember, being a defendant is easier in Court.  You keep chipping away.  Motion to preclude here, motion to compel there.  Maybe a motion to dismiss or summary judgment motion if you have the time.  Motion in limine right before trial.

 

Plaintiff has to win at every step of the way or something bad happens.  The defendant gets to sit there and lob grenade after grenade at the plaintiff's case and any hit can be fatal.

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You do the same exact thing.  It is the tried and true method.

 

Remember, being a defendant is easier in Court.  You keep chipping away.  Motion to preclude here, motion to compel there.  Maybe a motion to dismiss or summary judgment motion if you have the time.  Motion in limine right before trial.

 

Plaintiff has to win at every step of the way or something bad happens.  The defendant gets to sit there and lob grenade after grenade at the plaintiff's case and any hit can be fatal.

Thanks I am ready to fight and keep fighting, I grew up as the underdog in more ways than one, I still feel like the underdog but this time around I feel like part of a gang and have the support of that gang. Not going to give up and let anybody feel like I didn't try.

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Losing this motion wasn't a big deal. It wasn't lost on the merits of your case. It was lost because you didn't account for the additional 5 days for mailing, right?  It's not like the judge said "No. These items are admissible". No big deal at all.

 

Keep fighting.

 

xboxingx

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