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helpYoSelf

general question about what to expect at Motion to compel BOP

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I filed to have a motion to compel bop (or preclude as Calawyer explained I should do and I did)  and it is SOON- I'm wondering what to expect during the hearing.  A little background info: 

 

1) I'm in CA 

2) a tentative ruling will be posted the day prior to the date

3) I have rec'd the plaintiff's opposition to the motion

4)Im in the process of writing up my reply

 

What happens if am granted my motion to compel? or the motion to preclude? 

 

What happens if it is denied? Do I go to court the next day regardless? I'm afraid not to go so I'm pretty sure I will go either way.....just looking for a little insight. Thanks in advance!! :)

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I filed to have a motion to compel bop (or preclude as Calawyer explained I should do and I did)  and it is SOON- I'm wondering what to expect during the hearing.  A little background info: 

 

1) I'm in CA 

2) a tentative ruling will be posted the day prior to the date

3) I have rec'd the plaintiff's opposition to the motion

4)Im in the process of writing up my reply

 

What happens if am granted my motion to compel? or the motion to preclude? 

 

What happens if it is denied? Do I go to court the next day regardless? I'm afraid not to go so I'm pretty sure I will go either way.....just looking for a little insight. Thanks in advance!! :)

 

Good Morning HelpYoSelf,

 

Post your reply here. This is your last chance to soldify your position with the Courts. Attack every argument because the GOAL is to have the COURTS side with you....So if you need ammo post it...You will know the day before your actual hearing whether it was granted. If Courts Grant... Copy from the website the exact wording of the order...call in and tell the Judge you would like to appear and get the order signed...you will need to let the otherside know that you're appearing...bring 3 copies of the order  for the judge to sign  then you will send a Notice of Entry Order along with the signed order and get it stamped and send it with POS..

 

If your motion gets denied then start your discovery process and ask for the same things....

 

HTHs

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I actually doubt they will respond. When pro se's take the offensive they don't have responses in their robo-litigation menu so they would actually have to read it and write up a response. That sounds like work and JDB's are allergic to work.

 

Of course, as helpme has said, be prepared for a response. Stranger things have happened but they will more than likely file a continuance to stall and then fold. Great job filing this motion.

 

The best defense is a good offense.

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Good Morning HelpYoSelf,

 

Post your reply here. This is your last chance to soldify your position with the Courts. Attack every argument because the GOAL is to have the COURTS side with you....So if you need ammo post it...You will know the day before your actual hearing whether it was granted. If Courts Grant... Copy from the website the exact wording of the order...call in and tell the Judge you would like to appear and get the order signed...you will need to let the otherside know that you're appearing...bring 3 copies of the order  for the judge to sign  then you will send a Notice of Entry Order along with the signed order and get it stamped and send it with POS..

 

If your motion gets denied then start your discovery process and ask for the same things....

 

HTHs

 Thanks that helps a lot! I have an actual thread that I've posted their opposition in it is here: 

 

http://www.creditinfocenter.com/community/topic/318018-sued-by-cach-when-do-i-send-bopdiscovery-docs/page-5

 

(the images are clickable but I still can't figure out how to make them large without having to click on them)

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Get your reply filed and to the plaintiff ASAP...needs to be on pleading paper and should include a defendant statement...something similar to:

 

 

Defendant XXXXXXXXXXX (hereinafter “DEFENDANT”) hereby replies to Plaintiff XXXXXXXXXXXX (hereinafter “PLAINTIFF”) opposition to DEFENDANT’S Motion to Compel further responses to Bill of Particulars as set forth below:

Defendent's Statement

 

On Date DEFENDANT served PLAINTFF with a Demand for Bill of Particulars. On DATE DEFENDANT received PLAINTIFF’S response to DEFENDANT’S Demand for Bill of Particulars which consisted of only XX (XX) months of billing statements. On DATE DEFENDANT served PLAINTIFF with a Meet and Confer letter informing PLAINTIFF’S response was inadequate because it did not include itemization of the account showing all charges and credits thereof.  Nor did PLAINTIFF provide any underlying contract referred to in the complaint nor any contract of assignment of the claim at issue in this litigation.  DEFENDANT requested complete and verified responses before DATE or DEFENDANT would move the Court for an order requiring further response or, in the alternative, an order precluding PLAINTIFF from offering any such evidence at trial. On DATE after no response had been received by DEFENDANT, DEFENDANT then filed for Motion to Compel further responses to Bill of Particulars. PLAINTIFF’S supplemental response was received by DEFENDANT on DATE after Motion to Compel further responses to Bill of Particulars had already been filed, however, PLAINTIFF’S supplemental responses still lacks itemization of the account showing all charges and credits thereof.  Nor did PLAINTIFF provide any underlying contract referred to in the complaint.  PLAINTIFF’s Supplemental responses included a generic, unintelligible, non-verified copy of a document titled “Cardmember Agreement and Disclosure Statement”, non-verified copies of Bill of Sale and Assignment.

 

Argument section should include something similar to:

 

 

California Code of Civil Procedure § 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.

 

            PLAINTIFF is mistaken that DEFENDANT is asking for many more documents than are required in a response to a Bill of Particulars under common count causes of action.  A Bill of Particulars requires the PLAINTIFF to itemize the total sum upon which the complaint is based.   Since PLAINTIFF’S complaint was framed in the form of common counts, DEFENDANT is entitled to demand a bill of particulars under California Code of Civil Procedure § 454, requiring PLAINTIFF’S to furnish DEFENDANT with the details regarding the items charged against him. (See Pike v. Zadig, 171 Cal. 273, 276-277 [152 P. 923]Salinas Valley Lumber Co. v. Magne-Silica Co., 159 Cal. 182, 186 [112 P. 1089]Farwell v.Murray, 104 Cal. 464, 466 [38 P. 199]; and see Lewin v. Merck & Co., Inc., 209 Cal.App.2d 131, 133 [25 Cal.Rptr. 619].) As stated in Meredith v.Marks, 212 Cal.App.2d 265, 269 [27 Cal.Rptr. 737]:  “The rationale of the requirement of our code system of pleading that a bill of particulars be furnished upon demand in connection with litigation concerning accounts is that such a bill of particulars amplifies the pleadings to which it relates in the nature of a more specific allegation of the facts claimed to exist." It has also been said that the purpose of a bill of particulars is to apprise the defendant of the details of the plaintiff's claim in order that the defendant may intelligently present his defenses. ( Butler Bros. v. Connolly, 204 Cal.App.2d 22, 24 [22 Cal.Rptr. 175]Gilmore v. Hill, 152 Cal.App.2d 881, 882-883 [313 P.2d 898].)

 

            PLAINTIFF’S statement DEFENDANT did not dispute the charge-off amount as the basis for their claim of Account Stated is presumptuous and incorrect.  PLAINTIFF states an action on an account stated is not subject to a Request for a Bill of Particulars, is however, irrelevant as it concedes two (2) causes of action for which a Demand of Bill of Particulars is appropriate.  PLAINTIFF agrees that claims for Money Lent and Unjust Enrichment are subject to a Request for Bill of Particulars as stated in their opposition to compel further response Bill of Particulars, and to further the argument, DEFENDANT refers to the following cases:  (1) Money Lent:  Moya v. Northrup, (1970) 10 Cal. App. 3d 276, 280; (2) Unjust Enrichment: Firpo v. Pacific Mut. Life Ins. Co., (1926) 80 Cal. App. 122, 125;

 

         

CONCLUSION

 

PLAINTIFF’s response to DEFENDANT’S request for Bill of Particulars is inadequate.  The Court should require plaintiff to supplement its response immediately and produce all statements pertaining to this account from inception showing all payments made and charges to the account at issue, see Burton v. Santa Barbara Nat’l Bank (1966) 247 Cal.App. 2d 427, 433.  In addition, plaintiff should produce the signed contract referred to in the complaint and any agreement assigning the claims at issue to the plaintiff.  In the alternative, the Court should enter an order pursuant to Code of Civil Procedure section 454 precluding the plaintiff from offering any such evidence at trial.

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And if you have to go to court for the motion to compel, just argue your side.  

 

Your honor, I've given the plaintiff more than amble time to provide this information, information they should have had prior to filing suit.  I've been more than patient and hate having to ask the court to step in, but with their lack of response and use of boiler plate objections, they really leave me no choice....make sure you point out the inconsistencies the have in their documents (you filed an answer where they say you didn't, trial date has been set, etc...)

 

Good luck!

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Yes, get the reply in...you have only 5 Court days from the date of the hearing and you must overnight your reply to the otherside. Get it filed with Courts and don't forget POS.

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Thank you so soooo much! I will get right on this....(I've had trouble being able to post on the forums today- my connection is acting wonky) but I was able to read all the responses and I will do this tonight and serve/file tomorrow -first thing! Thanks again!!  

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