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Special Interrogatory Discovery Need Help with Input!


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Hi knowledgeable ones,

 

I finally received the interrogatories from CAP1/LRLO but I have trouble putting the response together. I read threads and know I was suppose to object them but just don't know how to put them in good words. The cause of action in the complaint was breach of written contract and account stated.

 

They did not attach all billing statement nor written contract with signature to my RFP. They only attached customer agreement and 2 years of billing statements.

 

I need help from you knowledgeable ones! What should I respond to the interrogatory because they look tricky?

 

Sorry if I sound stupid but I really need help from you guys!

Input is much appreciated!  ::daisy::

 

So here it is...

 

 

 

Plaintiff's First set of special interrogatories to defendant
 
  • Written Interrogatory:
 
INTERROGATORY NO. 1. 
 
State each ADDRESS at which you received mail during the last 5 years (for purpose of this interrogatory  ADDRESS means the street number, street name, city, state, and zip code).
 
INTERROGATORY NO. 2. 
 
IDENTIFY your contact information (for purpose of this interrogatory, IDENTIFY as it relates to contact information, means to provide the 10 digit phone number at your primary residence, your cell phone number, your employment phone number, and any other number at which you could be reached by phone).
 
INTERROGATORY NO. 3.
 
Is it your contention that you did not APPLY for credit with CAPITAL ONE BANK (USA), N.A. as set forth by the plaintiff in the plaintiff's complaint (for purposes of this interrogatory, APPLY means either sign an application, complete a phone application, or complete an online application).
 
INTERROGATORY NO. 4.
 
If your response to the preceding Interrogatory No. 3 is other than an unqualified negative, then state with specificity any and all facts that support your response.
 
INTERROGATORY NO. 5.
 
Is it your contention that your did not agree to the terms of a written agreement with CAPITAL ONE BANK (USA), N.A. when you applied for credit.
 
INTERROGATORY NO. 6.
 
If your response to the preceding Interrogatory No. 5 is other than an unqualified negative, then state with specificity any and all facts that support your response.
 
INTERROGATORY NO. 7.
 
Is it your contention that you did not use the credit you received from CAPITAL ONE BANK(USA), N.A. as set forth by the plaintiff in the plaintiff's complaint.
 
INTERROGATORY NO. 8.
 
If your response to the preceding Interrogatory No. 7 is other than an unqualified negative, then state with specificity any and all facts that support your response.
 
INTERROGATORY NO. 9.
 
Is it your contention that you were not obligated to the terms set forth in a written agreement with CAPITAL ONE BANK (USA), N.A when you used the credit provided to you by CAPITAL ONE BANK (USA), N.A..
 
INTERROGATORY NO. 10.
 
If your response to the preceding Interrogatory No. 9 is other than an unqualified negative, then state with specificity any and all facts that support your response.
 
 
INTERROGATORY NO. 11.
 
Is it your contention that you paid all that you owed on the account identified in the plaintiff's complaint as account number with last four digits XXXXXXX4444
 
 
INTERROGATORY NO. 12.
 
If your response to the preceding Interrogatory No. 11 is other than an unqualified negative, then state with specificity any and all facts that support your response.
 
INTERROGATORY NO. 13.
 
Is it your contention that you owe the plaintiff less than the outstanding amount set forth by the plaintiff in the plaintiff's complaint.
 
INTERROGATORY NO. 14.
 
If your response to the preceding Interrogatory No. 13 is other than an unqualified negative, then state with specificity any and all facts that support your response.
 
 
INTERROGATORY NO. 15.
 
Is it your contention that you did not receive billing statements from CAPITAL ONE BANK (USA), N.A. concerning the account identified in the plaintiff's complaint as account number with last four digits XXXXX4444.
 
 
  • Plaintiff's First set of request for inspection and production of documents CCP2031
 
 
REQUEST NO. 1
 
Any and all correspondence by and between you and CAPITAL ONE BANK (USA), N.A. with relation to the account at issue in the plaintiff's complaint.
 
REQUEST NO. 2
 
Any and all documents that evidence payments made by you with relation to the account at issue in the plaintiff's complaint.
 
REQUEST NO. 3
 
Any and all documents that evidence a written or oral contract with relation to the debt at issue in the plaintiff's complaint.
 
REQUEST NO. 4
 
Any and all correspondence by and between you and the assignees of CAPITAL ONE BANK (USA), N.A. listed in the plaintiff's complaint with relation to the account at issue in the plaintiff's complaint.
 
REQUEST NO. 5
 
Any and all documents that support your responses to the plaintiff's first set of special interrogatories.
 
 
 
  • Request for Admissions:
 
Attachment 1:
 
1. I applied for and received the credit stated in the plaintiff's complaint from CAPITAL ONE BANK (USA) N.A.
2. I used the credit stated in the plaintiff's complaint
3. I understood that by using the credit, I agreed to the terms and conditions set forth in a written agreement by and between myself and CAPITAL ONE BANK (USA), N.A..
4. The credit terms include a provision that the prevailing party in a dispute is entitled to attorney's fees.
5. The credit terms include a provision for calculating interest.
6. I received billing statements from CAPITAL ONE BANK (USA), N.A. for the account stated in the plaintiff's complaint having last four digits XXXXXX4444
7. The billing statement indicate the amount of interest being charged
8. I failed to make payments on the account stated in the plaintiff's complaint having last four digits XXXXXX4444 in the amount set forth in the plaintiff's complaint.
9. I have made payment toward the balance owed on the account stated in the plaintiff's complaint having last four digits XXXXXXX4444 within the four years prior to 10/02/2011
 
 
 
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General comment for now!

 

Research "elements of account stated" and you can see what the plaintiff is up to.  

 

These are all pretty standard and have been answered many times of the CIC forum. 

 

Deny to Rog's and use the have no information or knowledge to make an informed answer ettc

Deny the Admissions and do no admit anything. Search for some templates or examples

Deny all the POD's Production of Documents requests - Don't make their case for them.

 

California guys and others will chime in tomorrow to give you more specific suggestions. I'll try to dig up some templates for you tomorrow.

 

Best,

 

HP

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The essential elements of an account stated are: (1) previous transactions between the parties establishing the relationship of debtor and creditor; (2) an agreement between the parties, express or implied, on the amount due from the debtor to the creditor; (3) a promise by the debtor, express or implied, to pay the amount due." (Zinn v. Fred R. Bright Co. (1969) 271 Cal.App.2d 597, 600 [76 Cal.Rptr. 663], internal citations omitted.)

"The agreement of the parties necessary to establish an account stated need not be express and frequently is implied from the circumstances. In the usual situation, it comes about by the creditor rendering a statement of the account to the debtor. If the debtor fails to object to the statement within a reasonable time, the law implies his agreement that the account is correct as rendered." (Zinn, supra, 271 Cal.App.2d at p. 600, internal citations omitted.)

"An account stated is an agreement, based on the prior transactions between the parties, that the items of the account are true and that the balance struck is due and owing from one party to another. When the account is assented to, ' "it becomes a new contract. An action on it is ot founded upon the original items, but upon the balance agreed to by the parties. . . ." Inquiry may not be had into those matters at all. It is upon the new contract by and under which the parties have adjusted their differences and reached an agreement.' " (Gleason v. Klamer (1980) 103 Cal.App.3d 782, 786-787 [163 Cal.Rptr. 483], internal citations omitted.)

"To be an account stated, 'it must appear that at the time of the statement an indebtedness from one party to the other existed, that a balance was then struck and agreed to be the correct sum owing from the debtor to the creditor, and that the debtor expressly or impliedly promised to pay to the creditor the amount thus determined to be owing.' The agreement necessary to establish an account stated need not be express and is frequently implied from the circumstances. When a statement is rendered to a debtor and no reply is made in a reasonable time, the law implies an agreement that the account is correct as rendered. Actions on accounts stated frequently arise from a series of transactions which also constitute an open book account. However, an account stated may be found in a variety of commercial situations. The acknowledgement of a debt consisting of a single item may form the basis of a stated account. The key element in every context is agreement on the final balance due." (Maggio, Inc. v. Neal (1987) 196 Cal.App.3d 745, 752-753 [241 Cal.Rptr. 883], internal citations omitted.)

"An account stated need not be submitted by the creditor to the debtor. A statement expressing the debtor's assent and acknowledging the agreed amount of the debt to the creditor equally establishes an account stated." (Truestone, Inc. v. Simi West Industrial Park II (1984) 163 Cal.App.3d 715, 726 [209 Cal.Rptr. 757], internal citations omitted.)

" 'The common count is a general pleading which seeks recovery of money without specifying the nature of the claim . . . . Because of the uninformative character of the complaint, it has been held that the typical answer, a general denial, is sufficient to raise almost any kind of defense, including some which ordinarily require special pleading.' However, even where the plaintiff has pleaded in the form of a common count, the defendant must raise in the answer any new matter, that is, anything he or she relies on that is not put in issue by the plaintiff." (Title Ins. Co. v. State Bd. of Equalization (1992) 4 Cal.4th 715, 731 [14 Cal.Rptr.2d 822, 842 P.2d 121], internal citations and footnote omitted.)

"The account stated may be attacked only by proof of 'fraud, duress, mistake, or other grounds cognizable in equity for the avoidance of an instrument.' The defendant 'will not be heard to answer when action is brought upon the account stated that the claim or demand was unjust, or invalid.' " (Gleason, supra, 103 Cal.App.3d at p. 787, internal citations omitted.)

"An account stated need not cover all the dealings or claims between the parties. There may be a partial settlement and account stated as to some of the transactions." (Gleason, supra, 103 Cal.App.3d at p. 790, internal citation omitted.)

"In the common law action of general assumpsit, it is customary to plead an indebtedness using 'common counts.' In California, it has long been settled the allegation of claims using common counts is good against special or general demurrers. The only essential allegations of a common count are '(1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment.' " (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460 [61 Cal.Rptr.2d 707], internal citations omitted.)

"A common count is not a specific cause of action, . . . rather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness, including that arising from an alleged duty to make restitution under an assumpsit theory. When a common count is used as an alternative way of seeking the same recovery demanded in a specific cause of action, and is based on the same facts, the common count is demurrable if the cause of action is demurrable." (McBride v. Boughton (2004) 123 Cal.App.4th 379, 394 [20 Cal.Rptr.3d 115], internal citations omitted.)

Secondary Sources

4 Witkin, California Procedure (4th ed. 1997) Pleading, 515

1 Witkin, Summary of California Law (9th ed. 1987) Contracts, 917, 918

1 California Forms of Pleading and Practice, Ch. 8, Accounts Stated and Open Accounts, 8.10, 8.40-8.46 (Matthew Bender)

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303. Breach of Contract - Essential Factual Elements

To recover damages from [name of defendant] for breach of contract, [name of plaintiff] must prove all of the following:

1. That [name of plaintiff] and [name of defendant] entered into a contract;

2. That [name of plaintiff] did all, or substantially all, of the significant things that the contract required [him/her/it] to do [or that [he/she/it] was excused from doing those things];

[3. That all conditions required by the contract for [name of defendant]’s performance [had occurred/ [or] were excused];]

[4. That [name of defendant] failed to do something that the contract required [him/her/it] to do; and]

[or]

[4. That [name of defendant] did something that the contract prohibited [him/her/it] from doing; and]

5. That [name of plaintiff] was harmed by that failure.

 

Read this instruction in conjunction with CACI No. 300, Breach of Contract—Introduction.

Element 3 is needed if conditions for performance are at issue. For reasons that the occurrence of a condition may have been excused, see the Restatement Second of Contracts, section 225, Comment b. See also CACI No. 321, Existence of Condition Precedent Disputed, CACI No. 322, Occurrence of Agreed Condition Precedent, and CACI No. 323, Waiver of Condition Precedent.

Equitable remedies are also available for breach. “As a general proposition, ‘[t]he jury trial is a matter of right in a civil action at law, but not in equity. [Citations.]’ ” (C & K Engineering Contractors v. Amber Steel Co., Inc. (1978) 23 Cal.3d 1, 8 [151 Cal.Rptr. 323, 587 P.2d 1136]; Selby Constructors v. McCarthy (1979) 91 Cal.App.3d 517, 524 [154 Cal.Rptr. 164].) However, juries may render advisory verdicts on these issues. (Raedeke v. Gibraltar Savings & Loan Assn. (1974) 10 Cal.3d 665, 670—671 [111 Cal.Rptr. 693, 517 P.2d 1157].)

Sources and Authority
  • Civil Code section 1549 provides: “A contract is an agreement to do or not to do a certain thing.” Courts have defined the term as follows: “A contract is a voluntary and lawful agreement, by competent parties, for a good consideration, to do or not to do a specified thing.” (Robinson v. Magee (1858) 9 Cal. 81, 83.)
  • A complaint for breach of contract must include the following: (1) the existence of a contract, (2) plaintiff’s performance or excuse for non- performance, (3) defendant’s breach, and (4) damages to plaintiff therefrom. (Acoustics, Inc. v. Trepte Construction Co. (1971) 14 Cal.App.3d 887, 913 [92 Cal.Rptr. 723].) Additionally, if the defendant’s duty to perform under the contract is conditioned on the happening of some event, the plaintiff must prove that the event transpired. (Consolidated World Investments, Inc. v. Lido Preferred Ltd. (1992) 9 Cal.App.4th 373, 380 [11 Cal.Rptr.2d 524].)
  • “Implicit in the element of damage is that the defendant’s breach caused the plaintiff’s damage.” (Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1352 [90 Cal.Rptr.3d 589], original italics.)
  • “It is elementary a plaintiff suing for breach of contract must prove it has performed all conditions on its part or that it was excused from performance. Similarly, where defendant’s duty to perform under the contract is conditioned on the happening of some event, the plaintiff must prove the event transpired.” (Consolidated World Investments, Inc., supra, 9 Cal.App.4th at p. 380, internal citation omitted.)
  • “When a party’s failure to perform a contractual obligation constitutes a material breach of the contract, the other party may be discharged from its duty to perform under the contract. Normally the question of whether a breach of an obligation is a material breach, so as to excuse performance by the other party, is a question of fact. Whether a partial breach of a contract is material depends on ‘the importance or seriousness thereof and the probability of the injured party getting substantial performance.’ ‘A material breach of one aspect of a contract generally constitutes a material breach of the whole contract.’ ” (Brown v. Grimes (2011) 192 Cal.App.4th 265, 277—278 [120 Cal.Rptr.3d 893], internal citations omitted.)
  • “The wrongful, i.e., the unjustified or unexcused, failure to perform a contract is a breach. Where the nonperformance is legally justified, or excused, there may be a failure of consideration, but not a breach.” (1 Witkin, Summary of California Law (10th ed. 2005) Contracts, § 847, original italics, internal citations omitted.) “Ordinarily, a breach is the result of an intentional act, but negligent performance may also constitute a breach, giving rise to alternative contract and tort actions.” (Ibid., original italics.)
Secondary Sources

1 Witkin, Summary of California Law (10th ed. 2005) Contracts, § 847

13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.50 (Matthew Bender)

5 California Points and Authorities, Ch. 50, Contracts, § 50.10 et seq. (Matthew Bender)

2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 22, Suing or Defending Action for Breach of Contract, 22.03—22.50

 

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By now I think you probably understand how to answer their discovery to you (post if you have more questions). I wanted to suggest that you send discovery to THEM as well. Mainly; request for productions of documents.

 

One thing I noticed in your complaint from them. They claimed breach of WRITTEN contract. Normally they will just say breach of contract (which can allow them to prevail without a written contract) In your case however they claimed  a WRITTEN contract has been breached. In my opinion it will be harder for them to prove that (unless they happen to have it (which I doubt).

 

After you answer their discovery; I would send them your request for productions of documents (discovery), and ask specifically for the WRITTEN contract that is the basis of their complaint. I would ask for other things as well, but pin them down on the written part.

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Thank you all for the response! I really need help! :waah:

 

I have already sent them BOP and RFP, they responded both with same 2 years of billing statement (not all) with amount starting at 2400 and customer agreement (no written contract). I just received a CMC scheduled on March 13 so I'm thinking to put together responses for interrogatory as soon as possible. 

 

@racecar: I read the links you provided, they are really helpful for me to know what situation I got myself in. Thank you!

 

@ Huey Pilot: Thank you for the fast response, that gave me a general idea of what to respond to each request.

 

@Anon Amos: I read some post by you and trying to put together some responses that would fit my case. I feel less anxious when you mentioned WRITTEN contract because they did not attach any contract with signature on it like they claimed. 

 

 

Sorry if I sound stupid but my mind is unease and feel kind of lost. 

 

 

What should I respond to interrogatory such as this one?

 

INTERROGATORY NO. 3.

 

Is it your contention that you did not APPLY for credit with CAPITAL ONE BANK (USA), N.A. as set forth by the plaintiff in the plaintiff's complaint (for purposes of this interrogatory, APPLY means either sign an application, complete a phone application, or complete an online application).

 

INTERROGATORY NO. 4.

 

If your response to the preceding Interrogatory No. 3 is other than an unqualified negative, then state with specificity any and all facts that support your response.

 

Please help!!  :waah:
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Number 3:
OBJECTION Pursuant to Rule 36 (a) (1) which states in pertinent part: "Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying." No copies of any documents which would allow defendant to respond were attached. Defendant cannot speculate as to the contents of an application he / she does not have.

Not sure about number 4, but I would probably respond with the above answer as well. I think their "lack of documentation" would be the "support" for your response.
 

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