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Trial is Continued..Questions about Deadlines


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Hey All...

 

So I've been sued by a JDB and my original trial date was in late fall of 2012. I was unaware of this site so I did not have a strong urge to fight tho' I did answer the Complaint with denials and in retrospect an affirmative defense that is technically not "allowed".  I had no idea what credit card the JDB was referring to but suspected it might be one that was covered under a Bankruptcy that I filed a year ago. So my one affirmative response was that the card was covered under the Federal Bankruptcy. I realize now that is not an actual "affirmative defense" under the CA Civil Code.  right?

 

I really was sideswiped by a flurry of  life emergencies and never followed my answer with any BOP, or Discovery or anything. I wrote the Court a letter asking for a Continuance as well as sending a copy of that letter to the JDB. Amazingly the paralegal at the JDB's office was accommodating  and said they were fine with moving the Court date up. As it turns out the Court itself had Continued the case and set a Court Date for this summer already! Before I even had sent the letter to the Court asking for the Continuance!  Neither the JDB or myself were ever notified of this. So here we are with the new Court date in the summer.

 

Soooo...my question is..do the timelines of all the Motions etc.. apply as if the continued date is my intial date..or have I lost my ability to in essence fight my case because I've past the deadlines for the original Court date which was in the fall of 2012.  I have actually sent out a BOP (after reading this incredible wealth of info on this site)...and waiting for a response.

 

I have read the CA Civil Code of Civil Procedure and frankly I don't quite understand it..tho'  I'm not sure I know how to accurately interpret it anyway..Below is a portion that I was perusing..

 

2024.020. (a) Except as otherwise provided in this chapter, any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action. (B) Except as provided in Section 2024.050, a continuance or postponement of the trial date does not operate to reopen discovery proceedings. 2024.030. Any party shall be entitled as a matter of right to complete discovery proceedings pertaining to a witness identified under Chapter 18 (commencing with Section 2034.010) on or before the 15th day, and to have motions concerning that discovery heard on or before the 10th day, before the date initially set for the trial of the action.

 

If anyone has any answers I would be so so appreciative!!

 

 

 

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Thank you calawyer...Am I basically screwed?  Is there any motion I can bring to ask for Discovery or any other Motion?  I was thinking maybe since it was the Court that actually changed the date it may not be construed as a "continuance" ?

 

Thanks Again

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Thank you calawyer...Am I basically screwed?  Is there any motion I can bring to ask for Discovery or any other Motion?  I was thinking maybe since it was the Court that actually changed the date it may not be construed as a "continuance" ?

 

Thanks Again

 

 

First of all, you have a BOP outstanding.  See how plaintiff responds.  A BOP is technically not discovery.  Plus, plaintiff may not be sharp enough to see this issue at all.

 

You also may ask the court to reopen discovery.  The statute is 2024.050. Here is a link:

 

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=02001-03000&file=2024.010-2024.060

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Thanks again calawyer...You have a point about the plaintiff possibly missing this...one never knows!  I will wait to see what transpires regarding the BOP...

 

Also thanks so much for the link...I have questions about how to motion for reopening the discovery period but for now I'll hold off.  I will be back when I have more info regarding the BOP...I will need help I'm sure :)

 

Big Big Thanks!!!!

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jims86ixihb.....The JDB has shown no account numbers so I am not definitely sure that this is the card covered under the bankruptcy....My husband and I had a company that was covered under the bankruptcy as well as him personally...I did not file personally...this card (if it's the one the JDB  is referring to) may be the card that was initiated under the company with me listed as an employee/owner of company. There is another possibility and that could be a card where I was only an authorized user...(as it was my father's, and after 25 years of perfect payments he developed dementia and began charging with tele-marketers who were to say the least unsavory. I dealt with the the credit card company on that one tho' and they told me they  would close the account and not pursue anything more. That was 5 years ago. I had to become an authorized user to be able to deal with closing the account) But..it could also be another card as well.

 

Sorry...I'm sure that's more info than you cared to know..:))))

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  • 2 weeks later...

With no response to the BoP maybe a motion to preclude would be in order. as there is time before trial the authorities stating eve of trial motions being precluded do not apply here. We have a lovely motion to preclude on here and maybe you could file that and get the party started. I believe they are aware that this was a discharged debt you could file a motion in the bankruptcy court or the normal court if you get the specific account information.

 

That would be a nice counter claim to make them drop it. also if they are reporting on the CR then you might get some coin.

 

Just some avenues to trod upon to f their day up

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Seadragon, Thanks so much for the post....sorry for the delay in responding. I didn't get notified for some reason.

I love your idea about precluding....I think I found the motion you posted ...is it a motion to preclude/compel? the one I saw on this site was both....which I guess one has to do..preclude or compel.

The other interesting thing is I just received a response from the BOP I sent out in early Feb. Of course it's deficient...They sent 2 statements from my OC, a Bill of Sale and Assignment, and a statement of account. But.....I know which account it is now. It's not the one I thought . My husband and I had a business credit card, and we each had separate cards as employees of the business. This is one of the separate cards. I did not file BK...but my husband and the business did..This card was under the "business" umbrella, with my name. Tho' the statements they sent me does not show the business name....The original statements that I have do. Sooo..it's not clear cut.

Anyway...I'll begin with the motion.....if you read this...could you let me know if your motion you posted is the one you were referring to?

Thanks so much!!

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  • 4 weeks later...

I hope someone can help me on this one!! Boy am I feeling stupid these days...I was really feeling like I had a handle on this..Sent out BOP..got a response with junk, sent out 2 m&c's and am ready to file a motion hoping that the Judge will preclude. I have just realized something! I don't know if my "hearing" date is a Court Trial date or what. My original court hearing was for Oct. of 2012. The Court  without letting me  OR the JDB know , reset the date to this summer. I accidently saw this when I went online. So the online Court site is calling the summer date  OSC - 3.740 Collections-Default Judgement. Is this my trial date?  I was planning on sending out the CCP 96 which needs to be sent out at least 30 Court days from trial date. But I don't know if this is my trail date or something else!

 

Thanks for any info!

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  • 3 weeks later...

So I have a motion hearing scheduled apparently,  tho you couldn't tell from the Case Summary online or Court Calendar online!  I did everything right, filing at least 16 days plus 5 for mailing, including POS, and sent to JDB via Overnight Postal Express with a signature. Los Angeles is going thru this consolidation phase where cases are being re-routed to 2 other Courts. My first hearing for this suit was in May and is re-routed to another Court. That shows up in the case summary. My Motion hearing is held in the original filing Court and doesn't show up online, tho after many phone calls I'm told I am definitely scheduled for the Motion hearing.

 

It's been 9 days plus and I've not received an opposition to the Motion tho' on the 10th day I did receive 2 phone calls from the attorney but they left no message.  I'm sure the attorney is online searching for the hearing date and finding none. Do I have an obligation to inform them that the hearing is happening even tho it's not showing up online?

 

I will go down to the Court on Monday and see if they have filed anything.

 

Thanks for any info!!!!

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Your notice of motion should give the hearing date and time.

 

Also, if this really is an account that was discharged by the bankruptcy proceeding, I would contact the lawyer that handled that case.  They will have a letter that they have sent out hundreds of times saying that plaintiff has violated the stay issued by the backruptcy court, etc.  It is a pretty powerful letter and will make plaintiff back down.

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