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Help My Motion to Preclude is Friday


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HI Gang

Just want to hear everyone's opinion on the BOP being appropriate for Breach of Contract and Account Stated. Breach of Contract is appropriate for a BOP, correct?

 

I recieved their opposition that it is not appropriate to either!

 

They stated Bill of Particulars is Obsolete in the Modern Era!

 

I would like to hear any thoughts anybody has on this?

 

I got absolutely nothing from them with the BOP and then when I filed my motion to preclude I recieved about a years worth of Chase statements not WAMU which the case is based and Bill of Sale.

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It's no good for account stated. It is supposed to be valid for breach of contract,but we have seen several cases here where the judge does not allow it, and usually they  say to get the info thru discovery.

I do expect it to be denied, but I still want to have my ducks in a row. It will also cost them some money to send the rent a lawyer out. She had to come out to my CMC which lasted less than 2 minutes! Their profit margin has gotten smaller. :)

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You need to check, many counties use a "Tenative Ruling" system for law and motion hearings. This means they post a tenative ruling the day prior to the actual hearing date around noon or 1pm. If either side doesn't like the ruling they need to let the clerk and otherside know that oral arguments will take place.

If you don't do this you may show up and not be able to argue your motion. Then again if the judge rules in your favor, you may not want the otherside to call for arguments.

My main point is you need to check your local court to see and be sure....

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BOP is appropriate for Breach of Contract but if they won't answer it its generally a waste of time to fight them. You will get more out of them anyway with well worded request for Production of Documents and a MTC POD when they object.

 

I believe Seadragon has had some success with Motion to Preclude BOP. He posted his Motion to Preclude and a lot of great caselaw in one of my threads. Could be helpful if you have to argue your case in court if your county does not do tenative rulings. Starts at Post #18. Good luck

 

http://www.creditinfocenter.com/community/topic/316706-california-unlimited-jurisdiction-case-process-need-help/

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Your case is Destefano v. Hall.  Here is a link to the case:  http://law.justia.com/cases/california/calapp2d/218/657.html

 

Here is a nice quote:

 

The penalty for failure to furnish a bill of particulars, when one has been demanded, is that no evidence will be allowed in support of the cause of action pleaded. The requirement that a party produce a bill of particulars, however, applies only to an action upon "an account." (See 2 Witkin, Cal. Procedure, § 241, p. 1217.) Section 454 has received a fairly broad interpretation and has been construed to cover almost any kind of contract action for a money claim made up of more than one item.

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You need to check, many counties use a "Tenative Ruling" system for law and motion hearings. This means they post a tenative ruling the day prior to the actual hearing date around noon or 1pm. If either side doesn't like the ruling they need to let the clerk and otherside know that oral arguments will take place.

If you don't do this you may show up and not be able to argue your motion. Then again if the judge rules in your favor, you may not want the otherside to call for arguments.

My main point is you need to check your local court to see and be sure....

Hey Skippy yes my court does they post them after 3pm the day before. Although I don't think this judge like to do that. My other judge did and always posted them and I still showed up.

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Your case is Destefano v. Hall.  Here is a link to the case:  http://law.justia.com/cases/california/calapp2d/218/657.html

 

Here is a nice quote:

 

The penalty for failure to furnish a bill of particulars, when one has been demanded, is that no evidence will be allowed in support of the cause of action pleaded. The requirement that a party produce a bill of particulars, however, applies only to an action upon "an account." (See 2 Witkin, Cal. Procedure, § 241, p. 1217.) Section 454 has received a fairly broad interpretation and has been construed to cover almost any kind of contract action for a money claim made up of more than one item.

I'm going to memorize this for court. I saw you post it on another thread and searched it and copy and pasted it into my notes but thanks again. Everybody should know this as they use this on their boiler plate response to not sending a BOP. Funny enough they are siting something that can be used against them! Seems strange,but do they rely on folks like myself not reading the cases sited?

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BOP is appropriate for Breach of Contract but if they won't answer it its generally a waste of time to fight them. You will get more out of them anyway with well worded request for Production of Documents and a MTC POD when they object.

 

I believe Seadragon has had some success with Motion to Preclude BOP. He posted his Motion to Preclude and a lot of great caselaw in one of my threads. Could be helpful if you have to argue your case in court if your county does not do tenative rulings. Starts at Post #18. Good luck

 

http://www.creditinfocenter.com/community/topic/316706-california-unlimited-jurisdiction-case-process-need-help/

Seadragon is my gaurdian angel, when I win the lottery I'm sending him off to law school!

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