easy619

Motion to Compel granted...this should be interesting

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If I were in you situation, first I would be really happy!  But then I would stay really focused with my Motion for Sanctions.

 

You have them on " not meeting the deadline of the Court Order" and " Not supplying a privilege log" (which is alot of work for them).

 

So don't veer off course and try to stretch or surmmize what they're intent or if they are attempting to object by claiming priviledge.

 

You have Civil Procedures that they didn't correctly meet, stay focused on those, as they are sure winners.

 

Finally, you are not interested in monetary sactions, you want ask for the following in this order-

 

1.  An order rendering a judgment by default against that party.

2.   An order dismissing the action, or any part of the action, of

that party.

3.  The court may impose an evidence sanction by an order

prohibiting any party engaging in the misuse of the discovery process

from introducing designated matters in evidence.

 

As you can see offering a cafeteria of choices for the Judge may allow you to dispose of the case entirely, but if not, wouldn't it be nice if all the evidence they could use against you is what has been produced to date...

 

Best of Luck.

 

 

Yeah, I should stick to capitalizing on their clean cut mistakes. I wonder if I should send another meet and confer giving them a chance to (not) send a privilege log in order to strengthen my case for a terminating sanction, or if i should even bother. I think the fact that they sent me the same docs again, late again, and only difference is they removed the objections from their answers sounds like a clear abuse of the discovery process. I like the idea of providing a list of options for the judge to choose from. I've been rounding up some sanction case law to through in my motion as well.

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The proof of service and postmark are both dated may 30th, the deadline was the 24th. They literally sent me all of the same documents, all they did was remove the objections from answers. Every one is answered as follows: "Attached here to are all non-privilged documents responsive to this request. Investigation and discovery are ongoing and plaintiff reserves right to supplement or amend this response."  They did respond, but late and with the same bs. I feel like this is a mockery of the discovery process.

 

I would write them a very quick letter.  THe Judge ordered them to respond without objection.  As the code specifies, this means any objection including one based upon the attorney-client privilege.  THeir response affirming only that non privileged documents are being produced, does not comply withthe Court's order.  Nor does the statement that discovery is ongoing and plaintiff may produce additional documents at a later time.

 

Please serve a verified supplemental response, within 5 days affirmning that plaintiff has conducted a diligent search and a reasonable inquiry and has produced all documents in its possession, custody and control.  If plaintiff does not do so, you will file a motion to compel compliance with the COurt's order and will ask for terminating and monetary sanctions.

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I would write them a very quick letter.  THe Judge ordered them to respond without objection.  As the code specifies, this means any objection including one based upon the attorney-client privilege.  THeir response affirming only that non privileged documents are being produced, does not comply withthe Court's order.  Nor does the statement that discovery is ongoing and plaintiff may produce additional documents at a later time.

 

Please serve a verified supplemental response, within 5 days affirmning that plaintiff has conducted a diligent search and a reasonable inquiry and has produced all documents in its possession, custody and control.  If plaintiff does not do so, you will file a motion to compel compliance with the COurt's order and will ask for terminating and monetary sanctions.

That's what I was thinking. Seems wise to send a letter to allow them to fail again while making myself look better. Thanks! I'll get that letter in the mail monday morning and continue drafting my motion.

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So, my motion to compel documents was granted. Midland didn't even send a lawyer, they no showed. I wore a suit, everyone thought I was an attorney until I stated my name and in pro per. The judge even commented that my motion was very well prepared. Now comes the interesting part. I was granted the motion because midland was late responding to my request for production of documents, and hence waived all of their rights to objection. They have to give me everything with no right to object. Now we'll see what they really have. I used ASTmedic's motion to compel as a starting point and tweaked it from there. Things are going alright for me so far, thanks to lots of help from ca lawyer, astmedic's thread and lots of other stuff on here. Next step is to beat these JDBs. I'd be happy to share my motion and separate statement with anyone going through the same business.

Please send it to me, I have begun responding to Midland. Thanks!

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Here's my letter:

 

 

I write concerning Midland Funding LLC's supplemental response to defendant's first request for production of documents. On May 3rd, 2013, the honorable Judge MY JUDGE entered a minute order granting defendant's motion to compel further documents. The order specified that plaintiff Midland Funding LLC was to respond without objection, including claim to privilege, pursuant to CCP 2031.300. Plaintiff's response affirming only that non privileged documents are being produced does not comply with the Court's order.  Nor does the statement that "discovery is ongoing and plaintiff may produce additional documents at a later time."
 
Please serve a verified supplemental response, within 5 days affirming that plaintiff has conducted a diligent search and a reasonable inquiry and has produced all documents in its possession, custody and control. Response is to contain no objections or claims to privilege.  If plaintiff does not do so, defendant will file a motion to compel compliance with the court's order and will ask for terminating and monetary sanctions. Have a nice day.
 
Sincerely,
Me
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A couple of nits:

 

I write concerning Midland Funding LLC's supplemental response to defendant's first request for production of documents. On May 3rd, 2013, the honorable Judge MY JUDGE entered an minute order granting defendant's motion to compel further documents. The order specified that plaintiff Midland Funding LLC was to respond without objection, including claim to privilege, pursuant to CCP 2031.300. Plaintiff's supplemental response affirming only that non privileged documents are being produced does not comply with the Court's order.  Nor does the statement that "discovery is ongoing and plaintiff may produce additional documents at a later time."
 
Please serve a verified supplemental response, within 5 days affirming that plaintiff has conducted a diligent search and a reasonable inquiry and has produced all documents in its possession, custody and control. Response is to contain no objections or claims to privilege.  If plaintiff does not do so, defendant will file a motion to compel compliance with the Court's order and will ask for terminating and monetary sanctions. Have a nice day.
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Compliance motions are tricky. There are a lot of rules especially when you ask for sanctions. You have to put all the information about the sanction in the notice of motion then in the memorandum. It did not look like your Notice of motion had this info. Here is the code:

 

2023.040. A request for a sanction shall, in the notice of motion,
identify every person, party, and attorney against whom the sanction
is sought, and specify the type of sanction sought. The notice of
motion shall be supported by a memorandum of points and authorities,
and accompanied by a declaration setting forth facts supporting the
amount of any monetary sanction sought.

 

Also, you asked for monetary sanctions in your conclusion but did not state what that monetary sanction is or for how much its for in your argument. 

 

Finally, you wrote 2023.30 instead of 2023.030. 

 

 

Here is case I sometimes use to justify terminating sanctions. Has to do with multiple offenses. It sounds like your offenses are multiple and pretty bad but you should check out the case to see if it applies to your situation. 

http://caselaw.findlaw.com/ca-court-of-appeal/1074118.html

 

Finally, did you do a separate statement. I did not see one. I generally file one with my compliance motions because I am asking specifically for discovery responses. The California Rule of Court, Rule 3.1345(a), which provides that a separate

statement is required for “[a]ny motion involving the content of a discovery request or the responses to such a request….”. But I have never gotten official word that a separate statement is actually required. It has now just become habit for me when I file for compliance on a Motion to Compel Further Responses (as opposed to a Motion to Compel Responses). I would be curious to know if a separate statement is required. Does anyone know? 

 

 

 

 

 

Good luck. 

 

 

I am not an attorney

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Compliance motions are tricky. There are a lot of rules especially when you ask for sanctions. You have to put all the information about the sanction in the notice of motion then in the memorandum. It did not look like your Notice of motion had this info. Here is the code:

 

2023.040. A request for a sanction shall, in the notice of motion,

identify every person, party, and attorney against whom the sanction

is sought, and specify the type of sanction sought. The notice of

motion shall be supported by a memorandum of points and authorities,

and accompanied by a declaration setting forth facts supporting the

amount of any monetary sanction sought.

 

Also, you asked for monetary sanctions in your conclusion but did not state what that monetary sanction is or for how much its for in your argument. 

 

Finally, you wrote 2023.30 instead of 2023.030. 

 

 

Here is case I sometimes use to justify terminating sanctions. Has to do with multiple offenses. It sounds like your offenses are multiple and pretty bad but you should check out the case to see if it applies to your situation. 

http://caselaw.findlaw.com/ca-court-of-appeal/1074118.html

 

Finally, did you do a separate statement. I did not see one. I generally file one with my compliance motions because I am asking specifically for discovery responses. The California Rule of Court, Rule 3.1345(a), which provides that a separate

statement is required for “[a]ny motion involving the content of a discovery request or the responses to such a request….”. But I have never gotten official word that a separate statement is actually required. It has now just become habit for me when I file for compliance on a Motion to Compel Further Responses (as opposed to a Motion to Compel Responses). I would be curious to know if a separate statement is required. Does anyone know? 

 

 

 

 

 

Good luck. 

 

 

I am not an attorney

 

Thanks for the advice. I wasn't sure if I needed a seperate statement or not. Might as well do one to be sure. I'll work on this today. I'm not really sure how to go about calculating monetary sanctions, I just wanted to add that in in case judge doesn't grant termination.

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Didn't plaintiff also fail to meet and confer with you about its violation of the Court-ordered responses?  If so, that is a violation of CCP 2023.10 (f).

I added another revision, highlighting this violation further. Thanks all for the help, Midland will be seeing this on their desk in a few days. I don't believe the judge will be very entertained.

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I added another revision, highlighting this violation further. Thanks all for the help, Midland will be seeing this on their desk in a few days. I don't believe the judge will be very entertained.

 

 

I think you are correct.  In your reply brief you might want to point out the inequity in having a professional litigant like Midland finding itself capable of filing a lawsuit but refusing to cooperate in discovery, attend hearings and comply with court orders---all against an unrepresented party.  It is hard enough for a pro per to figure out all of the applicable rules without the benefit of law school.  It is nearly impossible for you to figure out what to do when they don't follow the rules.

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I think you are correct.  In your reply brief you might want to point out the inequity in having a professional litigant like Midland finding itself capable of filing a lawsuit but refusing to cooperate in discovery, attend hearings and comply with court orders---all against an unrepresented party.  It is hard enough for a pro per to figure out all of the applicable rules without the benefit of law school.  It is nearly impossible for you to figure out what to do when they don't follow the rules.

 

I like that. I edited it in-

 

Plaintiff's latest responses can only be characterized as a willful, evasive abuse of discovery, causing Defendant to have to send multiple letters and file multiple motions to obtain the most very basic documents forming the foundation of Plaintiff's case. Defendant feel's plaintiff Midland Funding LLC, a professional litigant who has found itself capable of filing a lawsuit but refusing to cooperate in discovery, attend hearings and comply with court orders---all against an unrepresented party, is playing games and wasting both the defendant and the court's time and resources.

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I got a date for my motion hearing, didn't file it yet. Got a supplemental response from plaintiff in the mail today. Is this considered in time to abort my motion?

They answered pretty much each one as follows:

 

"Attached hereto as EXHIBITS 1 & 3 are all documents responsive to this request, within Plaintiff's custody and control. Investigation and discovery are ongoing and Plaintiff reserves the right to supplement or amend this response."

 

No new documents were produced, same copies of statements, random cardmember agreement, no contract, bill of sale with all pertinent info redacted, affidavit from chase officer in NY, database entries of my name and account.

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Hmmm.  THere may still be a way to push some buttons.  What was the doc request that sought the bill of sale?  Does the bill of sale refer to another agrement (the forward flow agreement)?  In other words, would the document request that the court compelled require production of the forward flow agreement?

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Hmmm.  THere may still be a way to push some buttons.  What was the doc request that sought the bill of sale?  Does the bill of sale refer to another agrement (the forward flow agreement)?  In other words, would the document request that the court compelled require production of the forward flow agreement?

IT was for "All documents constituting the assignment agreement" I'm not sure if it references another agreement, don't think so. I can upload a scan of all of their "Evidence"

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IT was for "All documents constituting the assignment agreement" I'm not sure if it references another agreement, don't think so. I can upload a scan of all of their "Evidence"

 

 

Upload the bill of sale and any other assignment agreement.

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