HomelessInCalifornia

GOING TO TRIAL IN CALIFORNIA

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Oh and they dated their Request for Statement of Witnesses and Evidence on April 30, 2013, but the proof of service is for May 6, 2013.

 

I don't have to respond until May 26, right?

Yes but that day falls on a sunday and the following day is I believe a holiday so it if was me to play it safe I would send it either May 24 or 25. Maybe calawyer or others will chime in and state otherwise.

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Here’s the statute:

 

(a)Any party may serve on any other party a request in substantially the following form:

You are requested to serve on the undersigned, within 20 days, a statement of: the names and addresses of witnesses (OTHER THAN A PARTY WHO IS AN INDIVIDUAL) you intend to call at trial; a description of physical evidence you intend to offer; and a description and copies of documentary evidence you intend to offer or, if the documents are not available to you, a description of them. Witnesses and evidence that will be used only for impeachment need not be included. YOU WILL NOT BE PERMITTED TO CALL ANY WITNESS, OR INTRODUCE ANY EVIDENCE, NOT INCLUDED IN THE STATEMENT SERVED IN RESPONSE TO THIS REQUEST, EXCEPT AS OTHERWISE PROVIDED BY LAW.

 

(b)The request shall be served no more than 45 days or less than 30 days prior to the date first set for trial, unless otherwise ordered.

 

©A statement responding to the request shall be served within 20 days from the service of the request.

 

(d)No additional, amended or late statement is permitted except by written stipulation or unless ordered for good cause on noticed motion.

 

(e)No request or statement served under this section shall be filed, unless otherwise ordered.

 

(f)The clerk shall furnish forms for requests under this rule.

 

(g)The time for performing acts required under this section shall be computed as provided by law, including Section 1013.

 

Check the bolded text.  You really don’t need to respond because the witness you subpoenaed are for impeachment purposes and any evidence from them you might want to present would be to impeach their evidence.  I have been advised, however, to rattle their cages a bit, send a response stating something like this:  Defendant reserves to right to call any witnesses or offer any evidence into evidence for impeachment purposes.  At least that is my understanding.

 

rt

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I got a letter from opposition today. It is in response to my Demand for Bill of Particulars.

 

Plaintiff writes:

 

"I am writing in response to your demand for a Bill of Particulars. Your request is inapplicable to the causes of action pled in the subject complaint because Plaintiff is not pursuing items of an account is instead seeking a final sum owed as stated on the monthly bill your client received. (Distefano v. Hall (1963) 218 Cal.App. 2d 657, 677). As a result, please be advised that we will not provide a response."

 

On the face page, the Complaint is for 1) Breach of Contract and 2) Common Counts. In the body of the complaint, the First Cause of Action is called Breach of Contract and the second cause of action is called Account Stated.

 

I don't understanding Plaintiff's position or know how to respond.  Advice?

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I got a letter from opposition today. It is in response to my Demand for Bill of Particulars.

 

Plaintiff writes:

 

"I am writing in response to your demand for a Bill of Particulars. Your request is inapplicable to the causes of action pled in the subject complaint because Plaintiff is not pursuing items of an account is instead seeking a final sum owed as stated on the monthly bill your client received. (Distefano v. Hall (1963) 218 Cal.App. 2d 657, 677). As a result, please be advised that we will not provide a response."

 

On the face page, the Complaint is for 1) Breach of Contract and 2) Common Counts. In the body of the complaint, the First Cause of Action is called Breach of Contract and the second cause of action is called Account Stated.

 

I don't understanding Plaintiff's position or know how to respond.  Advice?

That's how they usually respond. Normally I would say send a meet and confer letter asking for a complete response in 10 days or you will file a motion to" preclude evidence or in alternative to compel a further response", or to send discovery (request for production of documents). But in your case you have the trial soon, so you really don't have time.

The subpoena you sent and the ccp 96 request is going to be the key to wining your case (as well as the MIL's), I believe their response to the ccp 96 is due on the 19th, so if you don't get anything by then, they won't be able to introduce any evidence at trial (pretty sure you already know that; as you seem to be doing a very good job)

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That's exactly how the jdb in our case responded and we mtc bop and won. Of course they defied the court order to provide so whatever they were suppose to provide was precluded at trial.

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I dug around and drafted a Meet and Confer letter which I will fax to opposition on May 18 (when their response to the Demand for BOP was due.)

 

The m&c reads as:

 

I am in receipt of your letter dated May 13, 2013 in which your offices refuse to provide a response to Demand for Bill of Particulars Propounded by Defendant ___________  to Plaintiff Cach, LLC (“Demand for Bill of Particulars”).

 

This letter is to inform you that you have failed to comply with Defendant’s Demand for Bill of Particulars in the above-entitled action within the ten (10) days as required by Code of Civil Procedure § 454. A copy of that demand, dated May 8, 2013, is enclosed.

 

If Defendant has not been served with a bill of particulars by May 23, 2013, Defendant will immediately file a motion for a court order precluding you from introducing any evidence of the account at the trial of the above-entitled action.

 

            I look forward to your cooperation in this matter.

 

Now, does anyone have a Motion for Order Precluding Evidence?

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I dug around and drafted a Meet and Confer letter which I will fax to opposition on May 18 (when their response to the Demand for BOP was due.)

 

The m&c reads as:

 

I am in receipt of your letter dated May 13, 2013 in which your offices refuse to provide a response to Demand for Bill of Particulars Propounded by Defendant ___________  to Plaintiff Cach, LLC (“Demand for Bill of Particulars”).

 

This letter is to inform you that you have failed to comply with Defendant’s Demand for Bill of Particulars in the above-entitled action within the ten (10) days as required by Code of Civil Procedure § 454. A copy of that demand, dated May 8, 2013, is enclosed.

 

If Defendant has not been served with a bill of particulars by May 23, 2013, Defendant will immediately file a motion for a court order precluding you from introducing any evidence of the account at the trial of the above-entitled action.

 

            I look forward to your cooperation in this matter.

 

Now, does anyone have a Motion for Order Precluding Evidence?

 
look all the way to the end for the order.

CloisterBlack-BT-Regular.zip

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look all the way to the end for the order.

 

My motion to compel BOP had the statement to preclude therefore the Judge added it to his Court Order, if you want a copy of this I will put it up on my thread.

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Yes, well, they might have said that in a response to you but they are completely full of FECAL MATTER!  The very case they cite is the one that reinforces the validity of the BOP. 

 

Here is a link to a meet and confer letter I used.  I pretty much got the same response you did and told them due to their non-compliance I was going to take the position at trial that they would not be able to introduce ANY evidence, just like the statute says.  I would edit my letter as needed and fax and mail it to them CMRRR and give them 10 days to respond.

 

I really don't think you have time to file a motion to preclude, you're going to have to deal with this at trial, if it gets that far.  Your motion to preclude would need to be part of your MIL, that is to say you also argue for the preclusion of the evidence based on the non-compliance to the BOP.  That's my understanding anyway.

 

Good luck

 

Rt

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Yes, please, Help me.  Thank you.

 

Rivertime's M&C letter is awesome.  I'm sending it out today.  Thank you.

 

I can't get Seadragon's Redacted Motion to Preclude to Download.  The file is corrupt.  :(

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Yes, please, Help me.  Thank you.

 

Rivertime's M&C letter is awesome.  I'm sending it out today.  Thank you.

 

I can't get Seadragon's Redacted Motion to Preclude to Download.  The file is corrupt.  :(

I just uploaded on my thread... :yahoo:

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Yes, please, Help me.  Thank you.

 

Rivertime's M&C letter is awesome.  I'm sending it out today.  Thank you.

 

I can't get Seadragon's Redacted Motion to Preclude to Download.  The file is corrupt.  :(

 

Thank you, but, I can't take credit for it.  It has Calawyer's fingerprints all over it... :razz:

 

rt

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A few questions:

 

1) I presume I have to file my Motion in Limine, Declaration in Support of Motion in Limine, and [Proposed] Order on Motion in Limine with the court and do it before trial.  Correct?

 

2) When I do file the Declaration, where I will have all the exhibits, do I have to have Exhibit Tabs with the nubs on them or is just a regular piece of paper with "Exhibit __" typed in the middle of it okay?  I'm trying to keep my costs down, so if I don't have to search for and buy exhibits tabs I won't.

 

3) Are the exhibits to be page numbered?  If so, are they numbered in continuation from the pleading?  Or does each Exhibit start at a page number of 1?  Do I need to precede each page number in the exhibits with a letter matching the Exhibit letter?

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A few questions:

 

1) I presume I have to file my Motion in Limine, Declaration in Support of Motion in Limine, and [Proposed] Order on Motion in Limine with the court and do it before trial.  Correct?

 

 

Correct. Check the court rules for the time frame. You will probably file a couple of days before trial.

 

 

 

2) When I do file the Declaration, where I will have all the exhibits, do I have to have Exhibit Tabs with the nubs on them or is just a regular piece of paper with "Exhibit __" typed in the middle of it okay?  I'm trying to keep my costs down, so if I don't have to search for and buy exhibits tabs I won't.

 

 

Your exhibits will not go in the declaration. They will be at the end of the motion papers, with a page in front of each exhibit, with the words EXHIBIT "A",  EXHIBIT "B"  etc. on the lower part of the page. They are supposed to have tabs on the sides of each exhibit to help mark them (but it is rarely done),  Do a internet search for CA Rules of Court (it's all in there) you can make these tables yourself to save $, or find some cheap at office depot.

The motion needs to be drafted on numbered pleading paper which you can download free by a Google search.

 

 

 

 

3) Are the exhibits to be page numbered?  If so, are they numbered in continuation from the pleading?  Or does each Exhibit start at a page number of 1?  Do I need to precede each page number in the exhibits with a letter matching the Exhibit letter?

For defendants the exhibits are lettered A, B, etc., toward the end of the motion. As you write info in the motion you say "see exhibit A" etc. Keep the motion short as possible. One number than a fact paragraph. Another number with a new fact paragraph, and so on. If it is not a new number and a new fact; it probably does not need to be there. There are some good samples on here.

 

Hang in there, and Good Luck

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1) I will be serving Defendant's Response to Request for Statement of Witnesses and Evidence on 05/25/13 (in response to Plaintiff's Request thereof served 05/06/13 along with a Notice to Attend Trial).

 

2) I served Defendant's Request for Statement of Witnesses and Evidence via U.S. Mail on 05/08/13.

 

3) I am expecting Plaintiff's Response to Request for Statement of Witnesses and Evidence by 05/28/13.

 

If I understand it right, if I do not receive Plaintiff's Response to Request for Statement of Witnesses and Evidence with a date on the POS of 06/02/13 or earlier (20 days to respond plus 5 for service by mail) then that is a violation of CCP 96.

 

If Plaintiff violates CCP 96 in this fashion, I understand that I can include that as an argument to preclude admission of evidence and witnesses. If that is so, I would like to have language thereto ready to drop into my Motion in Limine.

 

Does anyone have such language/argument on hand?

 

Thanks! :)

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You would just show that it was late and then cite to the code.  Doesn't get much better than this:

 

© A statement responding to the request shall be served within
20 days from the service of the request.
   (d) No additional, amended or late statement is permitted except
by written stipulation or unless ordered for good cause on noticed
motion.
 

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Yes, please, Help me.  Thank you.

 

Rivertime's M&C letter is awesome.  I'm sending it out today.  Thank you.

 

I can't get Seadragon's Redacted Motion to Preclude to Download.  The file is corrupt.  :(

Would you like me to send you mine which is a Seadragon special as well. I can send it to your regular email.

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Thanks, CaLawyer. 

 

What does "Other than a party who is an Individual" mean in CCP 96(a)? 

 "You are requested to serve on the undersigned, within 20 days, astatement of: the names and addresses of witnesses (OTHER THAN APARTY WHO IS AN INDIVIDUAL) you intend to call at trial."

What party called to testify is not going to be an individual?  I don't understand this.

 

Thanks, MuteDebt!  I had to download OpenOffice to do it, but with it I got SeaDragon's file to open.  Thanks for the offer though!  The support here is wonderful!  :)

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Thanks, CaLawyer. 

 

What does "Other than a party who is an Individual" mean in CCP 96(a)? 

 "You are requested to serve on the undersigned, within 20 days, astatement of: the names and addresses of witnesses (OTHER THAN APARTY WHO IS AN INDIVIDUAL) you intend to call at trial."

What party called to testify is not going to be an individual?  I don't understand this.

 

Thanks, MuteDebt!  I had to download OpenOffice to do it, but with it I got SeaDragon's file to open.  Thanks for the offer though!  The support here is wonderful!  :-)

 

 

A party who is an individual is someone like you (as opposed to a corporation).  A corporation, on the other hand, must testify through employees whose names and addresses you will not know unless they tell you.

 

New case just out today.  It is going to rock your world: http://www.courts.ca.gov/opinions/documents/JAD13-03.PDF

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