jene_rae

Cach, LLC v me BOP sent twice and denied

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Hi, I have requested a BOP from Cach, LLC once with my response and they stated BOP is not applicable so I sent a second request with note that defendant, myself, will move to court for an order requiring a further response or, in the alternative, an order precluding plaintiff from offering any such evidence at trial.  They responded:

In light of the foregoing, please be advised that we will not provide further responses to your request; however, Plaintiff will provide all available documentation in response to the discovery propounded pursuant to the Civil Discovery Act.

 

Three questions:

#1  Since the cause of action is "Breach of Contract" and "Account Stated" should I file for a MTC BOP?

 

#2  I received their Discovery executed on May 3rd 2013 but have not answered yet or sent my own Discovery to them.  What would you suggest my next move be?

 

#3  I was recently diagnosed with a very rare disease Idiopathic Intracranial Hypertension (pressure in brain with unknown cause or cure) causing me much pain, seizures and vision problems.  Might be needing a surgery and all of this is just to much to handle at once.  Do I have any rights to put this lawsuit on hold pending my health crisis?

 

Much help needed to keep the fight in me against CACH, LLC.  Thanks!

 

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Just learning myself, so I'll defer to the more experienced/knowledgeable folks here, but:

 

1) Yes.  You could try another M&C letter first, but you should MTC.

 

2) Answer discovery and be sure to do so within the time limit.  Good examples of responses when plaintiff refuses to provide BOP can be found elsewhere on this board.  I think 1111girl's thread has the original template.

 

3) Very sorry to hear that.  Just guessing, but you should be able to work out a stay with plaintiff; if they refuse, you should be able to get it from the judge and I'd be surprised if he/she isn't ticked that plaintiff refused.

 

Good luck!

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Three questions:

#1  Since the cause of action is "Breach of Contract" and "Account Stated" should I file for a MTC BOP?

 

​yep, most definitely.  BOP for breach of contract.  Some JDB's will say it only applys to open book, but there has been case law that states otherwise.  I wish I knew where it was, but since I am not in Cali, I can't direct you.  Calawyer or seadragon, anon Amos might be able to help out on that one.

 

#2  I received their Discovery executed on May 3rd 2013 but have not answered yet or sent my own Discovery to them.  What would you suggest my next move be?

 

Make sure you answer your discovery from them on time, there is alot of examples on how to answer here.  Don't send it back if you are not sure until you post it here, and we will all chime in.

 

#3  I was recently diagnosed with a very rare disease Idiopathic Intracranial Hypertension (pressure in brain with unknown cause or cure) causing me much pain, seizures and vision problems.  Might be needing a surgery and all of this is just to much to handle at once.  Do I have any rights to put this lawsuit on hold pending my health crisis?

I am so sorry for your health problems.  JDB will not care.  You can ask the court for a leave, I really don't have any idea if it would be granted since there is not a time when you could state you would be fit for trial.  You could ask the court if a Power of Attorney could do this for you if you were incapacitated at the time.  That way if you can't be there, they could.  Do you have someone like a spouse that could step in your shoes if you could not be there?  Again, calawyer may be able to weigh in on this.

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#2  I received their Discovery executed on May 3rd 2013 but have not answered yet or sent my own Discovery to them.  What would you suggest my next move be?

 

I would take care of this problem as priority. If they sent you request for admissions you could lose the case because they can get them deemed as admitted. I would answer now and send priority mail with CMRRR. Deny everything - produce nothing...

 

Sorry to hear about your health, this won't help it much (it may even be adding to it), so you might consider asking the court for a continuance. Buy yourself some time, get your health straight; then beat these bottom feeders.

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Hi, I have requested a BOP from Cach, LLC once with my response and they stated BOP is not applicable so I sent a second request with note that defendant, myself, will move to court for an order requiring a further response or, in the alternative, an order precluding plaintiff from offering any such evidence at trial.  They responded:

In light of the foregoing, please be advised that we will not provide further responses to your request; however, Plaintiff will provide all available documentation in response to the discovery propounded pursuant to the Civil Discovery Act.

 

Three questions:

#1  Since the cause of action is "Breach of Contract" and "Account Stated" should I file for a MTC BOP?

 

#2  I received their Discovery executed on May 3rd 2013 but have not answered yet or sent my own Discovery to them.  What would you suggest my next move be?

 

#3  I was recently diagnosed with a very rare disease Idiopathic Intracranial Hypertension (pressure in brain with unknown cause or cure) causing me much pain, seizures and vision problems.  Might be needing a surgery and all of this is just to much to handle at once.  Do I have any rights to put this lawsuit on hold pending my health crisis?

 

Much help needed to keep the fight in me against CACH, LLC.  Thanks!

I'd file the MTC and serve the discovery responses immediately. 

 

I'd also think about a statement therein regarding your medical condition and how it has made it difficult for you to give timely response to the plaintiff's discovery requests.

 

I just went to trial against CACH, LLC in California on a Breach of Contract/Account Stated case and won.

 

I hope you will avail yourself of the information on my thread at http://www.creditinfocenter.com/community/topic/320243-going-to-trial-in-california/.

 

I also hope that you will not hesitate to ask questions and feel free to private message me.  The people here are fantastic.

 

You definitely should get in touch with Calawyer and Seadragon and Rivertime if you can, to name just a few.

 

I am so sorry to hear about your poor health as well.  Obviously, getting better must be your priority.

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Thanks everyone for the advice and well wishes.  

 

I'm stuck on my response to two special interrogatories if anyone could please help:

No. 5, State each of your affirmative defenses.

No. 6, State all facts upon which you base your affirmative defenses.

-I filed a general denial to the Answer-Contract with no affirmative defenses listed.

 

Thanks! 

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No 5...plaintiff lacks standing.

No. 6....plaintiff has failed to attach proof they have standing on this issue to sue.

(Did they attach anything?)

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Does my responses to the RFP, RFA and Special Interrogatories need to be notarized?

Welcome,

No they don't need to be notorized but they do need to be verified and verification page is signed by you.

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Great thanks.  So can I simply put:

 

I declare under penalty of perjury under the laws of the State of California that the foregoing answers are true and correct?

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Great thanks.  So can I simply put:

 

I declare under penalty of perjury under the laws of the State of California that the foregoing answers are true and correct?

I, your name, am the Defendant in this case. (then add the above) and make sure you add a heading with VERIFICATION and also date and sign it.

Don't forget a POS.

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Everyone's help has been a blessing and I can't thank you enough.  I'm still fighting and need to know if anyone can supply me with a sample Notice of Motion and Motion to Compel Response to Discovery Bill of Particulars?

 

I called the court and reserved my date and have it set for August 1, 2013 but not sure how to word it.

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Everyone's help has been a blessing and I can't thank you enough.  I'm still fighting and need to know if anyone can supply me with a sample Notice of Motion and Motion to Compel Response to Discovery Bill of Particulars?

 

I called the court and reserved my date and have it set for August 1, 2013 but not sure how to word it.

I believe there is a sample in ASTMedics "how I beat Midland" and one from Calawyer on here someplace (it may have been in a thread from Helpme) If you don't find one let me know; I should be able to dig one up (remind me with a PM).

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he bill of particulars furnished by the plaintiff is treated as an “amplification” of the pleadings. As such, it has the effect of a pleading. Consequently, at trial, plaintiff is limited to the items and amounts specified in his or her bill of particulars. No additional items can be shown. See Baroni v. Musick

 

Even though the code authorizes a demand for a bill of particulars in an action “on an account,” it is not available in an action on an account stated. Distefano v. Hall, (1963) 218 Cal. App. 2d 657, 677.

 

Any action on it is therefore based on only the final balance agreed on by the parties and not on the original individual items of account. Hallford v. Baird, (1938) 27 Cal. App. 2d 384, 398. Therefore, itemization of the account is not possible.

 

If the information furnished is deemed too general or incomplete, the defendant may make a noticed motion for a further bill of particulars. Burton v. Santa Barbara Nat’l Bank (1966) 247 Cal.App. 2d 427, 433.

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Ok, sent 3rd meet and confer letter to Cach on 8/13.

 

-I'm calling the courts today to make a reservation for a notice of motion to compel

 

Here it is:

 

, IN PRO PER

 

 

 

 

SUPERIOR COURT OF CALIFORNIA

COUNTY OF 

 

 

 

 

CACH, LLC

          Plaintiff,

     vs.

,

          Defendant,Pro Se

)

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Case No.:

NOTICE OF MOTION AND MOTION: MEMORANDUM OF POINTS AND AUTHORITIES: DECLARATION OF _______ IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSE TO BILL OF PARTICULARS AND MONETARY SANCTION

 

Reservation Number:

DATE:
TIME:
DEPT:

 

 

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that on          a.m. in Department  
 of the above-entitled Court located at 222 E. Weber Avenue, Stockton, California, Defendant will move, and hereby does move, for an Order compelling Plaintiff to respond fully to Defendant’s Bill of Particulars or, in the alternative, to be precluded from offering any such evidence at the trial of this matter. The motion is made pursuant to Code of Civil Procedure section 454 on the ground that Plaintiff has refused to respond to Defendant’s demand for a Bill of Particulars and good cause exists for the relief requested in this motion.

This motion is based on this Notice of Motion, the Memorandum of Points and Authorities, the Declaration of ______ filed herewith, all of the papers and pleadings on file in this action and such other evidence and argument as shall be adduced at or before the hearing hereof.

DATED: August 20, 2013            Signature____________   _

                                           
 

 

, In Pro Per

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

On January 28, 2013, plaintiff filed a complaint in this matter. The complaint alleges that defendant owes plaintiff the sum of $9,349.51 pursuant to an agreement between defendant and CACH, LLC. No such agreement is attached to the complaint. The complaint sets forth no facts supporting the amount claimed to be owing.
For this reason, on April 17, 2013, defendant served Via Certified Mail RRR, a request for Bill of Particulars on plaintiff.

Plaintiff’s response was wholly inadequate. No contract has been produced. Nor has plaintiff produced all account statements justifying the amount claimed to be owed in the complaint.

Defendant therefore asks that this Court order plaintiff to supplement its Bill of Particulars producing a complete accounting, a copy of the contract referred to in the complaint and a copy of any agreement assigning this claim to plaintiff. In the alternative, defendant asks that the Court enter an order precluding plaintiff from offering any such evidence at the trial of this matter.

 

II. ARGUMENT

Code of Civil Procedure section 454 governs the use of a Bill of Particulars in California. Pursuant to this section, a plaintiff need not detail all items of an account in the complaint. However, upon request, plaintiff must provide all such information within 10 days or be precluded from giving evidence thereof at trial:

"It is not necessary for a party to set forth in a pleading the items of an account therein alleged, but he must deliver to the adverse party, within ten days after a demand thereof in writing, a copy of the account, or be precluded from giving evidence thereof. The court or judge thereof may order a further account when the one delivered is too general, or is defective in any particular."

Here, defendant served a request for a Bill of Particulars on April 17, 2013 pursuant to CCP 454. Declaration of  in Support of Motion for Further Bill Of Particulars paragraph 1.

Defendant asked for a bill of particulars setting forth the items and details of the account on which the cause of action for goods sold and delivered of plaintiff’s complaint is based, including the date of each item or transaction, a description of services, materials or goods supplied or other considerations rendered, the price or charge made for each such item or transaction; and all payments or credits that have been made to the account. A true copy of the mailing declaration and Demand of Particular is attached hereto as Exhibit "A."

Plaintiff’s response was wholly deficient. Plaintiff responded to Defendants demand for Bill of Particulars by contending that a Bill of Particulars is inapplicable to the causes of action pled in the subject complaint because Plaintiff is not pursuing items of an account and is instead seeking a final sum owed as stated on the monthly bill and advised that they will not provide a response.

A true copy plaintiff’s response is hereto attached as Exhibit "B." It did not provide contract, itemized details of the account on which the cause of action for goods sold and delivered including the date of each item or transaction, a description of services, materials or goods supplied or other considerations rendered; and the price or charge made for each such item or transaction.

Defendant’s good faith effort to meet and confer to avoid the necessity of bringing this motion were futile.

On May 17, 2013, Defendant sent to Plaintiffs attorney a second request for Bill of Particulars, Via Certified Mail RRR. A true copy of my May 17, 2013 letter is attached as Exhibit "C."

On May 21, 2013, Plaintiff responded to Defendants demand for Bill of Particulars by contending that a Bill of Particulars is inapplicable under California law for the account stated and breach of contract causes of action pled in the subject complaint. A true copy of plaintiff’s response is hereto attached as Exhibit "D".

The information requested in Defendant’s Bill of Particulars is the bare minimum that plaintiff will need to prove its case at trial. Plaintiff should have had this information in its possession before filing suit. There is simply no reason that it should not be produced in response to a properly served Request for Bill of Particulars. The Court should require plaintiff to do so immediately.

 

 

III CONCLUSION

Plaintiff’s response to defendant’s Bill of Particulars is inadequate. The Court should require plaintiff to supplement its response immediately and produce all statements pertaining to this account from inception showing all payments made and charges to the account at issue. In addition, plaintiff should produce the contract referred to in the complaint and any agreement assigning the claims at issue to the plaintiff. In the alternative, the Court should enter an order pursuant to Code of Civil Procedure section 454 precluding the plaintiff from offering any such evidence at trial.

DATED: August 20, 2013                Signature              

                                           
 

 

In Pro Per

DECLARATION OF _________ IN SUPPORT OF MOTION TO COMPEL
FURTHER RESPONSE TO BILL OF PARTICULARS

I,  declare as follows:

I am the defendant in the above-entitled proceeding. I have personal knowledge of all the facts contained herein, and if called to testify, could and would testify competently thereto.

1. Defendant served his Demand for Bill of Particulars Via Certified Mail RRR to Plaintiff’s attorney on April 17, 2013. A true copy of the mailing declaration and Demand of Particular is attached hereto as Exhibit "A."

2. On April 23, 2013, defendant received Plaintiff’s objection to Demand for Bill of Particulars, claiming that a Bill of Particulars is inapplicable to the causes of action pled in the subject complaint because Plaintiff is not pursuing items of an account and is instead seeking a final sum owed as stated on the monthly bill. (Distefano v. Hall (1963) 218 Cal. App. 2d 657, 677.)and advised that they will not provide a response. A true copy plaintiff’s response is hereto attached as Exhibit "B."

3. On May 17, 2012, Defendant sent a letter, Via Certified Mail RRR, to Plaintiff’s attorney at Law, observing that plaintiff’s response was incomplete and insufficient and requesting that Plaintiff provide a supplemental response. A true copy of my May 17, 2013 letter is attached as Exhibit "C."

4. On May 27, 2013, defendant received Plaintiff’s response to Bill of Particulars and no documents were produced. Plaintiff responded by letter claiming that a request for Bill of Particulars is inapplicable under California law for the account stated and breach of contract causes of action pled in the subject complaint and advised that they will not provide further responses to this request; however, Plaintiff will provide all available documentation in response to the discovery propounded pursuant to the Civil Discovery Act. A true copy of plaintiff’s response is hereto attached as Exhibit "D".

 

Executed this 30th day of July, 2013 at Tracy, California.

 

DATED: August 20, 2013

 

 

 

 

 

 

  In Pro Per

 

 

I'm still awaiting there third response and will add this as well.  But, any thoughts or corrections are very welcomed!

Thank you,

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It's definitely time to file the MTC or move on to discovery (RFPOD's), 3 M&C's letter is way too much (in my opinion) however; that should look good to a judge. Your motion looks good, but it needs some supporting case law (there is plenty of it here somewhere) if someone does not chime in with case law or point you in the right direction; let me know and I'll see what I have.

Make sure you give the bottom feeder at least 21 days notice of the motion hearing date (unless your rules state differently).

Also, I would call the motion "motion to preclude evidence at trial or in it's alternative to compel a further response to defendant's BOP"

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Hi Jen_Rae,

Here's my 2 cents: the first thing somewhere in your Intro you should state that you disagree with Plaintiff and BOP is appropriate for BOC. Second thing under Argumant add the folliwing as the 1st par

Plaintiff filed a complaint based on Breach of Contract and claimed the alleged damages in the amount of $ xxxx.xx were the result of a breach. Plaintiff has not submitted evidence to prove its case. Therefore, in an action based on a contract, Plaintiff must plead and prove the existence of the contract. (Walsh vs. West Valley Mission Cmty, Coll, Dist (1998)66 CA4th 1532, 1545, 78 Cr2d 725). In addition, Plaintiff must prove that Defendant caused Plaintiff's damages. (US Ecology, Inc. v State of California (2005) 129 CA4th 887, 891)

Hope this helps...

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A proposed order is what you want the Judge to grant you if you should win the motion. So if it is a contract you want from Cach, then state so and when you want them to reply. I asked for 10 days from the date of the motion. I also asked that if they didn't provide then any evidence be excluded from trial.

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Figured it out after quite a search:  

 

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN JOAQUIN, STOCKTON DIVISION

 

 

 

 

CACH, LLC

          Plaintiff,

     vs.

,

          Defendant,Pro Se

)

)

)

)

)

)

)

)

)

)

 

 

[PROPOSED] ORDER GRANTING DEFENDANT’S MOTION FOR COMPEL FURTHER RESPONSE TO BILL OF PARTICULARS AND MONETARY SANCTION

 

Hearing

DATE: 
TIME:
DEPT: 

 

 

[PROPOSED] ORDER

 

     AND NOW this  day of         , 2013, upon consideration of Defendants’ Motion to Compel Further Response to Bill of Particulars and Monetary Sanction, IT IS HEREBY ORDERED that defendants’ motion is GRANTED.  Within five (10) days of the entry of this Order, plaintiff shall:

1)  Provide a full and complete response to Defendants’ Bill of Particulars including original signed contract by Defendant.

 

Dated:                                                          

                                   Judge of the Superior Court

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I have my conference meeting Monday and I have filed the Motion to Compel but won't be heard before.  Anything I should do or say to the Judge as we move forward to set a Trial date?

 

Thanks!

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I have my conference meeting Monday and I have filed the Motion to Compel but won't be heard before.  Anything I should do or say to the Judge as we move forward to set a Trial date?

 

Thanks!

You won't have to say much; mostly just answer the judges questions. As far as setting a trial date; you are not ready, only because you are still trying to get plaintiff to compel and produce their evidence so that you can prepare for trial. You are still in the discovery stage and do not knowhow long it will take to get the plaintiff to comply.

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