sblanchette

Case Dismissed Using New Target Case Law!!!

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Great news, I was sued by Erica Brachfeld and finally got the case dismissed once they got a look at my MIL!!

 

Thanks Homeless--your Dec in Sup and the MIL were all I needed to send them running  xshakeitx 

 

Only lasting question is that the case was dismissed WITHOUT prejudice. Is there anything I can do to make it dismissed WITH prejudice?

 

Best of luck to all of you still fighting. Use Target v Rocha and you'll have more than a fighting chance.

 

Cheers!! 

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I had subpoenaed their witness, who was not--nor ever--there, so I filed a MIL with the court to have her testimony barred and her "evidence" tossed out with it. 

 

This was enough to get plaintiff, LVNV, to drop the case.  I am SO relieved, but now want to recover my costs and see what I can do to get a with prejudice judgement. 

 

Thanks a ton!! Everyone has been so supportive and wonderful :) 

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 I am SO relieved, but now want to recover my costs and see what I can do to get a with prejudice judgement. 

 

Thanks a ton!! Everyone has been so supportive and wonderful :-)

 

Hey, CONGRATS on the WIN!!!  Nothing like a JDB tucking tail and running.  WooWhoo!

 

Not to burst the bubble, but I went through the same thing.  IMO, there is zero chance of getting a WITH prejudice, unless you had some kind of counter-claim.  The JDB is free to dismiss at any time -- to scurry away for easier prey.  Just another reason why JDB should not be allowed to file suit when he or she knows there will be no PROOF if challenged.

 

In Arkansas, pro se litigants cannot recover costs.  But, if I'm not mistaken YOU CAN in California.  As kutuzov mentioned, 'calawyer' is the man who knows.

 

GREAT JOB!!  ::travolta::

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Nice! Big congrats to you sblanchette!

 

Sorry to say I think Jimmy E is right, very unlikely you can get it changed to WITH prejudice. Hopefully this case took you past SOL - or, if they didn't learn their lesson and try to sue you again, it's after SOL.

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I was 4 months away from SOL, but doesn't the clock stop once they file suit? Would they have to file a new case in order to come back after me? This would be very welcome news, and thank you!!

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Once they file the dismissal, it's as if the case never happened, so it's almost like the clock never stopped. If there were four months remaining when they filed, and then they file a dismissal five months later. The SOL would then be one month past the allowable time to file. Make sense?

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Absolutely. So can they now sell this account to another JDB? 

 

Thank you guys so much!! See Homeless thread for the exact motions that catalyzed the dismissal: Declaration in Support of the Motion in Limine, and the Motion in Limine itself. 

 

You guys are simply the best possible people!!!!!!!

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Yes ......... they can absolutely sell the alleged debt to another JDB.

But .......... if that hapless JDB tries to sue you on it .......... it's money in your pocket if it's past the SOL.

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If it's sold, then the new JDB can't refile under the same case #, right?

 

Lastly, can THIS plaintiff refile using the same case # whenever she feels the desire? Isn't that the reason for the dismissal without prejudice--so that they can come after you once they attempt to make a stronger case? 

 

Again, many thanks. They were quite impressed with the MIL . . . so if you're in my boat USE IT.

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If it's sold, then the new JDB can't refile under the same case #, right?

 

Correct ....... it would be a new case.

 

 

Lastly, can THIS plaintiff refile using the same case # whenever she feels the desire? Isn't that the reason for the dismissal without prejudice--so that they can come after you once they attempt to make a stronger case? 

 

They can refile ........ (new case number; the old one was dismissed, remember?)  but, if the cause of action is past the SOL, they lose.

 

Again, many thanks. They were quite impressed with the MIL . . . so if you're in my boat USE IT.

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When the case is filed the Statute of Limitations in California is tolled, however, if the Plaintiff voluntarily dismisses their case without prejudice, the clock snaps forward as if the suit was never in play.  This makes sense, if you think about it. Otherwise there would be little protection for defendants as plaintiffs could potentially sue and dismiss and sue and dismiss in an effort to extend the deadline for the SOL indefinitely.

 

Read: Martell v. Antelope Valley Hospital Medical Center (1998), 67 Cal. App. 4th 978 [79 Cal. Rptr. 2d 329] http://law.justia.co...4th/67/978.html

 

In this case, although about malpractice, the Plaintiff's sued and dismissed their case and then later decided to reinitiate another suit against the Defendant hospital.  The Appellate Court ruled that because they had dismissed their first case, the SOL clock had moved forward, placing them outside of the SOL and affirmed the lower courts decision to dismiss the case as time barred.  They stated:

 

Appellants' reliance on Bollinger v. National Fire Ins. Co. (1944) 25 Cal. 2d 399 [154 P.2d 399], for a somewhat different formulation of equitable tolling does not change the result. Bollinger's elements for equitable tolling required, among other things, "that the plaintiff [be] left without a [current] judicial forum for resolution of the claim [because of] forces outside the control of the plaintiff ...." (Hull v. Central Pathology Service Medical Clinic (1994) 28 Cal. App. 4th 1328, 1336 [34 Cal.Rptr.2d 175].) Here, appellants cannot satisfy that element because they voluntarily dismissed their first complaint. Accordingly, their predicament at being unable [67 Cal. App. 4th 986] to file another complaint is of their own making and not something caused by "forces outside [their] control." 

 

They willingly dismissed and are now subject to the ramifications of their own decisions.

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What a relief! It's well after six months past SOL at this point. 

 

So now I'm going to counter-sue in small claims for my costs. Yay for CA in this instance. It's well over $350 for filing and certified mail. Bummer for LVNV. 

 

My hope is that more people fight, because, with this new case law, you can win.

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I had subpoenaed their witness, who was not--nor ever--there, so I filed a MIL with the court to have her testimony barred and her "evidence" tossed out with it. 

 

This was enough to get plaintiff, LVNV, to drop the case.  I am SO relieved, but now want to recover my costs and see what I can do to get a with prejudice judgement. 

 

Thanks a ton!! Everyone has been so supportive and wonderful :-)

 

You can recover your costs because you are the prevailing party. Just file and serve the memo of costs that Seadragon linked for you.

 

You can't get the case dismissed without prejudice.

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Nice work - be sure to file the memorandum of costs and really make them pay!

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I've go them done and ready to go. It's almost funny because my court date was set for this Monday, when I will now be filing my MOC. 

 

I have to admit, I never thought I'd be happy to go to court! 

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