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I just recently sent a last minute BOP (7/26/13 they received 7/30/13) and received a response of "Our Office received your Demand for Bill of Particulars dated July 26, 2013. Per CCP 2024.40(a), your request is untimely and therefore no response will be provided . Please note, Plaintiff did supply 117 pages of billing statements in response for your request for production of documents on November 30, 2012. " I am sending them a meet and confer notice stating "

On July 26th, 2013, Defendant served its request for a Bill of Particulars on Plaintiff. Pursuant to CCP section 454, Plaintiff has ten days to respond or it will "be precluded from giving evidence thereof.

" As described below, plaintiffs’ response is entirely deficient. Plaintiff has not provided an itemization of the account showing

all items and details of the account on which the cause of action for unjust enrichment by goods sold and delivered, money had and received, and /or money lent or paid of plaintiff’s complaint is based, including the date of each transaction, a description of the services, materials or goods supplied or other considerations rendered, the price or charge made for each item, and all payments or credits that have been made to the account including details of interest calculation or fees charged at issue in this litigation. Such basic information is required to prove plaintiff’s claim. Plaintiff should have such information readily at hand. If not, it is difficult to understand how plaintiff acquired a good faith basis to file the lawsuit.

Please serve a full response on or before August 9, 2013. If Plaintiff fails to do so, Defendant will move the Court for an order requiring a further response or, in the alternative, an order-precluding Plaintiff from offering any such evidence at trial."

 

Problem is that my trial date is August 12, 2013.

 

Background of my case is as follows:

1. Who is the named plaintiff in the suit?

Capital One Bank (USA), N.A.

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Michael Boulanger, ESQ  Law Offices of Patenaude & Felix, A.P.C.

3. How much are you being sued for? $2882.29


 

4. Cause of Action: Common Counts " because an account was stated in action between plantiff and defendant in which it was agreed that defendant was indebted to plaintiff."

"This cause of action is based upon account number XXX for the sum by which Defendant has been unjustly enriched by virtue of Defendant and/or accepting benefits bestowed. It is inequitable for defendant to retain said benefits without repaying Plaintiff the value thereof." 

5. How do you know you are being sued? (You were served, right?)
Serviced at my front door

6. How were you served? (Mail, In person, Notice on door)
In Person

7. Was the service legal as required by your state?

Yes

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

They may have sent notice however I was in the process of changing addresses and do not recall a letter, received summons at new address.

9. What state and county do you live in?

San Joaquin County, CA

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)
7/4/2011

11. What is the SOL on the debt?

4 years

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or
looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

 

Court date for 8/12/13 at Superior Court of CA, County of San Joaquin

 

I filed/sent an Answer, Request for production of documents (12 Items) which they sent Credit card statements back to Aug 2008 (it had a beg bal of $2,642.92 at that time) and a Customer Agreement Copyrighted 2010, Case Management Statement (12/3/12), Bill of Particulars (7/26/13), going to send Meet & Confer (8/5/2013), I have not a trial brief.

 

They Sent Summons 5/11/12, CMS, Production of Docs 11/30/12, Meet & Confer 7/30/13 (regarding BOP), Trial Notice 7/8/13. 

 

Need advice on Filing motion to Precluding Plaintiff from offering any such evidence at trial (not sure if filing it on 8/9/13 is ok), Also trial prep and defenses for account stated.

 

 

 

 

 

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I don't think you will have time to file a motion to preclude before trial.

 

Did you send a CCP 96 demand?

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I did not File a CCP 96 (20 days to respond), sounds like it might be to late for that as well.

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Also filed by Plaintiff:

 

 


  20 Memorandum of Costs (Summary) (Total costs 287.50) filed by Capital One Bank (USA), N.A. on 07/17/2013.
  21 Declaration - Other (of plaintiff in lieu of personal testimony at trial) filed by Capital One Bank (USA), N.A. on 07/17/2013.
  22 Proof of Service - MAILING filed by Capital One Bank (USA), N.A. on 07/17/2013.

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I really appreciate your help on this, been discouraged with goof on late BOP. The Declaration was Served via mail, proof of service is dated 7/8/13, post marked 7/9/13 mailed from San Diego, CA. They list the declarant as having a San Jose Address (within 150 miles), however it was executed in Chesterfield VA on 7/8/13. Not sure  about days (30 plus 5 for mail) it is either right on time or 1 day over. Declaration was served with Notice of trial, trial brief, memo of cost judgment by court.

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You should read Target v. Rocha.  Not sure how well the argument works when you don't serve the witness with a subpoena but you really have very little time before trial.

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