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Received Summons, Still lost after reading info on this site, Please Help.


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I received a summons last week and I need to respond, but after reading so much on this site, I still am confused and need some help, please.

 

 

I am being sued for $1600 from Attorney, Robert Scott Kennard, representing National Credit Adjusters, LLC collection agency, the papers were filed in San Bernardino County Civil Court, CA on 6/10/13 and were served to my daughter in law on 8/20/13.  I am disabled and my income is limited to SS benefits, so I cannot afford an attorney.

 

1)  The most important question I have is, am I responding to the 2 page "Complaint-Contract", or to the 1 page "Cause of Action-Common Counts"?  I believe I should be answering the Cause of Action because of the nature of the content, but the instructions on this site indicate to respond to the Complaint.

 

2)  Is there a legal form I need to use to file my response or do I just type it up on regular paper?

 

3)  I think the Statute of Limitations applies for me, but am not sure.  According to my credit report, the last payment for this creditor was 6/2009.  From 7/2009 on, my report shows 30, 60, 90 120, all the way to Charge Off.  From what I understand, the "open Book Account" rule (which the court papers say this is) for CA is 4 years, but is that from the last purchase or the last payment?  And if it's from the last payment of 6/2009 (actual date unknown) and the court papers were filed on 6/10/2013, how do I know if it's a few days shy, or a few day over the 4 year mark?

 

4)  If I do site the Statute of Limitations, do I still deny the said charges as unclear?  The papers say Sterling Jewelers, which I am assuming is Jared Jewelers, and to be honest, I have no idea what I owed them when I became disabled and had to stop paying because my income became very limited, but the amount owed to Jared on my credit report matches with the amount I am being sued for.

 

Please if anyone can help me, I would be eternally grateful.  I am very willing to provide any and all information needed for assistance.

 

Thank you!

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I received a summons last week and I need to respond, but after reading so much on this site, I still am confused and need some help, please.

 

 

I am being sued for $1600 from Attorney, Robert Scott Kennard, representing National Credit Adjusters, LLC collection agency, the papers were filed in San Bernardino County Civil Court, CA on 6/10/13 and were served to my daughter in law on 8/20/13.  I am disabled and my income is limited to SS benefits, so I cannot afford an attorney.

 

1)  The most important question I have is, am I responding to the 2 page "Complaint-Contract", or to the 1 page "Cause of Action-Common Counts"?  I believe I should be answering the Cause of Action because of the nature of the content, but the instructions on this site indicate to respond to the Complaint.

 

2)  Is there a legal form I need to use to file my response or do I just type it up on regular paper?

 

3)  I think the Statute of Limitations applies for me, but am not sure.  According to my credit report, the last payment for this creditor was 6/2009.  From 7/2009 on, my report shows 30, 60, 90 120, all the way to Charge Off.  From what I understand, the "open Book Account" rule (which the court papers say this is) for CA is 4 years, but is that from the last purchase or the last payment?  And if it's from the last payment of 6/2009 (actual date unknown) and the court papers were filed on 6/10/2013, how do I know if it's a few days shy, or a few day over the 4 year mark?

 

4)  If I do site the Statute of Limitations, do I still deny the said charges as unclear?  The papers say Sterling Jewelers, which I am assuming is Jared Jewelers, and to be honest, I have no idea what I owed them when I became disabled and had to stop paying because my income became very limited, but the amount owed to Jared on my credit report matches with the amount I am being sued for.

 

Please if anyone can help me, I would be eternally grateful.  I am very willing to provide any and all information needed for assistance.

 

Thank you!

You have 30 days from the day you received the complaint to answer it, so learn what you are doing before you answer. You are responding to the entire complaint. Make sure the complaint you received is not verified (most are not) It would need a separate page with the word "verification" on it saying the lawyer knows everything is true and has personal knowledge etc. to be verified.

So if it's not a verified complaint you can use the general denial form PLD-050 found here www.courtinfo.ca.gov Also check box # 2 on the form for affirmative defenses and type in "Plaintiff should be barred from the bringing of this action by the running of the Statute of Limitations"

You must file this form along with the "proof of service" form (there is one there with the same # PLD-050) WITH THE COURT and then send the lawyer a copy.

Instead of "assuming Sterling Jewelers is Jared Jewelers" I would assume it's not your account (if you do not recognize them as someone you have done business with). Don't assume anything; you have to do discovery to know anything for sure".

Also; just incase you do manage to lose the case; you are "judgment proof" as your SS disability benefits cannot be garnished.

Start by learning and answering the complaint. If you want to fight this there is plenty of help here. You have nothing to lose (being judgment proof).

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 PLD-C-010 Answer-Contract - California Courts use this one

POS-030 - California Courts - State of California certificate of service

http://webcache.googleusercontent.com/search?q=cache:NO-XfKQ7KR4J:www.saclaw.lib.ca.us/pages/responding-lawsuit.aspx+&cd=1&hl=en&ct=clnk&gl=us self help

FW-001 Request to Waive Court Fees - California Courts - State fee waiver

 

 

The complaint is verified*, but is being heard in the limited jurisdiction civil court, unless the case involves a claim for more than $1000 that has been assigned to a third party for collection.

*A complaint is considered verified if, in the complaint, the plaintiff swears under penalty of perjury that everything is true and correct.

If your case does not meet the guidelines for the mandatory Judicial Council form, you will instead use your Answer to admit or deny each allegation.

 

They cannot garnish your social security.

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Do I still use those forms when I do have a verification letter from the attorney attached to my summons? Anon Amos post has lead me to believe I do not use those forms because I HAVE THE VERIFICATION LETTER.

Also, I don't know if this makes a difference or not, but I already have a court date of 12/13/2013 and I did check the court calendar online and I am on calendar. It seems a lot of cases I've been reading on were not assigned a court date right away, but my summons came with a court date.

Thank you

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Thank you so much for your response. There IS a verification letter signed by the attorney, so now what do I do?

I've been researching online and re-reading my summons since I received it last week, and this is still all so very confusing to me.

Not a problem. Use form ( PLD-C-010 ANSWER-Contract) for your answer, and form POS-030 for your proof of service.

Now you have to answer every paragraph in the complaint with your answer form PLD--c-10. basically you just list DENY over and over to each allegation and paragraph (except your name and things like that).

There is an area for MORE defenses, make sure you list your SOL affirmative defense here.

Remember: you have time to learn how to answer (that's where you start) Read the Answer form and Complaint A LOT, and learn how to answer PROPERLY; but do not be late answering.

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Also, I don't know if this makes a difference or not, but I already have a court date of 12/13/2013 and I did check the court calendar online and I am on calendar. It seems a lot of cases I've been reading on were not assigned a court date right away, but my summons came with a court date.

Thank you

What type of court date is it? does it say TRIAL , or CMC, or Pre trial?

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Thank you Anon, I will start there and study, study, study. I'm sure I will be back with more questions, but thank you SO much for giving me a place to start.

You are welcome. Racecar will probably post 20 q's for you to fill out here in this thread that will help us help you. Mainly what was the cause of action or common count in the complaint? And an answer to post # 9.

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You are welcome. Racecar will probably post 20 q's for you to fill out here in this thread that will help us help you. Mainly what was the cause of action or common count in the complaint? And an answer to post # 9.

The "Cause of Action - Common Count" page says:

CC1. Plaintiff: National Credit Adusters, LLC alleges that defendant (and listed my name) became indebted to (they checked the Other box and wrote) predecessor in interest, Sterling Jewelers, Inc.

a. They checked off within the last four years, and they checked both 1) On an open book account for money due, and 2) because an account was stated in writing by and between plantiff and defendant in which it was agreed that defendant was indebted to plantiff.

b. They checked off within the last four years, and checked 3) for goods, wares, and merchandise sold and delivered to defendant and for which defendant promised to pay plantiff the sum of $1628.25

CC2. $1628.25 which is the reasonable value, is due and unpaid dispite plantiff's demand, plus prejudgement interest at the rate of 0.000 percent per year from 12/10/09 ( I have no idea why the chose that date, as I mentioned earlier, my last payment was 6/09, and obviously any charges would have been before then).

CC3. Was not checked

CC4. Other is checked snd they wrote "Note: For the purposes of CC1a and CC1b, the term plantiff refers to plantiff's predecessor in interest, Sterling Jewelers, Inc.

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The "Cause of Action - Common Count" page says:

CC1. Plaintiff: National Credit Adusters, LLC alleges that defendant (and listed my name) became indebted to (they checked the Other box and wrote) predecessor in interest, Sterling Jewelers, Inc.

a. They checked off within the last four years, and they checked both 1) On an open book account for money due, and 2) because an account was stated in writing by and between plantiff and defendant in which it was agreed that defendant was indebted to plantiff.

b. They checked off within the last four years, and checked 3) for goods, wares, and merchandise sold and delivered to defendant and for which defendant promised to pay plantiff the sum of $1628.25

CC2. $1628.25 which is the reasonable value, is due and unpaid dispite plantiff's demand, plus prejudgement interest at the rate of 0.000 percent per year from 12/10/09 ( I have no idea why the chose that date, as I mentioned earlier, my last payment was 6/09, and obviously any charges would have been before then).

CC3. Was not checked

CC4. Other is checked snd they wrote "Note: For the purposes of CC1a and CC1b, the term plantiff refers to plantiff's predecessor in interest, Sterling Jewelers, Inc.

OK got it. I have a few ideas (on how I would fight this at least) but I don't want to bombard you with too much info at once. You have time and you have already come a long way. And I know you are studying now.

As you learn more and are confident with your answer (the main thing for now) and become ready to take on more; you can look into BOP and DISCOVERY. I won't get into that right now.

Keep studying, keep posting, and we will keep an eye on you.

DON'T FORGET to assert the SOL defense and deny their allegations. The SOL is an affirmative defense. If you assert an affirmative defense and can't prove it; IT IS NO BIG DEAL. Do not let anyone convince you otherwise.

Good Luck...

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Did the law office send you a dunning letter telling you that you can dispute the validity of the debt within 30 days, and if not; then they would sue you?

Or did they just call you; and then filed the lawsuit?

Also; The "request to waive court fees" form is FW-001. You're going to need it.

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Did the law office send you a dunning letter telling you that you can dispute the validity of the debt within 30 days, and if not; then they would sue you?

Or did they just call you; and then filed the lawsuit?

If they did send me a letter, I never received it.  Because of financial issues, I have moved 4 times since 2009, all 4 times have been with relatives who still live in the homes I've stayed at, and no one has given me any letters from an attorney.  The summons came to my sons house, which I am living at now, so apparently they knew where I am.  Unless I know the number, I do not answer my phone (got really tired of collection calls), but no one has ever left me a message from the attorney office either.

 

I am going to start working on my response tomorrow, my physical pain level is pretty high right now and I just took my meds for the night.  I'm still a little confused.  Do I first respond to each item in the Complaint and then respond to each item in the Common Counts?

 

I am so thankful I stumbled across this site and even more thankful for the help.  I don't know why you guys are kind enough to give of your time and expertise, but I am forever grateful.  Kindness is so rare these days and it is very touching when someone who doesn't even know you gives of themselves for no other reason other than to help.

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1. Who is the named plaintiff in the suit?

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

3. How much are you being sued for?

4. Who is the original creditor? (if not the Plaintiff)

5. How do you know you are being sued? (You were served, right?)

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

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

Process Service Requirements by State - Summons Complaint

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

9. What state and county do you live in?

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

11. What is the SOL on the debt?

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

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming.

 

16.We need to know what the "charges" are. Please post what they are claiming.

Should see something like 

Common counts, account stated, breach of contract, open book, account, unjust enrichment.

 

17.Is the complaint "verified".? A verified complaint is one in which the last page it has a declaration from someone stating that the information and allegations are true and correct under penalty of perjury.

 

18.Did you receive discovery or interrogatory or Admissions (questionnaire) regarding the lawsuit?

 

19. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

 

 

 

 

 

 

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As far as answering the complaint goes:

Form PLD-c-010

On # 3 you check box B and then put the number of each paragraph (in the complaint) that is NOT true. sO IT WILL JUST BE A BUNCH OF #'S... 1,2,4,7,9,10 Etc.

On the answer form # 3 (2) ANY statement made in the complaint that you have no information about or do not believe is true; list the paragraph or sentence # (from the complaint here).. It will repeat of the first set of #'s you put in 3 B.

On # 4 check the box and list your affirmative defenses:

AFFRIRMATIVE DEFENSE #1: Plaintiff is barred from the bringing of this action by the running of the Statute of Limitations.

AFFIRMATIVE DEFENSE # 2: Defendant draws SSI disability as an only source of income and is judgment proof and exempt from collections.

On # 6 of the answer: DEFENDANT PRAYS : Check box B, check box C and then put "That plaintiff take nothing for cost of suit, lawyer fees, or any other form of compensation.

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Also, they have broken some FDCPA laws;

SECTION 809 For not sending you the dunning letter with the 30 days to dispute clause.

And FDCPA 809 B: " A communication in the form of a formal pleading in a civil action shall not be treated as an initial communication"

They were supposed to call you first, then send you the letter (within 5 days), not just file a lawsuit as the first form of communication.

Get done with the answer and then we can work on this. You can use this as a cross complaint, and they may actually have to pay you $ 1,000. You could also contact a consumer lawyer and he / she may take this case for nothing, and you could still get the $1,000.

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Info only

 

 

373. Common Count: Account Stated

 

[Name of plaintiff] claims that [name of defendant] owes [him/her/it] money on an account stated.

 

To establish this claim, [name of plaintiff] must prove all of the following:


1. That [name of defendant] owed [name of plaintiff] money from previous financial transactions;

2. That [name of plaintiff] and [name of defendant], by words or conduct, agreed that the amount stated in the account was the correct amount owed to [name of plaintiff];

3. That [name of defendant], by words or conduct, promised to pay the stated amount to [name of plaintiff];

4. That [name of defendant] has not paid [name of plaintiff] [any/all] of the amount owed under this account; and

5. The amount of money [name of defendant] owes [name of plaintiff].

 

 

 

 

New December 2005

Sources and Authority

  • “The essential elements of an account stated are:
  • (1) previous transactions between the parties establishing the relationship of debtor and creditor;

  • (2) an agreement between the parties, express or implied, on the amount due from the debtor to the creditor;

  • (3) a promise by the debtor, express or implied, to pay the amount due.” (Zinn v. Fred R. Bright Co. (1969) 271 Cal.App.2d 597, 600 [76 Cal.Rptr. 663], internal citations omitted.)

  •  

  • “The agreement of the parties necessary to establish an account stated need not be express and frequently is implied from the circumstances. In the usual situation, it comes about by the creditor rendering a statement of the account to the debtor. If the debtor fails to object to the statement within a reasonable time, the law implies his agreement that the account is correct as rendered.” (Zinn, supra, 271 Cal.App.2d at p. 600, internal citations omitted.)

  •  

  • “An account stated is an agreement, based on the prior transactions between the parties, that the items of the account are true and that the balance struck is due and owing from one party to another. When the account is assented to, ‘ “it becomes a new contract. An action on it is not founded upon the original items, but upon the balance agreed to by the parties.” Inquiry may not be had into those matters at all. It is upon the new contract by and under which the parties have adjusted their differences and reached an agreement.’ ” (Gleason v. Klamer (1980) 103 Cal.App.3d 782, 786–787 [163 Cal.Rptr. 483], internal citations omitted.)

  •  

  • “To be an account stated, ‘it must appear that at the time of the statement an indebtedness from one party to the other existed, that a balance was then struck and agreed to be the correct sum owing from the debtor to the creditor, and that the debtor expressly or impliedly promised to pay to the creditor the amount thus determined to be owing.’

  • The agreement necessary to establish an account stated need not be express and is frequently implied from the circumstances. When a statement is rendered to a debtor and no reply is made in a reasonable time, the law implies an agreement that the account is correct as rendered.

  • Actions on accounts stated frequently arise from a series of transactions which also constitute an open book account.

  • However, an account stated may be found in a variety of commercial situations. The acknowledgement of a debt consisting of a single item may form the basis of a stated account. The key element in every context is agreement on the final balance due.” (Maggio, Inc. v. Neal (1987) 196 Cal.App.3d 745, 752–753 [241 Cal.Rptr. 883], internal citations omitted.)

  •  

  • “An account stated need not be submitted by the creditor to the debtor. A statement expressing the debtor’s assent and acknowledging the agreed amount of the debt to the creditor equally establishes an account stated.” (Truestone, Inc. v. Simi West Industrial Park II (1984) 163 Cal.App.3d 715, 726 [209 Cal.Rptr. 757], internal citations omitted.)

  •  

  • The common count is a general pleading which seeks recovery of money without specifying the nature of the claim Because of the uninformative character of the complaint, it has been held that the typical answer, a general denial, is sufficient to raise almost any kind of defense, including some which ordinarily require special pleading.’

  •  

  • However, even where the plaintiff has pleaded in the form of a common count, the defendant must raise in the answer any new matter, that is, anything he or she relies on that is not put in issue by the plaintiff.” (Title Ins. Co. v. State Bd. of Equalization (1992) 4 Cal.4th 715, 731 [14 Cal.Rptr.2d 822, 842 P.2d 121], internal citations and footnote omitted.)

  •  

  • “The account stated may be attacked only by proof of ‘fraud, duress, mistake, or other grounds cognizable in equity for the avoidance of an instrument.’ The defendant ‘will not be heard to answer when action is brought upon the account stated that the claim or demand was unjust, or invalid.’ ” (Gleason, supra, 103 Cal.App.3d at p. 787, internal citations omitted.)

  •  

  • “An account stated need not cover all the dealings or claims between the parties. There may be a partial settlement and account stated as to some of the transactions.” (Gleason, supra, 103 Cal.App.3d at p. 790, internal citation omitted.)

  •  

  • “In the common law action of general assumpsit, it is customary to plead an indebtedness using ‘common counts.’ In California, it has long been settled the allegation of claims using common counts is good against special or general demurrers.

  • The only essential allegations of a common count are ‘

  • (1) the statement of indebtedness in a certain sum,

  • (2) the consideration, i.e., goods sold, work done, etc., and

  • (3) nonpayment. ”

  • (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460 [61 Cal.Rptr.2d 707], internal citations omitted.)

  •  

  • “A common count is not a specific cause of action, rather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness, including that arising from an alleged duty to make restitution under an assumpsit theory. When a common count is used as an alternative way of seeking the same recovery demanded in a specific cause of action, and is based on the same facts, the common count is demurrable if the cause of action is demurrable.” (McBride v. Boughton (2004) 123 Cal.App.4th 379, 394 [20 Cal.Rptr.3d 115], internal citations omitted.)

Secondary Sources

4 Witkin, California Procedure (4th ed. 1997) Pleading, § 515

1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §§ 972–973

1 California Forms of Pleading and Practice, Ch. 8, Accounts Stated and Open Accounts, §§ 8.10, 8.40–8.46 (Matthew Bender)

1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 9, Seeking or Opposing Quantum Meruit or Quantum Valebant Recovery in Contract Actions, 9.02, 9.15, 9.32

 


Sources and Authority For A book account

 

  • “ ‘A book account may be deemed to furnish the foundation for a suit in assumpsit only when it contains a statement of the debits and credits of the transactions involved completely enough to supply evidence from which it can be reasonably determined what amount is due to the claimant.’
  •  
  • ‘The term “account,” clearly requires the recording of sufficient information regarding the transaction involved in the suit, from which the debits and credits of the respective parties may be determined, so as to permit the striking of a balance to ascertain what sum, if any, is due to the claimant.’ ” (Robin v. Smith (1955) 132 Cal.App.2d 288, 291 [282 P.2d 135], internal citations omitted.)
  • “A book account is defined as ‘a detailed statement, kept in a book, in the nature of debit and credit, arising out of contract or some fiduciary relation.’ It is, of course, necessary for the book to show against whom the charges are made. It must also be made to appear in whose favor the charges run. This may be shown by the production of the book from the possession of the plaintiff and his identification of it as the book in which he kept the account between him and the debtor.

  • An open book account may consist of a single entry reflecting the establishment of an account between the parties, and may contain charges alone if there are no credits to enter. Money loaned is the proper subject of an open book account. Of course a mere private memorandum does not constitute a book account.” (Joslin v. Gertz (1957) 155 Cal.App.2d 62, 65–66 [317 P.2d 155], internal citations omitted.)

  • “A book account may furnish the basis for an action on a common count when it contains a statement of the debits and credits of the transactions involved completely enough to supply evidence from which it can be reasonably determined what amount is due to the claimant.” ’

  • A book account is described as ‘open’ when the debtor has made some payment on the account, leaving a balance due.” (Interstate Group Administrators, Inc. v. Cravens, Dargan & Co. (1985) 174 Cal.App.3d 700, 708 [220 Cal.Rptr. 250], internal citations and footnote omitted.)

  • “[T]he most important characteristic of a suit brought to recover a sum owing on a book account is that the amount owed is determined by computing all of the credits and debits entered in the book account.” (Interstate Group Administrators, Inc., supra, 174 Cal.App.3d at p. 708.)

  • “It is apparent that the mere entry of dates and payments of certain sums in the credit column of a ledger or cash book under the name of a particular individual, without further explanation regarding the transaction to which they apply, may not be deemed to constitute a ‘book account’ upon which an action in assumpsit may be founded.” (Tillson v. Peters (1940) 41 Cal.App.2d 671, 679 [107 P.2d 434].)

  • “The law does not prescribe any standard of bookkeeping practice which all must follow, regardless of the nature of the business of which the record is kept. We think it makes no difference whether the account is kept in one book or several so long as they are permanent records, and constitute a system of bookkeeping as distinguished from mere private memoranda.” (Egan v. Bishop (1935) 8 Cal.App.2d 119, 122 [47 P.2d 500].)

  • “ ‘The common count is a general pleading which seeks recovery of money without specifying the nature of the claim Because of the uninformative character of the complaint, it has been held that the typical answer, a general denial, is sufficient to raise almost any kind of defense, including some which ordinarily require special pleading.’ However, even where the plaintiff has pleaded in the form of a common count, the defendant must raise in the answer any new matter, that is, anything he or she relies on that is not put in issue by the plaintiff.” (Title Ins. Co. v. State Bd. of Equalization (1992) 4 Cal.4th 715, 731 [14 Cal.Rptr.2d 822, 842 P.2d 121], internal citations and footnote omitted.)

  • “Although such an action is one at law, it is governed by principles of equity. It may be brought ‘wherever one person has received money which belongs to another, and which “in equity and good conscience,” or in other words, in justice and right, should be returned The plaintiff’s right to recover is governed by principles of equity, although the action is one at law.’ ”
  • (Mains v. City Title Ins. Co. (1949) 34 Cal.2d 580, 586 [212 P.2d 873], internal citations omitted.)

  • ince the basic premise for pleading a common count is that the person is thereby ‘waiving the tort and suing in assumpsit,’ any tort damages are out. Likewise excluded are damages for a breach of an express contract. The relief is something in the nature of a constructive trust and ‘one cannot be held to be a constructive trustee of something he had not acquired.’ One must have acquired some money which in equity and good conscience belongs to the plaintiff or the defendant must be under a contract obligation with nothing remaining to be performed except the payment of a sum certain in money.” (Zumbrun v. University of Southern California (1972) 25 Cal.App.3d 1, 14–15 [101 Cal.Rptr. 499], internal citations omitted.)

  • “ ‘As Witkin states in his text, “[a] common count is proper whenever the plaintiff claims a sum of money due, either as an indebtedness in a sum certain, or for the reasonable value of services, goods, etc., furnished. It makes no difference in such a case that the proof shows the original transaction to be an express contract, a contract implied in fact, or a quasi-contract.” ’ A claim for money had and received can be based upon money paid by mistake, money paid pursuant to a void contract, or a performance by one party of an express contract.”
  • (Utility Audit Co., Inc. v. City of Los Angeles (2003) 112 Cal.App.4th 950, 958 [5 Cal.Rptr.3d 520], internal citations omitted.)

  • “In the common law action of general assumpsit, it is customary to plead an indebtedness using ‘common counts.’ In California, it has long been settled the allegation of claims using common counts is good against special or general demurrers.
  • The only essential allegations of a common count are
  • ‘(1) the statement of indebtedness in a certain sum,
  • (2) the consideration, i.e., goods sold, work done, etc., and
  • (3) nonpayment.
  • (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460 [61 Cal.Rptr.2d 707], internal citations omitted.)

  • “A common count is not a specific cause of action, rather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness, including that arising from an alleged duty to make restitution under an assumpsit theory. When a common count is used as an alternative way of seeking the same recovery demanded in a specific cause of action, and is based on the same facts, the common count is demurrable if the cause of action is demurrable.”

  • (McBride v. Boughton (2004) 123 Cal.App.4th 379, 394 [20 Cal.Rptr.3d 115], internal citations omitted.)


Secondary Sources

4 Witkin, California Procedure (4th ed. 1997) Pleading, § 522

1 California Forms of Pleading and Practice, Ch. 8, Accounts Stated and Open Accounts, §§ 8.20, 8.47 (Matthew Bender)

4 California Points and Authorities, Ch. 43, Common Counts and Bills of Particulars, § 43.28 (Matthew Bender)

1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 9, Seeking or Opposing Quantum Meruit or Quantum Valebant Recovery in Contract Actions, 9.02, 9.15, 9.32

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Correction, you are not judgement proof! Anyone can get a judgement against them. That means if you have anything of value they can get it. What you are is collection proof as far as SSI or any disability income is concerned. That, they can not touch.

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Correction, you are not judgement proof! Anyone can get a judgement against them. That means if you have anything of value they can get it. What you are is collection proof as far as SSI or any disability income is concerned. That, they can not touch.

Yes I suppose so (although the term "judgment proof" is widely used in California in this manner.). Technically it's not really an affirmative defense either; but it will send a good message to the plaintiff, and it is something she can prove.

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