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Hi-

These forums have been extremely helpful as we've prepared defense paperwork on what appears to be junk debt buying by LVNV Funding represented by Nelson Kennard in Sacramento, CA.

 

We responded to their discovery req. for Adm, Prod of Docs and Form Interrog. with help from many on this forum. We've met for CM and Settlement Conf. and  trial date is set for 6/6/14. (At the CM and Settlement Conf., Nelson& Kennard sent a local atty who was not familiar with the case and appeared confused. He did agree to the trial date)

We sent our own Discovery request on 12/31/13 and Plaintiff has not responded at all. We have read a lot of conflicting information on Motion to Compel - should it be sent? We've read on the forum that it forces the Plaintiff to do their homework, and it may be better to sit back and respond to any of their filings. We want to make sure we follow through with best practice for a most positive outcome.

 

What is the next best step for us? More importantly, how do we correctly create and file a Motion to Compel Discovery and how do we create and file a "Motion to Deem admitted" our Req. for Admissions?

 

We've researched and can't seem to find a "template" to follow for these 2 items. We would appreciate any guidance.

 

On the forums, we've read that the date for the 45 day time period clock for filing a Motion to Compel starts with the date that the Responding party actually responds. We have not received any response, so are wondering if there is any due date for this since the time clock has not appeared to start.

 

Lastly, can we request sanctions? How much is reasonable and is this a separate motion as well?

 

Thanks!

 

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You can't file the MTC's until you send them a meet and confer letter asking them to comply with the discovery request or you will file  a MTC. Read the rules in the CCP starting around  # 2000 under the "civil discovery act" 

There should be an example of motions in ASTMedic's thread "how I beat midland". You need to learn your local rules about filing motions as well as learning how to draft them (look at some samples).

 

The 45 days does not pertain to not responding at all, as in your case, but only to insufficient responses. I would not bother with sanctions because the court will not award you any money, that is only for lawyers. 

 

You can motion for evidentiary sanctions however, that they be precluded from introducing evidence because they failed to produce in discovery. First you have to get through the discovery and see what you end up with, starting with the meet and confer leter.

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Here is ASTmedic's motion to compel:  https://docs.google.com/file/d/0B3pn_2wRVGfTNUdLa1lwdHV2QWc/edit?pli=1

 

Your motion will be much easier since you will simply say that you served the request and did not receive a response.  Then cite the appropriate CCP section which authorizes a motion to compel when a party fails to respond at all.  You will find a separate section for RFPs and RFAs.

 

Did you meet and confer with plaintiff (i.e. did you write plaintiff and say that you never received a response)?  If not, you must do so before filing any motion.

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Thank you very much for your input. I have prepared a Motion to Compel production and a motion to deem admitted.
I wish there was a way to upload them here for feedback and assistance to others. I spent a lot of time on the forums and researching google to create these docs. I also found that the saclaw.org website was really useful with step by step guide and template forms.

 

Is there anyway to upload these 2 docs? I also tried to copy and paste one of them into this thread, and can't do it.

 

I would love to share for both feedback and assistance. Could someone please advise? When I try to upload, the error message says I don't have authority to upload that type of doc.

 

Is there a way to link it somehow for anyone to view? I am clueless on this process. : )

 

Thank you again.

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Convert your documents to PDF or JPG (PDF is smaller) and eliminate personal information. At the bottom of the page next to post button is the more reply options button. Click on that and then click the button attach files. It will take you to your computer where you can upload the files.Once the files are uploaded click the button add reply.  That should post your reply and the files. 

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Thanks so much doublethefun9941! I will see if I can upload as pdf right now.

 

This is the site for saclaw that was so helpful for this CA paperwork: http://saclaw.org/Upload/files/step-by-step/sbs-compel-responses.pdf

 

I realize that I need to personalize and make 4 copies - one of which requires the cardboard Exhibit A and the others simply with the cover page "exhibit A".

 

In our county, we must file at least 16 days before the hearing date. We also have trial coming up on 6/6/14.

This is the motion to compel draft. Do I need to add proof of service page? Any feedback is welcome and appreciated.

 

Next email is Motion to deem admitted.

 

Appreciate all of you. : )

 

Motion to compel production draft 3.22.14.pdf

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Its not a bad format if you are unclear how to write a motion but there are some thing to be aware of with that example. First, there is a lot of reference to monetary sanctions. You are a pro per and can not ask for monetary sanctions for your time, only motion filing fees. Additionally, some judges like in my county get very annoyed if a pro per asks for monetary sanctions. You should do some more research and consider whether keeping  the monetary sanctions parts are appropriate. Second, in a motion to compel responses (as opposed to motion to compel further responses) do not require a meet and confer effort. However, many counties do require a meet and confer for any motion even if California law does not. You should read you county local rules to determine the requirements associated with filing a motion. Also, be aware that with Motions for Admissions the Plaintiff can serve their responses prior to the hearing date which basically makes the motion moot. Also make sure you file and serve your motion and reply motion within the time requirements of CCP 1005. Also make sure they file and serve their opposition within the CCp 1005 time requirements. If they do not you can challenge their opposition as untimely. 

 

You need to attach to the motion the discovery you sent to them, the proof of service for that discovery and it is good to also include the proof of service of the copy of the motion you sent them. There may be other things to attach to the motion based on your situation. 

 

 

On a side note, Nelson and Kennard almost always uses verified complaints which means the attorney is verifying the contents of the complaint. Verifed complaints can be very useful to you come trial as it could potentially give you the option to call the lawyer as a witness. Nelson and Kennard will not want to have to go to your county to testify as a witness if they planned to send a rent-a-lawyer to try the case. 

 

Good luck.

 

 

I am not an attorney 

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In our county, we must file at least 16 days before the hearing date.

 

It is actually 16 COURT days.  See CCP 1005.  If you serve the notice of motion and motion on plaintiff by mail, you need to add an extra 5 days.

 

Consider sending a meet and confer letter for the RFPs and RFAs.  Under the Code, if plaintiff does not serve a timely response, it waives all objections including objections based upon the attorney-client privilege.  See CCP section 2031.300 and 2033.280.  Plaintiff may just serve a response, without objections, thus avoiding a motion to compel.  If plaintiff ignores your letter, the Court will appreciate the fact that you tried to resolve the matter without filing the motion.

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You have a process server try to serve the witness at the address stated.  Tell the process server that the witness won't actually be there to accept.  What you want is a declaration of non-service or declaration of diligence saying they tried to serve and the witness was not present.

 

Read Target Bank v. Rocha.  That case says that the declaration should be excluded.

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Good afternoon.

We are sending the Motion to Compel and Motion to deem matters admitted allowing 16 + 5 days for potential hearing date.

For the Proof of Service - Is it okay to simply have one Proof of Service that states they are sending both motions and mail them in the same envelope? Or, do we need a Proof of Service for each motion?

 

Is it okay to use a 81/2 by 11 sheet with "Exhibit A" in the center to separate the Exhibit from the Motion?

 

Our trial date is 6/6/14. Mailing when we get back in town this week will set the hearing date of May 2, 2014 at the soonest. I was also reading in court rules that there is some paperwork to prepare prior to trial - something about a Trial Management Report and Brief?

 

Can anyone comment on this?

Thank you for all your help!

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