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Cali Portfolio - Need help on Response


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So BOP came back and they object stating its not subject on account stated. They quote some case law and that it is not nessary to prove the account or any of its items but the proof is directed that the parties have acounted and agreed.

 

Ok so they haven't addressed the part of BOP about the account being assigned to them.

How do I respond to this?

 

How do I direct the case out of the voluntary mediation? do I file something with the court?

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  • 2 weeks later...

Admit to nothing, and don't settle. The court will not set a date for trial until you attend a voluntary mediation session. (Doesn't sound like it is voluntary, eh?). Here is a site that tells you what to expect. They just try to get you to settle, they can't make you.

http://www.aldavlaw.com/files/6413/2458/9625/What_to_Expect_At_Your_Medication_MSC_FINAL.pdf

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  • 2 months later...

So I'm 67 days away from trial.

The only discovery I did was a BOP which was objected cuz its an account stated and I later read here that it doesn't apply.

I haven't done anything else with discovery because I figured I just do CCP 96 @ 45.

My thoughts are the dumber they think I am the less they will prepare.

Any thoughts?

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Don’t worry too much about not doing discovery.  But do make sure you serve the CCP 96 demand within the time specified in that section.  You will probably receive back a written response and also a CCP 98 declaration.  The Declaration is required to contain an address where the witness can be served.    Instead, you will probably be told that the witness can be served “in care of” the plaintiff’s law firm or some other business.

 

You will then want to have the court issue a subpoena and arrange for a process server to attempt service.  It is important that you tell the process server that you do not expect the witness to be present.  What you want is for them to attempt service 3 times and then leave it with whoever will accept it on the third attempt.  Then, the process server will give you a declaration of non-service or a declaration of diligence.

 

 

This declaration will help establish that the witness was not “present” at the address for service.  You may then file an objection to the declaration on the ground that the witness was not available for service as required by CCP 98.

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  • 1 month later...

So I sent my CCp 96 on -45 Certified Return Reciept. Never got the Receipt Back but Tracking Says it was delivered three days after sending. Do they have 20 days from the day sent or delivered to respond?

25 days (20 + 5 more because you served the request by mail) from the day it was sent. They just have to get it in the mail by that 25th day.

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Show up to trial anyway and make sure it gets dismissed. Don't trust them. If the lawyer says he will tell the judge to dismiss, stick around and make sure it gets done.

Otherwise they could call your case and the lawyer could say you aren't here and get a ruling against you.

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  • 2 weeks later...

So the court record shows the filing for dismisal and the trial date vacated. A few days after recieving the dismisal papers from Plantif I got my return recipt from my CCP96. I think they sat on thier mail and had no option but to file for a dismissal. Unfortunately it was without predjudice.

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So the court record shows the filing for dismisal and the trial date vacated. A few days after recieving the dismisal papers from Plantif I got my return recipt from my CCP96. I think they sat on thier mail and had no option but to file for a dismissal. Unfortunately it was without predjudice.

 

 

That is a win.  A big win.  These are professional litigants.  You figured out their game and beat them.

 

Now ask for your costs and make them really regret suing you.

 

Congrats!

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Congrats! Don't worry about w/prejudice vs w/out prejudice. Now that you've forced them to dismiss, it's not too likely they'll re-file. Even if they do, they won't have any better ammo the 2nd time around.

 

 

I just got me costs back from my case, let me know if you have any questions on that. You'll want to file & serve  a memorandum of costs within 15 days after the date of mailing of the notice of  dismissal by the clerk

 

 

1)Trial costs

A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of mailing of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first. The memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case.

http://www.courts.ca.gov/cms/rules/index.cfm?title=three&linkid=rule3_1700

 

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