BeJebus

Quick question re: CA Motion (to Deem Matter Admitted) - time is a factor!

Recommended Posts

I received a request for documents from Unifund on 7-22-14

 

I responded by 8-22-14, on time

 

Unifund filed a Motion to Deem Matters Admitted (the court allows their claims to be admitted as settled fact) on the basis that I did not respond within 35 days, but they made a mistake and said they sent me the request for documents on 6-22-14 (instead of 7-22-14)

 

I want to just show up at the motion hearing and show the judge proof they're wrong and surprise them.

 

Can I do that or do I have to file an opposition to their motion with Los Angeles Superior Court ahead of time?

 

The hearing is in 3 weeks, so if I have to give them notice, I need to do it now.

 

Since they thought I was late, they also didn't respond to my BoP or my M&C, so I want to ask the judge to disallow into evidence what I requested in the BoP.

 

Thanks in advance for any thoughts.

Share this post


Link to post
Share on other sites

I received a request for documents from Unifund on 7-22-14 

 

I responded by 8-22-14, on time

 

Unifund filed a Motion to Deem Matters Admitted (the court allows their claims to be admitted as settled fact) on the basis that I did not respond within 35 days, but they made a mistake and said they sent me the request for documents on 6-22-14 (instead of 7-22-14)

 

 

check your documents again, did you receive them on 7/22? meaning that it was placed in your mailbox on 7/22? Time starts counting from the date the request was served. the POS attached to the request they sent you must have a date that the request was placed in the mail. that is the date in which you start counting 30days plus 5 days for mailing.

 

I want to just show up at the motion hearing and show the judge proof they're wrong and surprise them.

 

Can I do that or do I have to file an opposition to their motion with Los Angeles Superior Court ahead of time?

 

The hearing is in 3 weeks, so if I have to give them notice, I need to do it now.

 

 

you will have to file an opposition to their motion. opposition papers must be filed **edit* at least  9 COURT days before the hearing. if you believe that you sent your response within the 30+5 days time period, you will attach those documents as exhibits to your opposition papers, include the proof of service, and the return receipt which shows when the letter was mailed.

 

 

Since they thought I was late, they also didn't respond to my BoP or my M&C, so I want to ask the judge to disallow into evidence what I requested in the BoP.

 

Thanks in advance for any thoughts.

 

if you want that evidence to be thrown out due to lack of response, I think you will have to file your own hearing. which filing of the hearing should be within 45days from the day their response was served.

 

someone please correct me if im wrong on any of this info.

  • Like 1

Share this post


Link to post
Share on other sites

I would file your opposition with the court and get it on record ASAP. I don't think you will gain any points by surprising them in this situation.

  • Like 2

Share this post


Link to post
Share on other sites

thanks. i responded within 35 days. i'll file an opposition to their motion, then.

 

i served the bop back on 8-25-14. they never responded. can i still file a motion to exclude?

Share this post


Link to post
Share on other sites

Agreed, I don't think the element of surprise helps. It a simple matter of the dates in question.

 

And heads up - Court Days are not the same as Calender Days. So if your hearing is in 3 weeks and, as sadinca noted above, you need to have your opposition filed (and served?) 9 Court Days ahead, that 9-day deadline could be coming up real soon.

  • Like 2

Share this post


Link to post
Share on other sites

thanks. i responded within 35 days. i'll file an opposition to their motion, then.

 

i served the bop back on 8-25-14. they never responded. can i still file a motion to exclude?

 

did you send them a meet and confer letter following your BOP request?

Share this post


Link to post
Share on other sites

Agreed, I don't think the element of surprise helps. It a simple matter of the dates in question.

 

And heads up - Court Days are not the same as Calender Days. So if your hearing is in 3 weeks and, as sadinca noted above, you need to have your opposition filed (and served?) 9 Court Days ahead, that 9-day deadline could be coming up real soon.

yup. specially with the holidays coming up

 

you may only have a couple of days left.

Share this post


Link to post
Share on other sites

did you send them a meet and confer letter following your BOP request?

yes. they sent me a meet and confer at about the same time, and i called them to respond and also sent them a response letter, but they never responded back to anything.

i think they made a mistake on the date and figured since i was late, they could just file and win the motion to deem matters admitted.

 

i'm going to file my opposition tomorrow, so i'm ok there

Share this post


Link to post
Share on other sites

Focus on your opposition brief first.  Get out a calendar and figure out what the due date is.  You will not want to be late responding to a motion claiming that you served a discovery response too late.

 

I am a little concerned because you say:

 

"Unifund filed a Motion to Deem Matters Admitted (the court allows their claims to be admitted as settled fact) on the basis that I did not respond within 35 days, but they made a mistake and said they sent me the request for documents on 6-22-14 (instead of 7-22-14)"

 

A Motion to deem matters admitted refers to Requests for Admissions.  But then you go on to discuss when you received the Request for Production.  Those are two separate discovery requests?  Did you respond to Plaintiff's Request for Admissions???

  • Like 2

Share this post


Link to post
Share on other sites

if you served them a BOP and they did not reply, and if you then send a Meet and Confer letter following the BOP, and they still did not reply. @calwayer @Seadragon @Anon Amos may correct me if wrong, but I do not think then that there is a time limit, since no response from them was ever served.

Share this post


Link to post
Share on other sites

sorry for the confusion, calawyer:

 

7-21: they sent me a request for production of documents (pos dated 7-21)

8-25: i sent my response with a proof of service dated 8-25 (day 35) (i didn't have the docs they asked for, but i responded to each request)

9-2: they sent a m&c which stated they would give me 7 additional days because my responses were past due (i already responded)

9-6: they filed a motion to deem matters admitted (3 days into the 7 days "extra" they said they would give me) which claimed i had not responded in any manner, also claiming they served the original request for docs on 6-22, instead of 7-22 (i have the postmarked envelope dated 7-22) 

 

i can prove their dates are wrong and i responded on time initially

 

i also sent a bop on 8-25, and they never responded

Share this post


Link to post
Share on other sites

if you served them a BOP and they did not reply, and if you then send a Meet and Confer letter following the BOP, and they still did not reply. @calwayer @Seadragon @Anon Amos may correct me if wrong, but I do not think then that there is a time limit, since no response from them was ever served.

Correct. You can file a motion for a further BOP until about 30 days prior to trial. Technically you Don't have to meet and confer either, but it looks good to the judge when you do.

Share this post


Link to post
Share on other sites

sorry for the confusion, calawyer:

 

7-21: they sent me a request for production of documents (pos dated 7-21)

8-25: i sent my response with a proof of service dated 8-25 (day 35) (i didn't have the docs they asked for, but i responded to each request)

9-2: they sent a m&c which stated they would give me 7 additional days because my responses were past due (i already responded)

9-6: they filed a motion to deem matters admitted (3 days into the 7 days "extra" they said they would give me) which claimed i had not responded in any manner, also claiming they served the original request for docs on 6-22, instead of 7-22 (i have the postmarked envelope dated 7-22) 

 

i can prove their dates are wrong and i responded on time initially

 

i also sent a bop on 8-25, and they never responded

Yes, but did they send you "request for Admissions", and did you respond to each question with "deny, admit, or objection"?

Share this post


Link to post
Share on other sites

Yes, but did they send you "request for Admissions", and did you respond to each question with "deny, admit, or objection"?

oh, sorry! don't know what i was thinking there. yes, they sent the request for docs and admissions all at once, and i responded to each request, for both docs and admissions, one by one.

 

in their motion to deem matters admitted, they do not object to my responses, instead they claim i did not respond at all, in any way.

Share this post


Link to post
Share on other sites

If that's the case then their statement is a fraud upon the court, and an abuse of the discovery process.

I'm glad to hear you answered them. Did you send your response CMRRR?

Share this post


Link to post
Share on other sites

oh, sorry! don't know what i was thinking there. yes, they sent the request for docs and admissions all at once, and i responded to each request, for both docs and admissions, one by one.

 

in their motion to deem matters admitted, they do not object to my responses, instead they claim i did not respond at all, in any way.

 

 

OK.  Good (whew!).  I was worried for a minute.

 

What you want to do is figure out the last day to file an opposition to the motion to deem matters admitted.

 

Your opposition brief itself can be very simple.  The theme will be that plaintiff is hopelessly confused.  They can't even get straight the day they served the requests (see their own POS plus the postmark date on the envelope).

 

Tell the Court that you served a response to the Requests for Admission on ___ which was 35 days after service of the request.  Prepare a quick declaration attaching the response AND the proof of service.  Also attach plaintiff's POS on the discovery requests and the postmark on the envelope.  Check to make sure your proof says "defendant's response to Plaintiff's request for Admission".  Cite your declaration in your opposition brief.

 

Your opposition brief must be served by express mail.  With these guys, make sure you do a proof of service by express mail.

 

See if your County has a tentative ruling system.  If so, you can check 1 or 2 days before the hearing to see the Court's intended ruling.

 

That's about it.

  • Like 1

Share this post


Link to post
Share on other sites

Update: Had the motion hearing to deem matters admitted today. The judge will deny the plaintiff's motion as long as I send plaintiff the verification form for my responses within two weeks. ( hopefully I will use the correct form - haha)

 

It could have gone either way, but I got a sympathetic judge.

 

Apparently, according to statute, unverified answers to discovery are the same as no answers. But another section of the statute says that as long as the respondent provides a response before the actual hearing, even if untimely, the judge can't deem matters admitted.

 

The judge gave me a break and allowed me to correct my omission and verify my response.

 

So thank you all for your responses, which I deem admitted and verified!

  • Like 2

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.