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Defendant (financial institution) was overruled on its Demurrer to dismiss my foreclosure fraud case. What are my next steps?

San Jose, CA |
Filed under: Lawsuits and disputes

My case rests on proof that can be discovered from the financial institution's voice recordings; some of their documents, and possibly emails communicated during the time that I allege that fraud was committed.

Is my next step to ask for a motion to compel certain kinds of discovery.? Should I ask the Judge for permission to file a motion to compel, during my Demurrer hearing (in one week)? Are there limitations on how many questions I can compel in discovery?

Last, how long after the Demurrer hearing do I have to make my motion?

One slightly unrelated question: The judge has made a tentative ruling, but I have not been able to see it, because it is not in the online system. How important is it that I have a copy of her tentative ruling that overrules the Defendant's Demurrer?

Attorney Answers 3

Posted

No, your next step is to propound discovery, not to file a motion to compel. No, you should not ask the judge about filing a motion to compel during the demurrer hearing. A motion to compel is not necessary nor permitted until after you make your discovery requests and the defendant either fails or refuses to respond (or responses with meritless objections).

There are limitations on discovery, depending upon whether your case is a limited jurisdiction or unlimited jurisdiction case. The Code of Civil Procedure under the Civil Discovery Act (CCP sections 2016.010. - 2036.050) sets forth the rules. If your case is limited jurisdiction, see CCP sections 94 through 99.

It is extremely helpful to have a copy of the tentative. Call the clerk of the courtroom to obtain a copy of the tentative ruling. Some judges don't make it available at all. Some judges will provide a copy at counsel table on the date of the hearing. Some judges will even email the tentative ruling to the parties.

Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This Avvo.com posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.

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Posted

If the judge has already made the final ruling on the demurrer you don't need to see the tentative ruling.

Regarding the discovery, you simply serve the discovery that you need. You don't need a motion unless the defendant does not adequately respond to the discovery. Hope that helps.

THIS RESPONSE IS NOT LEGAL ADVICE. IT HAS BEEN PROVIDED FOR EDUCATION AND INFORMATION ONLY. Mr. Mann is licensed to practice in the State of California. There is no implied or actual attorney-client relationship arising from this educational exchange. Moreover, the facts provided by you were not sufficient to allow Mr. Mann to advise you specifically regarding what you should or should not do. You should speak with an attorney licensed in your state, to whom you have provided all the facts before you take steps that may impact your legal rights. Mr. Mann is under no obligation to answer subsequent emails or phone calls related to this matter, or to take any action whatsoever.

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Posted

While I agree with Frank Chen he is absolutely correct in regard to Superior Court action in California; nevertheless, if you are involved in a Federal Court action the Federal Rules of Civil Procedure are entirely different in regard to their approach in regard to discovery. If you are in Federal Court you will have to discuss these issues with an experienced Federal Court litigator.

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