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I am the defendant in a collection case. The first law firm filed and did not prevail in a Motion for Summary Judgment.

Brisbane, CA |

The successor law firm has now reserved a second Motion For Summary Judgment to be heard within a week of the mandatory settlement conference and within 40 days of the start of the jury trial on this $12,500 case. I will oppose this new motion for summary judgment as I opposed the first. Why would a collection agency spend this kind of money on a $12,500 case? Why would they pay a second law firm to file and argue a second MSJ? When is it procedurally correct to file my 9 motions in limine to prevent exhibits used during my recent deposition from being introduced to the jury at trial? Why are these defendants willing to try this case before a jury instead of offering a reasonable settlement?

Attorney Answers 3

Posted

One can only hazard a guess based upon your limited facts that the case involves an issue of importance to the plaintiff and is based upon a written contract which contains an attorney fee provision.

If so, you may find yourself with a judgment against you for substantially more than the $12,500 (and even in excess of $25,000) after interest and costs (including attorney’s fees) are added to the judgment. There is nothing wrong with the motions in limine. They appear procedurally correct in that they seek to exclude evidence at trial.

Why would the plaintiff "offer" a settlement? You are the one that owes the money. While the MSJ appears timely, you should carefully review the timeliness of it as the time requirements are jurisdictional. See, CCP 437c.

I do not see this turning out well for you, especially if the new MSJ cleans up the defects in the first motion. You may wish consult counsel and make a reasonable settlement offer now.

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Posted

The judge ruled from the bench. Your counsel Rob v. Woods carried the day. I suspect their next play to drive up costs of litigation will have them looking down the wrong end of an order to show cause hearing around section 128.7 if you take the trial jurist at their word.

Posted

Code of Civil Procedure section 1008 restricts a party's ability to bring a later motion seeking the same relief as an earlier one. The defendant has to show facts or law that were not reasonably available for the first motion.

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Posted

I assume they would take the position that facts gained in the deposition were not reasonably available to them for the first motion. A smart guy like might counter they should have taken my deposition before filing such an expensive and egregious waste of judicial resources. Am I reasonably correct? Is that what someone like yourself would say? Thank you for ccp 1008. I will b expert in it by the time I need to make oral arguments.

James Carl Eschen III

James Carl Eschen III

Posted

Generally, the defendant takes the plaintiff's deposition before filing a motion for summary judgment. I doubt that they could show that the information was not reasonably available to them. If you become an expert on section 1008, you can make a mint educating attorneys. It's a minefield.

Asker

Posted

Thank you for your generosity..

Michael Raymond Daymude

Michael Raymond Daymude

Posted

For what it may be worth: There is a special provision in 437(c), i.e., 437c(f)(2), which provides: “[A] party may not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court, unless that party establishes to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.” The provision does not prevent a second motion for summary judgment, so long as it is based upon issues not asserted in a prior motion or if it is based upon newly discovered facts, circumstances, or a change I the law. Your post is devoid of any facts which implicate 437c(f)(2) – except that a second MSJ has been filed. Since a court may reconsider a prior ruling on its own motion, if the motion was denied by the court without prejudice or for procedural reasons as opposed to on the merits, a second motion may be entirely proper. See, also Le Francois v. Goel at http://scholar.google.com/scholar_case?case=15192553142820635496&q=Le+Francois+v.+Goel+%28&hl=en&as_sdt=2,5

James Carl Eschen III

James Carl Eschen III

Posted

Section 437c(f)(2) discusses a motion for summary judgment based on the same grounds as an earlier motion for summary adjudication. Section 1008(b) only prohibits repetitive motion seeking the same relief, so it does not prohibit those motions. Section 437c(f)(2) thus fills a gap in section 1008. The poster discussed a second motion for summary judgment, which section 437c(f)(2) does not address but section 1008(b) does. Nonetheless, a court may decide to grant the second motion if it has merit, judging no harm, no foul.

Posted

In regard to the attorney fees, perhaps you have a provision in your written contract for the prevailing party to receive attorney fees and they believe that you have assets which will allow them to collect their attorney fees and costs. Your Motion in Limine will be exchanged prior to trial, and before the trial commences, the judge will hear your Motion in Limine. In regard to the drafting of your presentation of the Motion in Limine, you really should speak with legal counsel. Also, you should have someone check out whether the second Motion for Summary Judgment is simply a repeat of the first and if so, make appropriate objections.

I hope this is helpful.

John N. Kitta
Fremont

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Mr.Kurta like Mr. Eschen you are a decent and honorable man. By raise proper objections was that a nice way of saying pay Mr.Eschen to file n argue a 128.7 motion?