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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


  1. 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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  2. 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.


  3. 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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