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The Judge's Tentative Ruling overruled my Defendant's Demurrer. My hearing is is one week; how should I prepare for next steps?

San Jose, CA |

Defendant - a financial institution - is being sued for fraud in the foreclosure process (I lost my home) . Judge overruled Defendant's Demurrer, and sustained the basis for my allegations on almost every item that I alleged - i.e. fraud, negligence, and declaratory relief.

My hearing is in one week. What should I expect at that hearing, from the Judge and/or Defendant? Are there any special thing (or things) that I should ask for, or prepare for, re: the upcoming hearing? Are there any procedural tricks that the Defendant could use to frustrate my requests for substantial discovery - or even to continue the case - as the financial institution's wrongdoings are recorded in their voice archives, and via paper trails that only they control, and have access to?

Attorney Answers 4


  1. Best answer

    Please accept that a lawsuit between you and a bank and their legal team is not a fair fight. You may win, but it will not be easy.

    At the hearing the court listens to the bank try to reverse the judges tentative ruling. The best thing you can say is (1) as little as possible, and 2) "I agree with the Court's tentative ruling". Study it - it is like the Court doing your legal research for you.

    Procedural tricks that the Defendant Bank can use: yes, and there are so many they would far surpass the limits of Avvo space. The will object to all questions and demands, force you into meet and confers, force you to make motions to compel, and the normal "stick" (versus carrot) that makes litigants behave, being force to pay your attorney fees, won't occur here since you have no attorney.

    See if perhaps you can have ab attorney you can call on a limited, versus ongoing basis, for the more complex aspects of your case.

    The above is general legal and business analysis. It is not "legal advice" but analysis, and different lawyers may analyse this matter differently, especially if there are additional facts not reflected in the question. I am not your attorney until retained by a written retainer agreement signed by both of us. I am only licensed in California. See also avvo.com terms and conditions item 9, incorporated as if it was reprinted here.


  2. Great for you. It is very unlikely the court will change the tentative ruling. Since the tentative is in your favor, the less you say at the hearing, the better. Remember that the ruling on the demurrer can only be based upon the allegations of the complaint, and has nothing to do with discovery. Therefore, your argument (if any) would be that the bank can conduct discovery to ascertain the facts, but that your complaint alleges sufficient facts to constitute each of your causes of action.

    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.


  3. Hire yourself a local attorney. The odds are stacked against you, and you are out of your element by the questions you are asking. They are good questions, but you have no chance of doing this on your own and being successful.


  4. Courts like to affirm their tentative rulings, especially on a demurrer, but sometimes they will change their mind. It appears in your case that the Court has already evaluated the allegations of the complaint and has determined that the factual allegations are sufficient to state claims against the defendant. The defendant should have already made all of its best arguments in the paperwork filed with the Court, which the Court has already considered and rejected. If the defendant raises anything new at the time of hearing that it did not previously raise in its papers, and the Court appears to be changing its tentative based on this "new" argument, you should inform the Court that this is the first time you're hearing the argument and request additional time to submit additional paperwork to respond. My colleagues are correct that that you should remind the Court that its tentative is correct, that the factual allegations are sufficient to state claims, and that your case should be allowed to proceed forward. But speak as little as you have to, so you don't argue yourself out of a favorable ruling.

    As far as discovery, unless the request seeks "privileged" information, most judges will allow a great deal of discovery and require the parties to fully comply with most discovery requests. The broad standard for discovery in CA is whether the request is reasonably calculated to lead to discovery of admissible evidence. If the defendant refuses to comply with your discovery requests, you'll have to meet and confer with the defendant to try to obtain the discovery before filing a motion. If that is not successful, you'll have to file a motion to compel with the Court and obtain an order requiring the defendant to comply. That motion has very specific procedural rules, such as a declaration showing that a sufficient meet/confer took place between the parties before filing a motion, a separate statement identifying the discovery request, the defendant's response, and an explanation showing why your discovery is proper, etc., so make sure you are able understand and follow the rules (or hire a lawyer to represent you).

    To echo one of my colleague's statements, the playing field is never equal when only one side has legal counsel. Judges are not supposed to give non-lawyer litigants any special treatment or legal advice. You should definitely consider hiring a foreclosure litigation lawyer to represent you.

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