Legal Question in Credit and Debt Law in California
I am fighting a law suit from Midland Funding and they filed an At-Issue Memorandum for Trial Setting representing to the court that "all discovery has been completed." I filled a counter memo representing to the court that "discovery was not complete" and then served on the plaintiff my demand for documents. I got back a bunch of copied paperwork, alleged statements, etc. but no smoking gun to prove their case and responses to that effect of "Plaintiff has conducted a reasonable and diligent search of its records and does not have documents responsive to this request in its possession or control. Investigation and discovery are ongoing and plaintiff reserves the right to supplement or amend this response."
Here is my two part question: if they represented to the court that "all discovery has been completed" on their part then how can the tell me discovery is still ongoing? Could I file a motion to dismiss based on the fact the plaintiff has no proof or "lack of standing"?
1 Answer from Attorneys
Midland may well have thought discovery was complete at the time it filed its at-issue memo, since you served your inspection demands after they made that statement. Obviously, discovery was indeed "ongoing" at the time Midland wrote the second document. In any event, I cannot see where any change in position would have any impact on your litigation.
It is impossible to tell you if you have any reasonable chance of success on any sort of dispositive motion, without reviewing the pleadings and all the evidence. In any event, your motion would we one for "summary judgment," or "summary adjudication of issues," and not a "motion to dismiss."
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