California Supreme Court: BILL OF PARTICULARS.

[ADSOFT]

I'm starting on my bill of particulars motion, I found something online, but the questions are not for a credit card account. What questions should I ask. I also want to throw in there what the JDB paid for the account.

Here is what I have so far,

btw, Jewel sent me her/his BOP but I haven't down loaded yet till I get to my office, since I'm on a 5gig/mo line at the moment.

Defendent

Street

Town, CA, 9XXXX

Tel: 714-xxx-xxxx

Defendent in Pro Per

Superior Court of the State of Californnia

For the County of ________

Plantiff(), ) Case No: xxxxxx

)

Plantiff ) Demand For Bill of Particulars

) Propounded by Defendent

vs. ) __________ to Plantiff _______ )

)

Defendent, and Does 1-xxx )

________________________________)

To Plantiff, _________ AND THEIR ATTORNEY OF RECORD:

Demand is Hereby made upon you pursuant to Code of Civil Procedure $ 454

to furnish to defendent ____________, within ten days hereafter, a Bill

Of Particulars setting forth the items and details of the account on

which the cause of action of plantiff's complaint is based, including:

1) Date of each item or Transaction

2) An agreement of said account

3) Proof that the plaintiff owns such account,

Date _____ ____________________________

Any Defendent.

Edited May 3, 2010 by ADSOFT

[ADSOFT]

Here is some other stuff I found on bill of particulars:

Advantages:

The bill of particulars has some distinct advantages over Discovery Act procedures:

Inexpensive:

It is far easier and less costly to send out a simple demand for bill of particulars than it is to draft interrogatories or to prepare for and take depositions.

Conclusive:

Answers to interrogatories or deposition questions can be used as evidence against the answering party at trial; but they are not conclusive (contradictory evidence is also admissible). On the other hand, a bill of particulars is conclusive as to the items and amounts claimed; i.e., no other evidence is admissible at trial, unless the court grants leave to amend the bill of particulars .

Does not count against “Rule of 35″:

Since it is not an interrogatory, the demand does not count against the numerical limits on specially prepared interrogatories under the Discovery Act. Thus it is particularly useful in limited civil litigation where parties are strictly limited to 35 discovery requests pursuant to Code of Civil Procedure § 94.

[ADSOFT]

Here is more interesting stuff:

Bill of particulars in California civil litigation

In California civil litigation, California freelance paralegal on September 18, 2009 at 5:26 PM

A plaintiff who sues on an account is not required to set forth in the complaint the items of account. See Code of Civil Procedure § 454. Therefore, it is not appropriate for the defendant to demur to the complaint on the ground of uncertainty. However, on written demand by the defendant, the plaintiff is required to furnish a copy of the account on which the complaint is based or be precluded from giving evidence thereof. See Code of Civil Procedure § 454. This procedure, known as a bill of particulars, thus forces the plaintiff to itemize the total sum upon which the complaint is based.

Demand for a bill of particulars appears to be a little used procedure today. Yet it remains a viable tool for the defendant in an action on an account. Kaneko Ford Design v. Citipark, Inc., (1988) 202 Cal. App. 3d 1220, 1225, (reciting fact that demand was made and complied with.

Perhaps a reason for its declining use is that attorneys simply fail to recognize that, in the appropriate action, a demand for a bill of particulars can be very useful in forcing plaintiff to provide all of the documentation supporting their claim This is particularly true when plaintiff is an assignee of a finance or credit card company and thus may not have all of the documentation. I have personally seen at least two instances where creditors dismissed cases when they could not respond to the bill of particulars.

The demand for a bill of particulars must be in writing, and the bill of particulars must be delivered to the requesting party within 10 days. And if the original complaint or cross-complaint was verified the bill of particulars must also be verified.

If, after furnishing the itemization, plaintiff finds that it was incomplete or incorrect, plaintiff must seek leave of court (by noticed motion) to amend the bill of particulars just as he or she would to amend a pleading.

The bill of particulars furnished by the plaintiff is treated as an “amplification” of the pleadings. As such, it has the effect of a pleading. Consequently, at trial, plaintiff is limited to the items and amounts specified in his or her bill of particulars. No additional items can be shown. See Baroni v. Musick (1934) 3 Cal. App. 2d 419, 421.

Apart from actions on a book account, demands for a bill of particulars arise most often in the context of common counts. Kawasho Internat., U.S.A. Inc. v. Lakewood Pipe Service, Inc., (1983) 152 Cal. App. 3d 785, 790. These include actions for:

(1) money had and received-Firpo v. Pacific Mut. Life Ins. Co., (1926) 80 Cal. App. 122, 125;

(2) money lent or paid-Moya v. Northrup, (1970) 10 Cal. App. 3d 276, 280;

(3) services and material-Jensen v. Dorr, (1911) 159 Cal. 742, 746-747;

(4) goods sold and delivered-Ben-Hur Mfg. Co. v. Empire Factors, (1960) 181 Cal. App. 2d 123, 131; and

(5) quantum meruit-Caruso v. Snap-Tite, Inc., (1969) 275 Cal. App. 2d 211, 214-215.

Even though the code authorizes a demand for a bill of particulars in an action “on an account,” it is not available in an action on an account stated. Distefano v. Hall, (1963) 218 Cal. App. 2d 657, 677.

An account stated is a new agreement by the parties which supersedes the original contract and account. Jones v. Wilton, (1938) 10 Cal. 2d 493, 498 .

Any action on it is therefore based on only the final balance agreed on by the parties and not on the original individual items of account. Hallford v. Baird, (1938) 27 Cal. App. 2d 384, 398. Therefore, itemization of the account is not possible.

If the information furnished is deemed too general or incomplete, the defendant may make a noticed motion for a further bill of particulars Burton v. Santa Barbara Nat’l Bank (1966) 247 Cal.App. 2d 427, 433.

If plaintiff delivers no bill of particulars, the court may bar plaintiff from introducing evidence at trial in support of the account claimed if the defendant makes a motion.

[calawyer]

Download Jewel's forms. We went through all of them together and they worked.

[ADSOFT]

Download Jewel's forms. We went through all of them together and they worked.

Thanks.

[ADSOFT]

I downloaded her PDF. I was hoping for a sample template with the items neccessary for a CC case

Or do you just let them send what they want and you limit them to those documents?

[jewel1325]

The samples are for a credit card case and any lawsuit where the plaintiff claims that it is on an "Open book account." You will need to tailor the motions to your specific situation.

You're on the right track by researching cases on a BOP. That's exactly what I did to glean information in composing my own BOP.

[jewel1325]

I added the link below to access the form for your first demand for a bill of particulars. Scroll down to "Demand for Bill of Particulars." You can print it out and check the boxes that you want them to respond to. You can also add anything else like a signed contract, all charges including the dates they were made and items charged, interest and penalty calculations, and all payments to offset the balance due. You definitely want to stipulate that your request is for a complete itemization on how the balance claimed in their lawsuit was derived.

http://www.courtinfo.ca.gov/programs/equalaccess/debtcoll.htm

You will need to edit the form to reflect the county where you reside.

Edited May 4, 2010 by jewel1325

[rikkivs]

Listen to Jewel and CaLawyer because they got through this using CCP 454! I am simply adding to their suggestions and making some commentary that you might find useful.

The demand for the BoP need not take on a particular form. This means you don't have to use pleading paper or the CA Rules of Court to format this important document. The ONLY thing you have to do is SERVE it to the Plaintiff attorneys. You can write a letter and the top caption could say DEMAND FOR BILL OF PARTICULARS/COPY of ACCOUNT CCP 454.

Usually the BoP requests are not filed with the court. HOWEVER in these slimy debt collection cases, it would be in your best interest to file it with the court anyway to cover your bottom. Make sure you have a proof of service attached to the BoP and that a person not related to the case serves it by mail in person or whatever.

In terms of filing motions, that is when you should be careful with form and the form of motions is dictated by the CA Rules of Court and your local rules of court and civil procedure. Each locale tends to have some quirks associated with scheduling motions, formatting motions etc. Therefore, you might want to use the clerks to make certain your paperwork won't get kicked back due to non compliance with the CA Rules of Court and or a local rule of court and or civil procedure. Start researching these issues so you don't get caught up once you do a motion to compel.

[ADSOFT]

I added the link below to access the form for your first demand for a bill of particulars. Scroll down to "Demand for Bill of Particulars." You can print it out and check the boxes that you want them to respond to. You can also add anything else like a signed contract, all charges including the dates they were made and items charged, interest and penalty calculations, and all payments to offset the balance due. You definitely want to stipulate that your request is for a complete itemization on how the balance claimed in their lawsuit was derived.

http://www.courtinfo.ca.gov/programs/equalaccess/debtcoll.htm

You will need to edit the form to reflect the county where you reside.

Thanks Guys,

I looked at Jewel link and it I'm allowed to ask for the following:

To plaintiff _______________________ [plaintiff’s name] and _______________________, plaintiff’s attorney of record: [if applicable]

PLEASE BE ADVISED that, pursuant to Section 454 of the Code of Civil Procedure, defendant demands that you provide a bill of particulars, setting forth: [check one or both]

a. • The specific items for which payment is demanded: [specify the paragraph(s) from complaint

which need clarification]

b. • The specific type and extent of services for which payment is demanded: [specify the

paragraph(s) from complaint which need clarification]

The bill of particulars must be delivered to defendant within 10 days after service of this demand.

In particular, demand is made on you to provide: [check all that apply]

a. • The dates when services were provided.

b. • The specific charges for the services.

c. • The place the service was performed.

d. • The date when each item is claimed to have been delivered.

e. • The sales price of each item.

f. • Other: [specify]

Date: ________________________

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _________________________________

(Print Name of Defendant) (Signature of Defendant)

If I don't ask for more, is the plantiff limited to build a case just the above information? I read sections that state plantiff is allow only to plead the items on the bill of particulars?

What about the agreement, and how much they paid for the debt? If I don't ask for these, can I later argue that plantiff has no case since the elements of a contractual obligation are missing:

1) Agreement

2) First hand knowledge of bill and contract

3)... etc.

Without an agreement, they would never be able to prove that the contract could be assigned so only the OC could take me to court??

Edited May 4, 2010 by ADSOFT

[jewel1325]

Keep in mind that a BOP does not count against rule 35. You can still request discovery of the plaintiff, and can ask for "the amount paid for the debt, etc."

In fact, I strongly encourage you to Request Admissions from the Plaintiff, Request for Inspection and Production of Documents, and Interrogatories.

The BOP has the advantage of letting you know what they do, or do not have. In addition, it can possibly limit the amount of recovery.

Request the BOP, and then get busy working on discovery. Hopefully you have already filed your answer, correct?

[ADSOFT]

Keep in mind that a BOP does not count against rule 35. You can still request discovery of the plaintiff, and can ask for "the amount paid for the debt, etc."

In fact, I strongly encourage you to Request Admissions from the Plaintiff, Request for Inspection and Production of Documents, and Interrogatories.

The BOP has the advantage of letting you know what they do, or do not have. In addition, it can possibly limit the amount of recovery.

Request the BOP, and then get busy working on discovery. Hopefully you have already filed your answer, correct?

Yep I already filled, and answered deragotories. Plantiff never provided an account #, demand letter, or any way of identifying the debt, so I denied everything and judge admitted it. The wasted thier 35, ... I think.

I was thinking of filing MSJ in my particular case since they don't have a thing. Thier only response to an MSJ, based on my limited knowledge of CP, would be to amend the case with some info. I could then file another MSJ since they wouldn't have enough info on the account and they are out of interoggatories.

So in my BOP might work in thier favor, they would get a chance to introduce documents which they haven't.

I understand the power of a BOP but at this point I'm really thinking of filing an MSJ just to make them squirm, then file the BOP and limit them to try to get a judgement based on that info. which would lack enought evidence.

What do you think?

[rikkivs]

You don't have enough leverage to do a motion for summary judgment yet because you haven't gotten back discovery from them yet. A judge wants to see absolutely no issues of material fact to rule on an MSJ. If the discovery is outstanding then what leverage do you have to win an MSJ?

You are over thinking this process and coming to some erroneous conclusions. Your MSJ will get shot down if you file it now. You need to get back admissions from the Plaintiff and interrogatories and other discovery. If they don't respond to request for admissions in a specific amount of time, by LAW they are deemed admitted. You can use their lack of coordination against them when it comes to meeting discovery deadlines. By all means please request the BOP asap!

Listen to Jewel and her approach, she's truly been through this before. Our case only got so far before it was dismissed for lack of prosecution but we had put in a BoP request and their response was woefully inadequate. Had the case continued on, we would have had ample reason to get their BoP ruled inadmissible.

Consider this:

1.THOUSANDS of lawsuits are filed every week in multiple jurisdictions by the same law firms using the same attorney names for the rubber stamp on their 'information and belief' affidavit.

2.What is the probability that a lawyer who has thousands of cases on his docket will even CARE about your individual case?

3.How likely is it that written correspondence you send to plaintiff attorneys will be lost, misplaced, and or misfiled?

4.Given that most consumer debts were bundled and sold like securities on wall street, how likely is it that they have ADMISSIBLE evidence of the debt and chain of ownership of the debt?

5.Given that most banks only keep records of cc transactions for eighteen months (checking and savings account have to be kept for seven years though), how likely is it that they have evidence to prove you owe them anything?

Take a deep breath and relax. Don't get caught up over thinking and get paralyzed where you take no action...it is easy to do in this state of mind and they are banking on that. The only thing I've seen from these jerks is paperwork that is rarely authenticated and CCP 98 declarations that are rarely admissible.

Should they try to run an MSJ packet by the judge including a CCP 98 declaration, you should object fully given the chances that the declaration was executed out of state.

You have a lot of outs but keep your mind calm so you can see your options. Listen to the folks who've been there like Jewel and CALawyer.

I wish you the best of luck. Please let us know how it goes.

[ADSOFT]

I wish you the best of luck. Please let us know how it goes.

Thanks, I'll get the BOP going, I had a few questions.

It just astonishes me that someone can pin a bill on you, without a contract. And as you know they can if you are sued and don't know how to defend yourself.

I know my rights under contract law, I want to keep them honest.

.. I'm starting to get the impression that I'm going to have to file for discovery after my BOP.

[rikkivs]

But don't worry, you will get it done. Jewel got through it so you have experts helping you out here! CaLawyer is also here as a contributor. Just keep yourself together and go to the law library and copy pleadings from winning defense attorneys in these types of suits. If your county posts case contents online, I'd peruse them. Also check out Alameda County Superior Court online because they post case information using a JAVA applet and or TIFF format. You can do this just go ahead and send off your BoP demand asap!

[ADSOFT]

But don't worry, you will get it done. Jewel got through it so you have experts helping you out here! CaLawyer is also here as a contributor. Just keep yourself together and go to the law library and copy pleadings from winning defense attorneys in these types of suits. If your county posts case contents online, I'd peruse them. Also check out Alameda County Superior Court online because they post case information using a JAVA applet and or TIFF format. You can do this just go ahead and send off your BoP demand asap!

Thanks, I will have a few questions on my BOP.

I looked at the form that Jewel sent me, and there is a section where you can specify more than the stardard stuff(each paragraph in the pleading, amount, dates etc).

I'm not sure if I should request an agreement, how much they paid for the debt, etc.

I will be starting on it tommorrow, I want to do a little reading on Unjust Enrichment because I can get the court to limit their damages to that amount I should be looking good.

Anyhow, I wil be starting on my BOP tommorrow.

[jewel1325]

I wish I could tell you that all you need to do is request the BOP...and then relax. Unfortunately that would be false and detrimental.

Here is what I did:

1) Request the BOP

2) Get busy preparing discovery

3) Research PACER files

4) Research Alameda Superior Court files

5) Stay up all night on weekends studying for months!

6) PM Calawyer relentlessly for help!

7) Buy books and legal guides to gain knowledge

8) Analyze the opposition and prepare a game plan

Most of all....thank God for the people on this board who donate their time (like Calawyer, Flawyer, Rikkivs, Trueq, Chapel Hill, Robin Hood, Admin, Merrybucks, Debtorshusband, Usctrojanalum, Nascar, and soooooo many others who have helped us get through this challenging process.

Edited May 7, 2010 by jewel1325

[ADSOFT]

I wish I could tell you that all you need to do is request the BOP...and then relax. Unfortunately that would be false and detrimental.

Here is what I did:

1) Request the BOP

2) Get busy preparing discovery

3) Research PACER files

4) Research Alameda Superior Court files

5) Stay up all night on weekends studying for months!

6) PM Calawyer relentelessly for help!

7) Buy books and legal guides to gain knowledge

7) Analyze the opposition and prepare a game plan

Most of all....thank God for the people on this board who donate their time (like Calawyer, Flawyer, Rikkivs, Trueq, Chapel Hill, Robin Hood, Admin, and soooooo many others who have helped us on this board get through this challenging process.

I'm relaxed, I'm not concerned, I just really wanted to file an MSJ but I got that out of my head. I know my contract law rights, they have a long way to go.

Your link really helped me and I printed out the motion for BOP. I have some basic questions.

I know we have a good group, and it looks like Unjust Enrichment might even give me more options.

I know I have arbitration as a last resort. I also have a fee wavier. So I'm not worried. My only problem is to get a process server for some of the important docs. I'm trying to find some service that will only charge $30 buck to put it in the mail. My friends and family are just too dumb and scared (sorry) to be helpfull,lol.

[jewel1325]

Wow...I don't know of any process server that would charge $30. How about a co-worker, friend, or neighbor that is competent to execute the proof of service by CMRRR? All they need to do is complete the form, take it to the post office, and pay for the certified mail delivery. You would only need a process server to subpoena a witness, or documents, for a deposition or trial.

[jewel1325]

BTW...you may not have arbitration as a last resort. Once you file motions, etc., you could potentially waive your rights to compel arbitration.

I was thinking the same thing as you during my ordeal. I learned after my first motion to compel a further BOP that I was not going to be able to back peddle and demand arbitration.

Basically you have to weigh your hand (like a poker game) and decide to go with the better hand. A BOP can help you gauge who (plaintiff or defendant) potentially has the better hand. If they hold all the cards....then maybe the wild card - arbitration is an avenue to explore. However, if they can't produce sufficient evidence...it may be better to litigate the case in court.

[ADSOFT]

BTW...you may not have arbitration as a last resort. Once you file motions, etc., you could potentially waive your rights to compel arbitration.

I was thinking the same thing as you during my ordeal. I learned after my first motion to compel a further BOP that I was not going to be able to back peddle and demand arbitration.

Basically you have to weigh your hand (like a poker game) and decide to go with the better hand. A BOP can help you gauge who (plaintiff or defendant) potentially has the better hand. If they hold all the cards....then maybe the wild card - arbitration is an avenue to explore. However, if they can't produce sufficient evidence...it may be better to litigate the case in court.

Well, at one point they have to produce an agreement, at that time I have the option???? Right?

btw, what are rules as to when you have to claim arbitration?

[calawyer]

Here is what I did:

1) Request the BOP

2) Get busy preparing discovery

3) Research PACER files

4) Research Alameda Superior Court files

5) Stay up all night on weekends studying for months!

6) PM Calawyer relentlessly for help!

7) Buy books and legal guides to gain knowledge

7) Analyze the opposition and prepare a game plan

HA!!! No fair having two 7's.

Actually, Jewel wrote some of the best briefs I have ever seen a non-lawyer prepare. I know that the Judge was very impressed.

One thing everyone should remember. Your case is very important to you. It is not so important to the plaintiff. Take the time, do a good job and you will shine by comparison to your adversary.

[rikkivs]

They litigate THOUSANDS of cases per month and even per week in some situations. They truly don't care about your personal troubles. You are simply a number to them. Jewel, of course, is totally correct. Listen to her and CaLawyer as I've said before.

I will also reemphasize that you must be familiar with YOUR JUDGES courtroom and your LOCAL RULES OF COURT and LOCAL RULES OF CIVIL PROCEDURE. Our case was dismissed last year because plaintiff's violated a LOCAL rule of court. Local rules determine whether there are quirks in filing motions and scheduling them or if there is some additional step that needs to be taken for certain processes.

For example Orange County requires a Settlement Conference sheet to be filled out before a settlement conference but other counties have you use the case management form for that purpose. You could get sanctioned in Orange County if you don't use THEIR specific form.

All of that to say, be on your p's and q's but take action as soon as possible. The more you take time to cogitate on sending the BoP, the longer they will have to get paperwork together!

I would also add to Jewel's procedure given some success stories as of late. Make sure you hold them to deadlines with very little wiggle room. Since they have ten days plus five for mailing to send your BoP, if you don't have the BoP by day sixteen, you need to send them a note telling them that you need the BoP and will do a motion to compel if you don't receive it within ten days. Chances are, if they didn't get it to you within two weeks from the outset, they don't have the documentation. Make sure to send this note with a proof of service AND include your contact information. The CA Rules of Court have explicitly stated that you cannot ONLY discuss issues in writing and that you must meet and confer via telephone or in person with them.

The day you send them the note, schedule a motion to compel at your courthouse. Unfortunately you have to schedule motions before you know if you'll need to do them...PM Chapel Hill if you want to know how to sanction the plaintiff.

Have you gotten your case management date scheduled yet?

[ADSOFT]

The samples are for a credit card case and any lawsuit where the plaintiff claims that it is on an "Open book account." You will need to tailor the motions to your specific situation.

You're on the right track by researching cases on a BOP. That's exactly what I did to glean information in composing my own BOP.

I don't think that filing a motion for BILL OF PARTICULARS is or should be very complicated and/or demand much research.

Correct me if I'm wrong, it should be a no brainer!!

Demanding proof of a debt once you go to court should be your SECOND step after answering the complaint.

ADMIN's link, which I which I will post shortly specifically states that you send a letter to the attorney to demand proof.

I think we are making this much more complicated than it is!.

[Chapel Hill]

I don't think that filing a motion for BILL OF PARTICULARS is or should be very complicated and/or demand much research.

Correct me if I'm wrong, it should be a no brainer!!

Demanding proof of a debt once you go to court should be your SECOND step after answering the complaint.

ADMIN's link, which I which I will post shortly specifically states that you send a letter to the attorney to demand proof.

I think we are making this much more complicated than it is!.

=====================================

Adsoft you state above I don't think drafting a bill of particulars takes a great deal of intellual property. I wouldn't waste my time on it. You get the same information by blasting discovery off. Sending over discovery starts the meter ticking and ultimately opens their checkbook. When you're able to costs the plaintiff hard dollars they quickly assess the appropriateness of litigating against you versus the folks that let em take a default. Fire off rogs, doc request and admission followed by meet and confer letters an a case mgt statement that specifically talks about who you will depose and when it lets the other side know they should think about writing you a check. Of course the writing you a check only applies if you followed the process.

Where some posters will tell you "oh you have to ask for a bill of particulars" folks that actually try cases will tell you, use the form from CaLawyer for meet and confer asking the trial counsel for the plaintiff to ask their client to stipulation to a cross action. Their egos will lead them down the cherry path each and every time. The response they send back gives rise to a second cause of action after the initial case is resolved. Hell their response to the stip meet and confer is better than anything that will happen in the original debt collection case because it gives rise to an automatic case most of these debt collection law firms friggin can't win. Even if they tried cases ever single day they couldn't win because in 99% of the cases they just won't have admissible evidence.

So the meet and confer after the answer is like 2 troy ounces of that funny yeller stuff. Actually with the price of gold on Friday, that would be 4.5 ounces of that funny yeller stuff.