Bill Of Particulars: Is this our best first step in defense to CC lawsuts.

[ADSOFT]

Here is something I found about BOFs:

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

I wanted to get more discussion from this by members off all states, I know this example is for california, but I'm sure the principle is simular in all states.

[calawyer]

I like doing a BOP for several reasons.

First, the Plaintiff must respond in 10 days. Beats the heck out of sending a document demand.

Second, failure to provide the requested information results in the preclusion of evidence:

It is not necessary for a party to set forth in a pleading the

items of an account therein alleged, but he must deliver to the

adverse party, within ten days after a demand thereof in writing, a

copy of the account, or be precluded from giving evidence thereof.

That beats the heck out of filing several motions to compel.

Third, it is easy for pro pers to do a BOP. You don't have to worry about asking for specific documents. It is the plaintiff's burden to give all necessary documents. If the plaintiff doesn't have them or doesn't give you everything that will support its claim, the Judge should preclude further evidence and you will win at trial.

As far as I know, this is a California-specific statute. I am not aware of any state that has a similar provision.

[rikkivs]

It seems as though in practice, the judges tend to treat the BoP request like discovery. I believe Jewel had to do a motion to compel a further BoP and it seems like they make you do a motion to compel before they are willing to exclude evidence. The other thing is that the ten day deadline includes 5 for mailing and if you get it on the sixteenth day, the courts will generally not frown upon it and allow it.

Most importantly, note that you cannot request a BoP when the cause of action is for account stated. You can do it for goods and wares delivered, monies had and received, open book account and a couple more, but not for account stated. And if the pleading uses multiple causes of action including account stated then the request for a BoP would go to those other causes of action. Sometimes they are sneaky and will strike all the causes of action except account stated!

However, if they cannot get the information to you within three weeks to a month, then a motion to compel a further bill would be in order and if they don't comply within say ten days, then you can go for sanctions AND evidence preclusion.

As to other states, Virginia allows a BoP request as well and if the plaintiff does not serve the defendant a BoP within a certain amount of time then the motion for summary judgment automatically is denied and sometimes the case is even dismissed, and evidence can be excluded also.

Edited May 3, 2010 by rikkivs

[calawyer]

It seems as though in practice, the judges tend to treat the BoP request like discovery. I believe Jewel had to do a motion to compel a further BoP and it seems like they make you do a motion to compel before they are willing to exclude evidence.

Correct. One drawback is that many Judges have never heard of a BOP. You will have to eduate your Judge. Actually, however, the statute allows the Court to order a further account if the one provided is too general. Most Judges will liken this to the requirement of a motion to compel and will want to see the plaintiff ignore an order compelling a further account before any evidence is precluded.

As to other states, Virginia allows a BoP request as well and if the plaintiff does not serve the defendant a BoP within a certain amount of time then the motion for summary judgment automatically is denied and sometimes the case is even dismissed, and evidence can be excluded also.

Interesting. Thanks for sharing.

[ADSOFT]

Excuse my ignorance, but what is " cause of action is for account stated"?

Does that mean that specify the account in the summons?

[jewel1325]

That was definitely my experience...I had to motion the court for a further bill of particulars. Even then it was viewed like a discovery request. Ultimately the judge did preclude the evidence. Although I still feel that it should have been done sooner. In the end the Plaintiff had nearly 10 months to produce a BOP that by statute was due in 10 days.

[rikkivs]

At first sight, it would appear as though CCP 454 makes a BoP request a walk in the park and that if they don't obey the ten day deadline, their goose is cooked. Nothing could be further from the truth. The judges are particular in terms of how they apply the law. Now, in Jewel's case, I think the judge played her BoP request like usual discovery because he wanted to make sure that the case could be tried on its merits.

CCP 454 if applied rigidly, could act against the interest of justice if a judge literally applied the ten day deadline every time. It could be that the evidence of the debt exists but might take longer to acquire than ten days. And if the case is dismissed, due to a rigid interpretation of CCP 454 then it can be appealed and new evidence can be brought and you will lose.

The way the Judge in Jewel's case behaved set things up so that the case was pretty much tried on its merits and that they have absolutely NO WAY to appeal because within ten months they didn't supply evidence of the debt, so Jewel came out like a champ in this case and the judge hooked her up in the end... The matter truly is CLOSED.

As to what a cause of action of account stated is...we've discussed this in depth in other threads. Needless to say, on the CA Judicial forms they check a box saying that an account was stated in writing within the last two years or four years. Account stated means that you and the plaintiff had prior business interactions - prior course of dealing, that you received statements in the mail on a regular basis and that you never OBJECTED to the statements, and lastly that the amount in the statements that you didn't object to was fixed and agreed upon.

In CA, you have to use very specific defenses to get around an account stated cause of action and they go like this:

1.No Prior Course of Dealing

2.Defendant objected verbally and or in writing the particulars of the alleged account with the plaintiff

4.Statute of frauds violation...terms and conditions of loan or credit card with interest rates and finance charges cause the debt to be subject to statue of frauds because it would take longer than a year to pay off the debt.

5. No contractual instrument referenced or attached in complaint...There is a understanding that there was an underlying contractual instrument that was the source of the account stated and it was not referenced in the complaint...cause of action inappropriate for collection of alleged debt...

Edited May 4, 2010 by rikkivs

[ADSOFT]

At first sight, it would appear as though CCP 454 makes a BoP request a walk in the park and that if they don't obey the ten day deadline, their goose is cooked. Nothing could be further from the truth. The judges are particular in terms of how they apply the law. Now, in Jewel's case, I think the judge played her BoP request like usual discovery because he wanted to make sure that the case could be tried on its merits.

CCP 454 if applied rigidly, could act against the interest of justice if a judge literally applied the ten day deadline every time. It could be that the evidence of the debt exists but might take longer to acquire than ten days. And if the case is dismissed, due to a rigid interpretation of CCP 454 then it can be appealed and new evidence can be brought and you will lose.

The way the Judge in Jewel's case behaved set things up so that the case was pretty much tried on its merits and that they have absolutely NO WAY to appeal because within ten months they didn't supply evidence of the debt, so Jewel came out like a champ in this case and the judge hooked her up in the end... The matter truly is CLOSED.

As to what a cause of action of account stated is...we've discussed this in depth in other threads. Needless to say, on the CA Judicial forms they check a box saying that an account was stated in writing within the last two years or four years. Account stated means that you and the plaintiff had prior business interactions - prior course of dealing, that you received statements in the mail on a regular basis and that you never OBJECTED to the statements, and lastly that the amount in the statements that you didn't object to was fixed and agreed upon.

In CA, you have to use very specific defenses to get around an account stated cause of action and they go like this:

1.No Prior Course of Dealing

2.Defendant objected verbally and or in writing the particulars of the alleged account with the plaintiff

4.Statute of frauds violation...terms and conditions of loan or credit card with interest rates and finance charges cause the debt to be subject to statue of frauds because it would take longer than a year to pay off the debt.

5. No contractual instrument referenced or attached in complaint...There is a understanding that there was an underlying contractual instrument that was the source of the account stated and it was not referenced in the complaint...cause of action inappropriate for collection of alleged debt...

Can't the Judge/Court be held responsible for not upholding the 10 day rule?

The judge wanted to sanction for me being over 30days on interrogatories, wtf.

What are the penalties for not responding in 10days?

... I guess all they can do is sanction the plantiff, now that I think about it, it doesn't say that defendent can have case dismissed.

Yep you would have to have the court compel.

However, I have read that if a case is not brought to TRIAL (not served) in two years defendent can motion for case to be dismissed? Is that right?

[rikkivs]

The case can be dismissed for lack of prosecution after that time. But even still you have to notify the plaintiff one hundred eighty days before you file a motion to dismiss for lack of prosecution!

As to judges abusing their discretion this happens all the time! I don't condone it; it is what it is.

[ADSOFT]

The case can be dismissed for lack of prosecution after that time. But even still you have to notify the plaintiff one hundred eighty days before you file a motion to dismiss for lack of prosecution!

As to judges abusing their discretion this happens all the time! I don't condone it; it is what it is.

Thanks, well that might work for me when I go to my case management hearing and ask to have sanctions by plantiff denied.

I have tons of examples.