Will be filing my BOP tommorrow, here is my first draft.

[ADSOFT]

Hi Guys.

I'm in Californnia, and will be filing my BOP tommorrow. Here is my first draft, I have to get started on this as I've sort of have been putting it off. I'm requesting these first items, what else can I ask for?

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,

I forget where I got this from but I don't want to edit it as it might be help for someone else in california.

I want to change item 1) so as they have an itemized statement of the account and how they came up with amount being sued for.

2) should be more like: "An agreement/contract of said account.

I also would like to add any witnesses.

I'm kind of just jumping on this, though I did some preliminary research a few months back. I will be adding more info as I start pulling things out.

i) What do you guys think of this?

ii) Any suggestions?

iii)Does anyone know if they have to resond in 10 days, .. I thought it was 15 DAYS?

[ADSOFT]

Well I guess it is 10 days:

454. 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.

The court or judge thereof may order a further account when the one

delivered is too general, or is defective in any particular.

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=00001-01000&file=452-465

.. now I have to figure out what else to add and how to get a process server. I will probobly hire a professional one.

[ADSOFT]

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]

¨ 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]: How plantiff came up with a fee of (what they are suing me for).

Date: ________________________

I think I will be adding that and letting it go.

Any comments.

[ADSOFT]

Ok guys here is what I'm going with:

Defendent

Street

Town, CA, 9XXXX

Tel: 714-xxx-xxxx

Defendent in Pro Per

Superior Court of the State of Californnia

For the County of xxxx

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) An agreement and/or contract of said account

2) Proof that the plaintiff owns such account,

3) The specific items for which payment is demanded:

4) Date of each item, transaction or service.

5) The specific charges for the services.

6) How the Plantiff came up with amount suing for in the amount of $_______.

Any comments?

[FL4answer58]

HI ADSOFT

It looks good, But I have a question on CA and your BOP method.

I have read that BOP's are not realy effective in modern 'Discovery' procedure.

Is it becuase your other option, a motion for a more definite statement would be denied? "If, however, the information sought by such a motion is obtainable by use of discovery mechanisms, the motion will be denied."

Re:

"In civil actions a bill of particulars is a written demand for the specifics of why an action at law was brought. Although usually requested by a defendant, it can be demanded by a plaintiff if the defendant makes a counterclaim for a setoff or asserts a defense against him or her. A bill can be submitted either voluntarily or pursuant to a court order for compliance with the demand. Its function is to give the party who requests it knowledge of what the opposing party has alleged in order to protect the party requesting the bill from surprise and in order to establish the real issues of the action. It also serves to expedite the orderly progress of judicial proceedings by reducing, if not eliminating, the need for the amendment of ambiguous or vague pleadings. A bill of particulars is neither a pleading nor proof of the facts it states, but, rather, an elucidation of a pleading. It is not to be used as a discovery device to learn the evidence or strategy to be used at trial by the opposing party."

"State codes of civil procedure impose rules that govern the use of bills of particulars in civil actions brought in state court. In federal courts the Federal Rules of Civil Procedure have replaced the use of a bill of particulars with a motion for a more definite statement. If, however, the information sought by such a motion is obtainable by use of discovery mechanisms, the motion will be denied."

Why BOP when Discovery serves same purpose...I don't understand the reason - goal?

Just trying to learn ...

[ADSOFT]

HI ADSOFT

It looks good, But I have a question on CA and your BOP method.

I have read that BOP's are not realy effective in modern 'Discovery' procedure.

Is it becuase your other option, a motion for a more definite statement would be denied? "If, however, the information sought by such a motion is obtainable by use of discovery mechanisms, the motion will be denied."

Re:

"In civil actions a bill of particulars is a written demand for the specifics of why an action at law was brought. Although usually requested by a defendant, it can be demanded by a plaintiff if the defendant makes a counterclaim for a setoff or asserts a defense against him or her. A bill can be submitted either voluntarily or pursuant to a court order for compliance with the demand. Its function is to give the party who requests it knowledge of what the opposing party has alleged in order to protect the party requesting the bill from surprise and in order to establish the real issues of the action. It also serves to expedite the orderly progress of judicial proceedings by reducing, if not eliminating, the need for the amendment of ambiguous or vague pleadings. A bill of particulars is neither a pleading nor proof of the facts it states, but, rather, an elucidation of a pleading. It is not to be used as a discovery device to learn the evidence or strategy to be used at trial by the opposing party."

"State codes of civil procedure impose rules that govern the use of bills of particulars in civil actions brought in state court. In federal courts the Federal Rules of Civil Procedure have replaced the use of a bill of particulars with a motion for a more definite statement. If, however, the information sought by such a motion is obtainable by use of discovery mechanisms, the motion will be denied."

Why BOP when Discovery serves same purpose...I don't understand the reason - goal?

Just trying to learn ...

The reason is it's easy. If the motion is denied then I will go to discovery. It's just another way to get more info and it doesn't use up your discovery questions.

I doubt if the motion would get denied in california since not only has CALAWYER and others in california recommended it but the book that I'm using as a guide also recommends it.

If the motion is denied I will file formal discovery procedings.

[rikkivs]

Because if you get sued and they don't provide you an itemization of the account from zero balance, you motion to compel a further bill of particulars and say that you are prejudiced from forming an adequate defense if you don't know why they are suing you, how they came to their figures and whether you actually have any fiduciary relationship with them. And this is sound reasoning. In CA, from the offset if they don't provide a BoP within usually a month or so then things look bad for them and you can take other steps to cook their goose. Written discovery methods used in conjunction with a BoP request is aggressive and they will not be able to adequately provide the documents you request.

In CA, the BoP need not take on a particular form it could even be a letter and you don't even have to be all that specific! But the more specificity you provide, the better it can be for you I think. Get some requests for admissions together to send out within two weeks after you've sent you BoP request. This is because it isn't ten days exactly and the court will usually grant them continuances etc but while they are doing that, you can mire them in paperwork and they will likely not be able to meet deadlines for discovery. So fire off that BoP and get some requests for documents and admissions together too!

[ADSOFT]

Because if you get sued and they don't provide you an itemization of the account from zero balance, you motion to compel a further bill of particulars and say that you are prejudiced from forming an adequate defense if you don't know why they are suing you, how they came to their figures and whether you actually have any fiduciary relationship with them. And this is sound reasoning. In CA, from the offset if they don't provide a BoP within usually a month or so then things look bad for them and you can take other steps to cook their goose. Written discovery methods used in conjunction with a BoP request is aggressive and they will not be able to adequately provide the documents you request.

In CA, the BoP need not take on a particular form it could even be a letter and you don't even have to be all that specific! But the more specificity you provide, the better it can be for you I think. Get some requests for admissions together to send out within two weeks after you've sent you BoP request. This is because it isn't ten days exactly and the court will usually grant them continuances etc but while they are doing that, you can mire them in paperwork and they will likely not be able to meet deadlines for discovery. So fire off that BoP and get some requests for documents and admissions together too!

Don't I have to wait to get my answer to the BOP before filing for discovery?

In Calif. they give you an extra 5 days to account for mail delays. I'm having process server send it out as I have a case management hearing on 10/5/2010 which is 11-12 days away. I might not have my info back by then but at least I can tell the judge I've taken steps to defend myself.

When do you recommend I send out my discovery stuff. I don't want to be asking for the same info in I did in my BOP, ... or do I?

[rikkivs]

In CA, you can send off your BoP request while you answer, before you answer, or after you answer. The BoP is supposed to be an elucidation of the pleadings this means it is to clarify what you they might not have included in the complaint. For example, usually in CA they use the CA Judicial Council forms for debt collection suits. The forms are not very specific and they don't require an account number to be listed, nor how the amount they're suing for was calculated. Basically these creditors/banks can sue someone and not include a shred of evidence. If you are to have a fair shot at preparing a defense, you need to understand the basis of their complaints. The BoP is supposed to be a 'copy of the account' and should generally itemize the account from ZERO balance, also should include account statements and copy of credit contract you signed. This has been established by precedent and although a BoP is not supposed to be used as a discovery device, the BoP narrows the scope of what can be discussed at trial. This means that if information was not included in the BoP, then it cannot be presented at trial. As a defendant you have a distinct advantage here. In some situations if the pleadings are really vague you might try requesting a BoP before you answer and if they can't provide you a BoP before answering time is up, do a motion to compel and then to dismiss.

[ADSOFT]

In CA, you can send off your BoP request while you answer, before you answer, or after you answer. The BoP is supposed to be an elucidation of the pleadings this means it is to clarify what you they might not have included in the complaint. For example, usually in CA they use the CA Judicial Council forms for debt collection suits. The forms are not very specific and they don't require an account number to be listed, nor how the amount they're suing for was calculated. Basically these creditors/banks can sue someone and not include a shred of evidence. If you are to have a fair shot at preparing a defense, you need to understand the basis of their complaints. The BoP is supposed to be a 'copy of the account' and should generally itemize the account from ZERO balance, also should include account statements and copy of credit contract you signed. This has been established by precedent and although a BoP is not supposed to be used as a discovery device, the BoP narrows the scope of what can be discussed at trial. This means that if information was not included in the BoP, then it cannot be presented at trial. As a defendant you have a distinct advantage here. In some situations if the pleadings are really vague you might try requesting a BoP before you answer and if they can't provide you a BoP before answering time is up, do a motion to compel and then to dismiss.

Motion to Compel and then to Dismiss is my strategy. That is why I want to wait to see what they do with the BOP. If they don't answer the BOP do you recommend that I wait for the results of a motion to compel before going into discovery? I don't want to give them a second chance to get back in the game?

[dabradshaws]

Does A BOP work in all states, some? Thanks

[ADSOFT]

Does A BOP work in all states, some? Thanks

It works in California.