varesa01

Response to Demand for Particulars

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After having been served with summons and answering summons from JDB, I sent a Demand for Bill of Particulars requesting as follows:

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 Plaintiff came up with amount suing for in the amount of $4,376.74.

I received the following response (my comments in upper case):

1. The complaint is based on an open book account (NOT TRUE STATEMENT) and quantum meruit, and an account stated and Defendant's breach thereon in the principal amount of $4,376.74. True and correct copies of the statements will be furnished to Defendant as they become available. Plaintiff reserves the right to produce more billing statements as they become available or produce them at trial. (THEY SAY "MORE" BUT TO DATE NO STATEMENTS OR OTHER EVIDENCE PRESENTED).

2. The billing statements will demonstrate a course of conduct (GOES ON TO SAY) these statements will demonstrate defendants failure to pay the indebtedness incurred.

3. Plaintiff Equable reserves the right to produce other evidence (THEY'VE PRODUCED NONE) as it becomes available including, but not limited to, records kept in the ordinary course of business.

Their general objection states that "literal compliance would require responses that are burdensome and oppressive". ?? Isn't it their responsibility to provide evidence requested that I owe them money?

I have Case Management Conference October 2011 but I am not sure how to proceed from here.

Should I send a formal Discovery? Is that more compelling than the Request for Bill of Particulars?

Love this forum and really appreciate all the assistance it provides to so many.

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The response you received is insufficient. Plaintiff is required by statute to provide the information within 10 days. In essence, this statutory procedure is a substitute for setting forth the complete accounting in the complaint. Therefore the plaintiff should have it at the ready and give it to you upon demand. There is nothing burdensome and oppressive about a procedure required by law. Plaintiff’s statement that is “reserves the right to produce documents later is the opposite of what the code requires. CCP 454 says that plaintiff must respond to the BOP “or be precluded from giving evidence thereof.”

The likely problem is that plaintiff doesn’t have the information. So, you need to get a court order requiring the plaintiff to give it to you. First, you must meet and confer. That just means you need to send plaintiff a letter. The letter should say California Code of Civil Procedure section 454 requires you to respond in 10 days. You did not do so. If I do not have a proper response by _____ [insert date 10 days from now], I will file a motion asking the Court to preclude plaintiff from giving any such evidence at trial.

Your motion to the Court can be very simple. You should probably ask that plaintiff be required to provide a further BOP or, in the alternative, be precluded from using any such evidence at trial. If you need help with the motion, post again. Several people on this board have filed them and may be able to email you an exemplar.

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Thanks calawyer. This is exactly what I was looking for also.

I have one more question though. I sent a BOP and received what I believe to be an insufficient response and want to make sure that I should move forward with the meet and confer process that you mentioned in your post. I apologize for asking again but I want to be really sure that I'm doing the right thing.

My BOP requested:

  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 Plaintiff came up with amount suing for in the amount of $5597.38

I received the following response:

1. I am an attorney duly licensed to practice law in the State of California and an associate of xxx Law Firm, attorneys for the plaintiff. The following declaration is made of my own knowledge and if sworn as a witness, I would and could completely testify thereto.

2. Attached hereto is a Statement of Account showing the current amounts owed by the defendant to the plaintiff.

3. In addition to the principal and interest amounts stated within the Statement of Account, the plaintiff claims that costs and attorney fees have been incurred and are also due and owing per statute and/or the parties written agreement.

4. Plaintiff has not yet completed its discovery and/or investigation as to what other amounts plaintiff may be entitled to in accordance with the law and/or the parties' agreement. As such, plaintiff reserves the right to amend this response at any point prior to and at trial.

Account Statment

Primary Borrower:

ready2win

street address

city, California

Statement Date: January 11, 2011

Account#: xxxxxxxxxxxxxxxx

Referred Balance: $5597.38

Rate of Interest: 10.0000%

Previous Balance: $5597.38

Payments Received: $0.00

Last Payment Date: 04/03/2009

Current Principal: $5597.38

Current Interest: $134.95

_____________

Total Due: $5732.33

Edited by ready2win
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Readytowin, as Calawyer said to the original poster, the plaintiff response to your BoP demand was insufficient. Follow the procedure outlined by Calawyer above. Send them a letter, then get your motion together.

NOW, for the original poster, they are suing you under quantum meruit and account stated as well. Those causes of actions to not avail themselves to a BoP request, unless you emphasize that account stated arises from previous agreement and you'd need and accounting under the previous agreement.

In other words, you have to prepare a defense for those causes of action. Unfortunately they don't need a lot of evidence to get you on those causes of action, you ought to investigate how to defend against them. Toss out some discovery like requests for admissions and documents and tangible things, for example. You cannot just rely upon CCP 454 to get you out of this situation, because if the worst case scenario occurred, they would amend their complaint to strike the causes of action that pertain to the BoP and KEEP the quantum meruit and account stated causes of action. In which case, how would you defend yourself then?

Bottom line, you're doing well but keep up your momentum. Don't get so stuck on CCP 454 that you forget other strategies to apply, but listen to Calawyer. Since they are non compliant with your BoP demand, after your motion to compel you could likely go for sanctions;) Good luck.

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Thank you Calawyer and Rikkivs. I should point out that they did respond within the 10 days but they have NEVER provided me with any kind of document to show that I owe them the money.

I will take Rikkivs' advice and go ahead with discovery and keep pushing for documents from them.

Strangely I'm actually enjoying the battle :) Have to admit that I didn't have much armament before I found this site though!

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Thank you Calawyer and Rikkivs. I should point out that they did respond within the 10 days but they have NEVER provided me with any kind of document to show that I owe them the money.

I will take Rikkivs' advice and go ahead with discovery and keep pushing for documents from them.

Strangely I'm actually enjoying the battle :) Have to admit that I didn't have much armament before I found this site though!

I my view, the response is so insufficient is does not constitute a respionse at all.

"True and correct copies of the statements will be furnished to Defendant as they become available" That is a joke. Plaintiff is required to have this information at the ready and provide it in 10 days upon request.

You need to do a short meet and confer letter. Tell them they have until 10 days from now to produce and if not, you will file a motion to compel and/or motion

to preclude plaintiff from giving any such evidence at trial.

Good luck.

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Sorry, didn't mean to hijack the thread. After reading it, logically I saw that my issue is pretty much the same. Even so, I still ended up wondering if there was any language in the response that would somehow come back and bite me. I'll use the info that you both gave to Varesa01 and move ahead with the meet and confer. Thanks!

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Yes, get your discovery rolling but by state rules of court you MUST attempt to meet and confer with them. Since their response was inadequate send off that letter giving them ten days to come up with something, otherwise you'll do a motion to compel/motion more definite statement. Meanwhile, send out your requests for admissions because from what I've seen, they are the only discovery device that has very HARD deadlines. If they don't answer within the allotted time, then you can do a motion to get the admissions deemed admitted. Something like: Admit you don't have accounting of this alleged debt, admit you don't have instrument under which alleged debt is based etc...

Meanwhile a motion in limine ought to be prepared. Good Luck.

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Yes, get your discovery rolling but by state rules of court you MUST attempt to meet and confer with them. Since their response was inadequate send off that letter giving them ten days to come up with something, otherwise you'll do a motion to compel/motion more definite statement. Meanwhile, send out your requests for admissions because from what I've seen, they are the only discovery device that has very HARD deadlines. If they don't answer within the allotted time, then you can do a motion to get the admissions deemed admitted. Something like: Admit you don't have accounting of this alleged debt, admit you don't have instrument under which alleged debt is based etc...

Meanwhile a motion in limine ought to be prepared. Good Luck.

Can you recommend some addmissions to send the Plaintiff?

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I don't recall the particulars of your case or cases but requests for admissions ought to reflect the details of your case. For example, if they're suing you under account stated and refer to a written agreement, you might ask them to admit that they don't have an itemized accounting of the alleged debt from zero balance. Ultimately if they cannot prove how they arrived at some numbers, they cannot prevail on the suit. If they referred to a credit agreement but didn't attach it to the complaint, you can ask them to admit that they aren't in possession of the alleged written agreement and so forth. Get your facts together and their version of events and pick holes in their story, then turn those holes into slam dunk admissions requests that you know they won't be able to answer!

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Thank you Calawyer and Rikkivs and anyone I may have missed.

I did send another letter requesting using the information given me re CCP 454 and meanwhile, received a set of interrogatories from them, request for documents and request for admission but before I even begin to deal with that, I am first sending them my own interrogatory.

Seems as though they're trying to bury me with paper and requests. Actually calling themselves an "assignee" which is a blatant lie. Anyway, inch by inch .. step by step :) They call it a "special interrogatory". Does that have any particular meaning?

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There is a standard discovery form with specific questions for Contract cases, you might get a member to recommend that form to you.

When I get back in my office I will post the number of the form. It has some very good questions.

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You're doing well to attack this on multiple fronts because some judges treat CCP 454 like ten days really can mean ten months sometimes! Thus, the requests for admissions and other discovery can shorten the battle considerably, and of course, Calawyer was right! Their response really is a non answer and just about lends itself to a counterclaim. As an aside one sneaky thing they might try to do is to object to your request and say that you're trying to use CCP 454 as a discovery device; this is from personal experience. Ultimately keep it moving because the meet and confer letter, coupled to the discovery you send out will allow you to skin them. Best wishes!

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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.

If the pleading is verified the account must be verified by the

affidavit of the party to the effect that he believes it to be true;

or if the facts are within the personal knowledge of the agent or

attorney for the party, or the party is not within the county where

the attorney has his office or from some cause unable to make the

affidavit, by the affidavit of the agent or attorney.

In my case at the trial the JDB blantantly had the witness not appear and submitted the Decl. in lieu of live testimony. So I brought out the BoP to show he identified himself as an agent. so waitting for the results I looked further in ccp and all info i could.

I think I highlighted the key areas to concentrate on. I believe that the preclusion can be argued in limine or at trial that the statute precludes the evidence from being admitted.

Sorry to threadjack but just some good points to keep in mind for other things BoP is useful for.

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There is a standard discovery form with specific questions for Contract cases, you might get a member to recommend that form to you.

When I get back in my office I will post the number of the form. It has some very good questions.

ADSOFT, would you mind posting that here? I'm being sued by a CA/law firm and I would love to be able to use a discovery questionnaire that's been successful in the past.

Thanks for your help

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Thank you Seadragon. The wording of 454 was really an eye opener and gives me much more hope.

These JDBs are amazing! They sent me Interrogatories, Request for Documents and Request for admissions. So, they are requesting documents from me which I had requested from them through Bill of Particulars (and did not receive) so that they can make their case against me??!!

Before I even respond to them I am sending off my own Interrogatories, Request for Documents, and Request for Admissions, using their own wording on the Request for Documents with only slight changes, i.e. exchanging the words "Defendant" and "Plaintiff".

Already sent off the followup on Bill of Particulars giving then 10 days to respond fully. Then if I do not get the documents will go with motion to comply.

Again, much appreciation for all the assistance I have received :)

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Did notice that on all the documents received from the JDB, the name of the bank is incorrect. They state "Washington Mutual" when I obtained the card directly through Chase online and I have never had a bank account or any dealings with Washington Mutual. This was not a "Washington Mutual" account purchased by Chase. So when they say "issued by Washington Mutual" or "contract with Washington Mutual" they are incorrect and in all of their statements that reference Washington Mutual, they are incorrect.

In one instance only in interrogatory #1 do they refer to Chase: "Assignor (incorrect as account never assigned) Washington Mutual Chase Card" has assigned all rights and interests in this matter to Plaintiff Equable Ascent". Thereafter they ask me for documents and admissions related to Assignor, Washington Mutual.

At this time I intend to deny any relationship between myself and Washington Mutual where that is stated but of course will do some research on this before I respond to their requests.

Tricky stuff!

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Need some judgment on this.

In my "Documents to be Produced" I am saying, "please produce copies of all written documents between Plaintiff and defendant" .. And in Request for Admissions I am saying "Admit that Defendant did not enter into a contract with Plaintiff" or much to that effect.

My daughter said those two statements conflict and are illogical as I am requesting documents which I am then asking them to admit do not exist. Am I being completely illogical? My feeling is that they can produce them or admit that they do not exist.

Any feedback very much appreciated.

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Need some judgment on this.

In my "Documents to be Produced" I am saying, "please produce copies of all written documents between Plaintiff and defendant" .. And in Request for Admissions I am saying "Admit that Defendant did not enter into a contract with Plaintiff" or much to that effect.

My daughter said those two statements conflict and are illogical as I am requesting documents which I am then asking them to admit do not exist. Am I being completely illogical? My feeling is that they can produce them or admit that they do not exist.

Any feedback very much appreciated.

Perhaps you wouldn't be contradicting yourself if you asked for copies of written documents between plaintiff and defendant, provided they exist.

Admission, Admit that Defendant did not enter into an express contract with plaintiff. That way you are asking them to say that plaintiff and defendant never had a signed agreement showing terms and conditions between them.

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