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Just got an objection to a BOP sent to CA attorney claiming that it exceeds California Code of civil procedure 454 and refering to a statement that was sent earlier w only alleged total owed. What should i do next? Should I send a meet and confer letter informing them of a motion to comply and see what else i can get from them, or should i just file a MTC.

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Check out my post on this same post regarding BOP. The plaintiff in my case refuse to answer it also but do include some statements from the OC. If they sent you nothing, they may have nothing.

I sent off a 2nd BOP request quoting the law you will see in my bop thread and they still won't comply. I was told to file a MTC to the court and ask the judge to make them comply or preclude them from using any of the information I asked for in the BOP. Thats where I am at now.

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Can a BOP be requested if the complaint alleges that defendant became indebted to plaintiff;

a. [X] within the last four years

(1) [X] on an open book account for money due.

(2) [X] because an account was stated in writing by and between plaintiff and defendant in which it was agreed that defendant was indebted to plaintiff.

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A Bop request is proper for an open book account. They MUST provide you with an itemized accounting from zero balance. There is a case precedent that says if you're being sued under account stated only then 'there is nothing left to itemize' but that is debatable when talking about credit cards because by definition they are open revolving accounts. So because they have checked the box that says open book account and the account stated in writing box, your BoP request IS proper. Anything they say to the contrary is sheer bs. Now they might try to amend their complaint to strike the open book cause of action, but if they do that you can always amend your answer to specifically counter the account stated cause of action. Keep it up. You will need to meet and confer via telephone and if they don't respond to you, motion in limine is always helpful...

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It is best to meet and confer in writing. Then, when you file a motion with the court you can simply attach the letter to your affidavit instead of explaining what everyone said on a phone call. Although there is no explicit meet and confer requirement in CCP 454, the Courts are accustomed to seeing them in discovery motions and will appreciate the effort to informally resolve the matter. Here is a letter I drafter for someone a ferw weeks ago. Modify as appropriate:

On ____, Defendant served its request for a Bill of Particulars on Plaintiff. Pursuant to CCP section 454, Plaintiff has ten days to respond or it will "be precluded from giving evidence thereof." As described below, plaintiffs’ response is entirely deficient.

As a preliminary matter, plaintiff’s objection to Defendant’s Bill of Particulars is not well taken. Plaintiff has alleged a cause of action for Open Book Account. A Bill of Particulars is appropriate under this legal theory as plaintiff concedes in ultimately responding.

The response served, however is not sufficient. Plaintiff has not provided an itemization of the account showing all charges and credits thereto. It has not provided the underlying contract referred to in the complaint. Nor has it provided any contract of assignment of the claim at issue in this litigation. Such basic information is required to prove plaintiff’s claim. Plaintiff should have such information readily at hand. If not, it is difficult to understand how plaintiff acquired a good faith basis to file the lawsuit. Indeed, the only account statements plaintiff has provided demonstrate full payment of the amounts requested.

Please serve a full response on or before [insert date 10 days from date of letter]. If Plaintiff fails to do so, Defendant will move the Court for an order requiring a further response or, in the alternative, an order precluding Plaintiff from offering any such evidence at trial.

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Thank you Calawyer for the time you spend here. ::ImInLove::

Thank you for saying that. Makes it all worthwhile.

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Thanks for your suggestions! I will keep you posted. CAlawyer thanks for the template, will customize and forward same.

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Ok.. so here's the latest...just got a denial reply to my meet & confer letter for the BOP,Plantiff's attorney is claiming that bank statement for 2 months with alleged balance is sufficient for response to BOP, hence if i file he will object MTC and seek sanctions.

Now we are suppose to be in court this week b/c they fail to file Case Management Review and the judge ordered us in for a show cause hearing. Should i then go to court with MTC and sanctions for fail CMR and what should i expect at the hearing.

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You might consider raising it at the next hearing if you see a good opening. The Court will probably tell you to bring a motion to compel, but you might get some relief from the bench. I would preface it by saying something like, "As the Court is aware, I am representing myself in these proceedings. In response to my BOP, the plaintiff has refused to produce anything other than 2 months' worth of statements. That is plainly insufficient to sustain plaintiffs' burden at trial. If I am forced to file a motion to compel, I will do so. However it is difficult for a non-lawyer to navigate the court system and I would apprciate any assistance the Court might render in obtaing this basic discovery."

Again, the Court might just tell you to file a motion, but it is worth a shot. You should also probably start working on a motion.

Edited by calawyer

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THANK YOU GUYS!!!!!! :)especially CAlawyer...i was a good student today in court. I followed your suggestion to raise the issue of the BOP and judge says i should file my MTC. Well i was happy about that i tried to throw the kitcken at them but only got the sink.

The judge asked if the case was all good for trial and i told him that apart from the Plaintiff's objection to my BOP, which i might have to file a MTC for, its all ready...so he said he will set bench conference for July and that with such date i'll have ample time to have the MTC heard.

Did I say that the Plaintiff's attorney was not in court...LOL...so the judge instruct counsel on sanction for non appearance, at which point i asked for sanction for failure to file CMR...The judge was like a CMR was not file. I told the judge that i have not recieved any from plaintiff...so he looked at the file and order sanction #2 in the amount of $100.00 payable in 20 days for failure to file CMR! LOL

Now all i have to do is get my motion date and i am ready to go at them again!

THANKS GUYS......You make me feel like a lawyer in court today!!!

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Excellent. Nice going. This case is going to cost them some money. Wish I had a sample motion for BOP for you but I don't. Why don't you do a first draft and we'll help you with it.

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This is the one that i drafted. I just call the court and got my Motion date for June 14th

here is the draft,

________________________________________________

Your Honor

COMES Now Defendant, XXXXXXX, and files this MOTION TO COMPEL DEMAND FOR BILL OF PARTICULARS and requests the Court to grant such Motion based on facts stated below.

1. Defendant served Demand for Bill of Particular by U.S. Mail to Plaintiff's attorney, XXXXXXXX, on April 18, 2011. A copy of the mailing declaration and Demand of Particular is attached hereto as Exhibit "A."

2. On April 27, 2011, defendant received Plaintiff’s objection to Demand for Bill of Particulars and Two (2) Bank of America account statement for April and May 20XX respectively. Both of which has an alleged payment and a total balance due. A copy of which is hereto attached as Exhibit "B.

3. Defendant mailed a Good Faith letter to Plaintiff's attorney XXXXXXX on May 10, 2011, requesting that Plaintiff sufficiently respond, as his objected response and submission of Bank of America account statement for April and May was incomplete and insufficient. A copy of which is hereto attached as Exhibit "C."

4. On May 22nd 2011, defendant received a response to good faith letter from Plaintiff’s attorney dated May 17th 2011 stating that his response was sufficient and any motion to preclude these documents will be objected. A copy hereto attached as Exhibit “D”

Respectively, CCP. CODE § 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."

CONCLUSION

Defendant has made good faith efforts to remind the Plaintiff of his responsibilities to answer Demand of Particular, and as of this date, Plaintiff has not sufficiently provide itemized charges or documents to complete request and has adamantly stated that he will objects any motion to preclude these documents. Plaintiff's complaint is based on an open book account and facts that they allegedly possess. Defendant has repeatedly requested these documents and proofs of facts, but has been denied.

Respectfully submitted,

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Please excuse my interruption, but what does "CMR" mean?

Thanks...and great job in court, aqui--thanks for sharing your experience. It makes it a bit less intimidating for those of us in this situation who have not yet encountered these situations.

take care. ;)

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trigger a CMR - Case Management Review....in Cali a case management review statement is due 15 days before the CMR date set by the court where the clerk review the case to see how things are proceeding so that a trial date can be set for the case.

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trigger a CMR - Case Management Review....in Cali a case management review statement is due 15 days before the CMR date set by the court where the clerk review the case to see how things are proceeding so that a trial date can be set for the case.

Thanks so much, aqui...! So the plaintiff was supposed to file, but did not? ....aaaand got sanctioned by the court? :lol:

Awesome.

Edited by tigger
clarify post; grammar.

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Excellent. Nice going. This case is going to cost them some money. Wish I had a sample motion for BOP for you but I don't. Why don't you do a first draft and we'll help you with it.

This is the one that i drafted. I just call the court and got my Motion date for June 14th

here is the draft,

________________________________________________

Your Honor

COMES Now Defendant, XXXXXXX, and files this MOTION TO COMPEL DEMAND FOR BILL OF PARTICULARS and requests the Court to grant such Motion based on facts stated below.

1. Defendant served Demand for Bill of Particular by U.S. Mail to Plaintiff's attorney, XXXXXXXX, on April 18, 2011. A copy of the mailing declaration and Demand of Particular is attached hereto as Exhibit "A."

2. On April 27, 2011, defendant received Plaintiff’s objection to Demand for Bill of Particulars and Two (2) Bank of America account statement for April and May 20XX respectively. Both of which has an alleged payment and a total balance due. A copy of which is hereto attached as Exhibit "B.

3. Defendant mailed a Good Faith letter to Plaintiff's attorney XXXXXXX on May 10, 2011, requesting that Plaintiff sufficiently respond, as his objected response and submission of Bank of America account statement for April and May was incomplete and insufficient. A copy of which is hereto attached as Exhibit "C."

4. On May 22nd 2011, defendant received a response to good faith letter from Plaintiff’s attorney dated May 17th 2011 stating that his response was sufficient and any motion to preclude these documents will be objected. A copy hereto attached as Exhibit “D”

Respectively, CCP. CODE § 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."

CONCLUSION

Defendant has made good faith efforts to remind the Plaintiff of his responsibilities to answer Demand of Particular, and as of this date, Plaintiff has not sufficiently provide itemized charges or documents to complete request and has adamantly stated that he will objects any motion to preclude these documents. Plaintiff's complaint is based on an open book account and facts that they allegedly possess. Defendant has repeatedly requested these documents and proofs of facts, but has been denied.

Respectfully submitted,

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You don't have enough time to file your motion to be heard on June 14. Under CCP 1005, you must schedule a date so as to give the opposing party 16 Court days notice. And, if you are going to serve by mail, you must add an additional 5 calendar days. I know it is confusing, but that is the rule. See CCP 1005(B): CA Codes (ccp:1003-1008)

So, you will have to cancel the current hearing date and get another one from the court when the motion is ready. I think the motion needs a bit more work but I won't be able to help out till later this week.

Edited by calawyer

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The motion times is very confusing especially if you have court holidays like today, then those dont count. court days are weekdays. So for instance if you were to file the motion tomorrow then you would want 16 court days(plus 5 for mailing) So June 28th would be the very earliest but you want to have some time to submit a reply so you add 8 days(reply due 5 days before hearing) July 6th so you see what you have to do.

any hints for the motion will be helpful. and when it is filed and sucessful we should adopt it as a CIC good thing.

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Thanks Calawyer ... will reschedule for late june or early july and hopefully this will give me as much time for them to comply prior to the conference at the end of July.

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What would be the correct procedure to file next, if plaintiff's response to BOP is insufficient or lacks information such as a signed contract between the defendant and OC? Is it proper to file an informal letter asking for these documents or would a Motion to Compel via the courts be proper fitting?

Thank you in advance.

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Thanks to everyone who has been helping out on this case. BIG THANKS to CAlawyer. Will post sample of Motion to compel BOP soon, hopefully tomorrow or Friday.

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