Motion to Compel Hearing - Next Week

[Scientific]

I have my motion to compel Bill of Particulars next week...has anyone been through this hearing before? What can I expect?

I plan to bring the civil procedure language with me along with the notice of motion, should I bring anything else...case law?

Thanks peeps!

[calawyer]

I have my motion to compel Bill of Particulars next week...has anyone been through this hearing before? What can I expect?

I plan to bring the civil procedure language with me along with the notice of motion, should I bring anything else...case law?

Thanks peeps!

Did you receive an opposition brief from plaintiff?

[rikkivs]

In our case we attended the case management conference and the judge conducted it in a perfunctory fashion and didn't give my husband time to speak. So when the judge was ready to end it, my husband piped up and told the judge that he felt that his defense was prejudiced because he demanded a verified BoP and it had not been provided up to the CMC (120 days out from date of service of process). The judges' clerk wrote some cryptic code on this green form that looked like this: @BOP. And that was it! We called the clerk later on and she said that was the judges way of DEMANDING that plaintiff pony up the goods asap. Turns out the court brought its own motion to compel a BoP. By showing up and being honest, you likely can do the same. I know some judges are more sticklers to procedures than others, but the judge also has discretion over how he or she runs their court. And if you pipe up and say something, when appropriate, the judge can always act accordingly. Best if luck to you.

[Scientific]

I did receive the plaintiffs opposition to the motion, here's a quick summary:

Plaintiff is suing for account stated, money lent and unjust enrichment.

Plaintiff has send 5 months worth of statements ranging 2 years, including the final charge-off balance.

Defendant is asking for many more documents than are required in a response to a bill of particulars under common count causes of action. (I stated the causes of action in my motion as breach of written contract, money had and received, account stated and quantum meruit...will this affect the motion to compel?)

Plaintiff states account stated is not subject to BOP (agreed)

Plaintiff states although claims for money lend and unjust enrichment are subject to BOP, all documentation required in response are those that provide reasonable notice of the claims asserted in the complaint. Case law of Pleasant v Samuels (1896..wtf?)

Plaintiff states original and supplemental responses to the BOP easily satisfy this minimal standard.

Summary of Plaintiff: Plaintiff has gone above and beyond requirements necessary for BOP with what they've provided: 5 months of statements including charge off amount, terms and conditions, bill of sale and assignment.

Sooo, am I screwed because I messed up the motion by stating the wrong causes of action or can I work around that?

[rikkivs]

From what I gather you put in breach of contract when they were claiming common counts and unjust enrichment right? You'll be alright. But they are so lazy they went to 1896 for a case? How absurd. Their BoP MUST show itemization of the account plain and simple. It's sad how they try to run over pro se litigants with this stuff. Just sad. Here is a link on that case from 1896 which just pretty much repeats that a demand for a copy of the account was proper, were I you I'd use language from that case against them;)

Edited August 25, 2011 by rikkivs

[Scientific]

Thanks for the link rikkivs!

It specifically states:

It was not necessary to state when the plaintiff paid, laid out, expended, loaned, or advanced to and for the defendant the moneys sued for, or when defendant became indebted to plaintiff therefor, or when defendant requested plaintiff to make such payments, expenditures, loans, or advancements. Nor was It necessary to set forth the items of the account. The statute expressly provides that the items of an account need not be set forth in a pleading, but a bill of particulars must be furnished on demand. Code Civ. Proc. § 454. If, therefore, the defendant desired more particular information as to the account, he should have resorted to the remedy provided for by the statute, and not to a demurrer.

LOL! To me it says that if the defendant wanted this information, it should have sent a Demand of Particulars!

Edited August 25, 2011 by Scientific

[rikkivs]

Yes! That is why I provided that link so you could see that it fortifies YOUR position and not the plaintiffs! It is unbelievable how much they like to lie to pro se litigants and try to confuse us with 'legalese'. But thanks to these forums the legalese can be interpreted AND used against the plaintiffs every now and again;)

[calawyer]

Thanks for the link rikkivs!

It specifically states:

It was not necessary to state when the plaintiff paid, laid out, expended, loaned, or advanced to and for the defendant the moneys sued for, or when defendant became indebted to plaintiff therefor, or when defendant requested plaintiff to make such payments, expenditures, loans, or advancements. Nor was It necessary to set forth the items of the account. The statute expressly provides that the items of an account need not be set forth in a pleading, but a bill of particulars must be furnished on demand. Code Civ. Proc. § 454. If, therefore, the defendant desired more particular information as to the account, he should have resorted to the remedy provided for by the statute, and not to a demurrer.

LOL! To me it says that if the defendant wanted this information, it should have sent a Demand of Particulars!

Always nice to use someone's own case against them.

Another thought:

CCP 116.222 is a fabulous provision that applies to small claims actions:

116.222. If the action is to enforce the payment of a debt, the

statement of calculation of liability shall separately state the

original debt, each payment credited to the debt, each fee and charge

added to the debt, each payment credited against those fees and

charges, all other debits or charges to the account, and an

explanation of the nature of those fees, charges, debits, and all

other credits to the debt, by source and amount.

seems to me an argument can be made along the lines of"look what the legislature has required plaintiff to show in a SMALL CLAIMS case. It is obviously relevant and must be provided here too." If the plaintiff claims you are asking for too much detail, the argument should go absolutely nowhere.

[Scientific]

Always nice to use someone's own case against them.

Another thought:

CCP 116.222 is a fabulous provision that applies to small claims actions:

116.222. If the action is to enforce the payment of a debt, the

statement of calculation of liability shall separately state the

original debt, each payment credited to the debt, each fee and charge

added to the debt, each payment credited against those fees and

charges, all other debits or charges to the account, and an

explanation of the nature of those fees, charges, debits, and all

other credits to the debt, by source and amount.

seems to me an argument can be made along the lines of"look what the legislature has required plaintiff to show in a SMALL CLAIMS case. It is obviously relevant and must be provided here too." If the plaintiff claims you are asking for too much detail, the argument should go absolutely nowhere.

As always, you're awesome calawyer! I'll be sure to bring this information with me to the MTC next week!

[Scientific]

Does anyone know where I can find case law information for this case:

Burton v. Santa Barbara Nat’l Bank (1966) 247 Cal.App. 2d 427, 433

A quick google search didn't turn up anything..

[rikkivs]

Does anyone know where I can find case law information for this case:

Burton v. Santa Barbara Nat’l Bank (1966) 247 Cal.App. 2d 427, 433

A quick google search didn't turn up anything..

How odd!

[Scientific]

I actually found information through google books soon after posting this..very good information here!!

[rikkivs]

You're the greatest.

[Scientific]

[5] Nor is imposition of the penalty considered to be mandatory in cases in which a bill of particulars is furnished though wholly defective in form and useless for the purpose sought. Defendant's remedy is a noticed motion for a further account and bill of particulars. (Code Civ. Proc., ? 454.) Thereafter if no supplement or amendment to the bill is forthcoming, defendant must make his motion to exclude the evidence, or he waives the defects of the bill and cannot later at the trial make such motion. (Union Lumber Co. v. Morgan, 162 Cal. 722, 725 [124 P. 228]; Ames v. Bell, 5 Cal.App. 1, 4 [89 P. 619]; Hart v. Spect, 62 Cal. 187, 190; Storm & Butts v. Lipscomb, 117 Cal.App. 6, 21 [3 P.2d 567]; Conner v. Hutchinson, 17 Cal. 279, 282; Glogau v. Hagan, 107 Cal.App.2d 313, 321 [237 P.2d 329].)

Sounds to me a motion to compel is needed before motion to exclude although CCP 454 language is mandatory in its terms will be exacted for Plaintiffs failure to comply--plaintiff must deliver the account "or be precluded from giving evidence thereof."

Glad I'm on the right track!

[calawyer]

[5] Nor is imposition of the penalty considered to be mandatory in cases in which a bill of particulars is furnished though wholly defective in form and useless for the purpose sought. Defendant's remedy is a noticed motion for a further account and bill of particulars. (Code Civ. Proc., ? 454.) Thereafter if no supplement or amendment to the bill is forthcoming, defendant must make his motion to exclude the evidence, or he waives the defects of the bill and cannot later at the trial make such motion. (Union Lumber Co. v. Morgan, 162 Cal. 722, 725 [124 P. 228]; Ames v. Bell, 5 Cal.App. 1, 4 [89 P. 619]; Hart v. Spect, 62 Cal. 187, 190; Storm & Butts v. Lipscomb, 117 Cal.App. 6, 21 [3 P.2d 567]; Conner v. Hutchinson, 17 Cal. 279, 282; Glogau v. Hagan, 107 Cal.App.2d 313, 321 [237 P.2d 329].)

Sounds to me a motion to compel is needed before motion to exclude although CCP 454 language is mandatory in its terms will be exacted for Plaintiffs failure to comply--plaintiff must deliver the account "or be precluded from giving evidence thereof."

Glad I'm on the right track!

That is why you frame the motion in the alternative. Order a supplemental BOP or, in the alternative, preclude. You do this for several reasons. Maybe you are close to trial and plaintiff has just refused to comply with the code. Maybe the plaintiff shows up at the hearing and says, "This is all we have. There is nothing more to produce." In either case, I think the Judge would be permitted to issue an order excluding any further evidence.

[Scientific]

Thanks again calawyer, and as you suspected through PM, it's been moved to a different department. Just checked the status and it shows as:

This motion has been miscalendared. It is not truly a discovery motion and should have been set in department X. Continued to September 5, 2011 at 9:00 a.m in department X. The parties should also note that this department and department X strongly encourage the parties to resolve disputes such as this over a bill of particulars without court intervention by talking to each other.

Don't particularly like that they're already looking down upon this filing

[Seadragon]

LexisNexis® Custom Solution: California Courts Research Tool

That should keep you busy

Edited August 28, 2011 by Seadragon
fixing link

[Scientific]

http://www.lexisnexis/clients/CAcourts

That should keep you busy

Thanks seadragon! Looks like the website is down at the moment...is there anything in particular I should look for? I have gone through hundreds of cases through the alameda county court website, but it's very cumbersome to say the least!

[Seadragon]

focus search function for debt.

It is a good website

[lheart]

There was a typo in the link.

LexisNexis® Custom Solution: California Courts Research Tool

[Seadragon]

My bad y'all.