Jump to content

Why Is It Advised to Send A Meet and Confer for a BoP?


Recommended Posts

A quick question please:

Why is it advised to send a meet and confer to a plaintiff for an insufficient response to a BoP when a response to the BoP is not required by the plaintiff if the action is for "Account Stated"? :confused:

Please forgive me if the answer is obvious, I'm just trying to get a handle on this whole legal maze.

Thanks,

rt

Link to comment
Share on other sites

Often the complaint says Account Stated and Breach of Contract. They must answer the BOP on the basis of Breach of Contract in that case. If I remember correctly the rules for BOP require meet and confer. If Account Stated is the only basis of the complaint, then sending a BOP is not proper.

Link to comment
Share on other sites

Okay, here's the deal:

The Plaintiff's complaint consists of 2 causes of action, Breach of Contract and Account Stated.

Plaintiff responded to my BoP stating "Objection: A BoP is not appropriate in an action alleging an "account stated" since the items upon which an account is based are deemed merged and there is nothing left to itemize."

Then they site (Ahlbin v. Crescent Commercial corp. (1950) 100 Cal.App2nd 646, 648)

This case deals with 3 different actions, 1 "Book Account" and 2 "Account Stated." In reading this case law, it clearly states in the third paragraph, at least it seems clear to me anyways, that the accounts that were "merged" were 2 "Account Stated" claims, not the 1st "Book Account."

What am I missing? If I have a bullet to use to get them to comply, I want to use it.

Here's the first three paragraphs:

Ahlbin v. Crescent Commercial corp.

Plaintiffs appeal from a judgment that they take nothing by reason of their amended complaint and awarding cross-complainants damages in the sum of $1,892.50.

Three causes of action are set up in the amended complaint, in the first of which it is alleged that defendants became indebted to plaintiffs upon a book account in the sum of $2,250 for money had and received, which sum defendants agreed in writing to pay to plaintiffs; that the demand for payment 647*647 was refused and the whole amount is owing and unpaid. In the second cause of action it is alleged that there was an account stated between the parties whereby it was determined that defendants were indebted to plaintiffs in the sum of $1,450, and in the third cause of action an account stated was alleged for the sum of $931.24.

Defendant answered the amended complaint and demanded a bill of particulars. Plaintiffs failed to furnish such a bill or to furnish a copy of the account sued upon. The trial court, for that reason, sustained objection to evidence offered in support of the account stated and rendered judgment that plaintiffs take nothing by reason of their amended complaint. In this connection plaintiffs contend that it was not necessary that they comply with the demand for a bill of particulars insofar as the second and third causes of action were concerned.

Again, I would appreciate any assistance in helping me understand this. Are they correct? Do they not need to answer the BoP base on this case law? I read it as they still need to answer, but I'm a real newbie!

Thanks again for all you folk do here, it really helps us not so aware Pro Se Defendants. :)

rt

Link to comment
Share on other sites

Okay, here's the deal:

The Plaintiff's complaint consists of 2 causes of action, Breach of Contract and Account Stated.

Plaintiff responded to my BoP stating "Objection: A BoP is not appropriate in an action alleging an "account stated" since the items upon which an account is based are deemed merged and there is nothing left to itemize."

Then they site (Ahlbin v. Crescent Commercial corp. (1950) 100 Cal.App2nd 646, 648)

This case deals with 3 different actions, 1 "Book Account" and 2 "Account Stated." In reading this case law, it clearly states in the third paragraph, at least it seems clear to me anyways, that the accounts that were "merged" were 2 "Account Stated" claims, not the 1st "Book Account."

What am I missing? If I have a bullet to use to get them to comply, I want to use it.

Here's the first three paragraphs:

Ahlbin v. Crescent Commercial corp.

Plaintiffs appeal from a judgment that they take nothing by reason of their amended complaint and awarding cross-complainants damages in the sum of $1,892.50.

Three causes of action are set up in the amended complaint, in the first of which it is alleged that defendants became indebted to plaintiffs upon a book account in the sum of $2,250 for money had and received, which sum defendants agreed in writing to pay to plaintiffs; that the demand for payment 647*647 was refused and the whole amount is owing and unpaid. In the second cause of action it is alleged that there was an account stated between the parties whereby it was determined that defendants were indebted to plaintiffs in the sum of $1,450, and in the third cause of action an account stated was alleged for the sum of $931.24.

Defendant answered the amended complaint and demanded a bill of particulars. Plaintiffs failed to furnish such a bill or to furnish a copy of the account sued upon. The trial court, for that reason, sustained objection to evidence offered in support of the account stated and rendered judgment that plaintiffs take nothing by reason of their amended complaint. In this connection plaintiffs contend that it was not necessary that they comply with the demand for a bill of particulars insofar as the second and third causes of action were concerned.

Again, I would appreciate any assistance in helping me understand this. Are they correct? Do they not need to answer the BoP base on this case law? I read it as they still need to answer, but I'm a real newbie!

Thanks again for all you folk do here, it really helps us not so aware Pro Se Defendants. :)

rt

My personal response would be to send them a letter stating that their objection is frivolous because a BoP is proper under their breach of contract claim, and they either need to provide an adequate response to the BoP or amend their complaint to remove breach of contract as a claim. I would then tell them that I was willing to meet and confer on the matter, but that I was firmly giving them 10 days to comply with CCP 454 or I'd file a motion to compel, or in the alternative, preclude.

This is a JDB that you are dealing with, correct?

Link to comment
Share on other sites

You always want to appear to be helpful and willing to work things out prior to asking the court to step in. I looks good if you need to file a motion to compel or some other reason, if you can attach a letter or request. It makes it appear you're doing what you can to keep from clogging the docket.

Notice I said appear. :twisted:

Link to comment
Share on other sites

You always want to appear to be helpful and willing to work things out prior to asking the court to step in. I looks good if you need to file a motion to compel or some other reason, if you can attach a letter or request. It makes it appear you're doing what you can to keep from clogging the docket.

Notice I said appear. :twisted:

Exactly. That's also why I'd tell them "In order to avoid forcing me to file a motion to compel or in the alternative preclude, you can either produce all of the documents required by CCP 454, or alternatively, if you wish to amend your complaint against me to remove the breach of contract claim, making your objection proper, I will not oppose you."

Whaddya call it when you have a JDB who is only using account stated? Failure to state a claim, that's what.

Link to comment
Share on other sites

My personal response would be to send them a letter stating that their objection is frivolous because a BoP is proper under their breach of contract claim, and they either need to provide an adequate response to the BoP or amend their complaint to remove breach of contract as a claim. I would then tell them that I was willing to meet and confer on the matter, but that I was firmly giving them 10 days to comply with CCP 454 or I'd file a motion to compel, or in the alternative, preclude.

This is a JDB that you are dealing with, correct?

Thank you for you input and advice. I just want to absolutely correct in my pushing back about the BoP. Being a Pro Se Defendant, I want to do all I can to not look like a complete lightweight. I guess I'm off to look for case law that speaks to NOT being able to "Merge" two different complaints (Breach of Contract and Account Stated) into the standing of one of the complaints. Following the Plaintiff's logic... Okay, they're merged, now they both fall under the rules of a Breach of Contract!

Yes, it is a JDB, actually son of JDB... :lol:

OC to JDB No. 1 to JDB No. 2. JDB No. 2 is the one who filed.

Thanks again,

rt

Link to comment
Share on other sites

You always want to appear to be helpful and willing to work things out prior to asking the court to step in. I looks good if you need to file a motion to compel or some other reason, if you can attach a letter or request. It makes it appear you're doing what you can to keep from clogging the docket.

Notice I said appear. :twisted:

Thank you Coltfan1972 for your help, I really don't want to appear like an Internet want a be lawyer to these guys so I REALLY appreciate all the help from everyone.

I totally get that! That's probably why the plaintiff included this in their response:

"HOWEVER, in the interest if mutual disclosure and dialog, the Plaintiff will produce documents which are not in response to such a demand, but comprise the related causes of action.

Accordingly, Responding Party herewith submits the following documents:

1. "Consumer Credit card Customer Agreement & Disclosure Statement Visa or Mastercard, is attached hereto and incorporated herein as Exhibit A."

- They included an illegible, generic CC agreement, different than the one they sent me with their discovery demands by the way.

2. "Account statements of the BIG BANK CREDIT CARD account ending in XXXX, are attached hereto and incorporated herein as Exhibit B."

- 12 months of statements say at the bottom "This Statement is a Facsimile - Not an original" and not validated

3. "Affidavit and Bill of Sale, signed by ELMER FUDD and MIKE DUMBARSS, attesting to BIG BANK sale and transfer of the ACCOUNT to JDB NO 1, LLC, is attached hereto as Exhibit C."

- Not validated

4. "Affidavit and Bill of Sale, signed by MIKE DUMBARSS, attesting to NO 1’S sale and transfer of the ACCOUNT to Plaintiff is attached hereto as Exhibit D."

- Not validated

5. "Account information transferred to JDB NO 2, INC. regarding the account referred to in Exhibit C and Exhibit D, is attached hereto as Exhibit E."

- Nothing is validated

This plaintiff response to the BoP is certainly not complete as outlined CCP 454, so I guess I need to go ahead and send the letter outlined by usagi555.

I'm thinking that since I have NOT yet sent them my discovery demands that they might think, I'll think, "they've already given me all they have so there's no reason for me to do discovery." Then they'll assault me at trial with other evidence... not gonna happen... LOL!

Please comment further... I really want to handle this right!

Thanks again,

rt

Edited by Rivertime
Link to comment
Share on other sites

Send a meet and confer regarding the different agreements - this can be made into an issue to avoid their MSJ.

I think you might be able to press them on the 12 months of statements...remember that a BOP is appropriate if they allege a breach of contract - which they did. I think you send a nice meet and confer - or you could just hit them with a motion to preclude.

At this point, nothing needs to validated or authenticated...it will be if they take this to trial.

Link to comment
Share on other sites

Just leave out the part about the two different counts and the possibility of amending their complaint. That's asking for it. Don't help them to do anything that will win their case. If they want to change the complaint, there is a procedure they must adhere to. Let them do it alone.

Link to comment
Share on other sites

Just leave out the part about the two different counts and the possibility of amending their complaint. That's asking for it. Don't help them to do anything that will win their case. If they want to change the complaint, there is a procedure they must adhere to. Let them do it alone.

You are right that it is probably not recommendable to do, but I would do it anyway just to be jerk. Since there are no prior transactions between your typical debtor and a JDB, I would argue that the cause of account stated fails. If actually heeded my suggestion, I'd be awfully tempted to MTD for failure to state a claim. If that failed, I'd still be hitting them with discovery anyway. It's just a mean streak in me, I guess.

Link to comment
Share on other sites

You are right that it is probably not recommendable to do, but I would do it anyway just to be jerk.

100% the exact reason, once I had the other side 100% nailed on lack of standing, I just shrugged and told the Judge I'd stipulate owing every dime alleged in the complaint.

I just had one small matter we needed to clear up at trial though, who do I owe? :twisted:

Link to comment
Share on other sites

100% the exact reason, once I had the other side 100% nailed on lack of standing, I just shrugged and told the Judge I'd stipulate owing every dime alleged in the complaint.

I just had one small matter we needed to clear up at trial though, who do I owe? :twisted:

What can I say? If they don't do it, well, they still won't be able to prove their breach of contract claim, and they will still try to fall back on their account stated claim. If they do it, you have just peeled some of the spaghetti off of the wall that they were hoping would stick. I imagine handing them a MTD based on their amended claim ASAP would piss them off. Besides, they still have to prove standing.

Link to comment
Share on other sites

Since there are no prior transactions between your typical debtor and a JDB, I would argue that the cause of account stated fails.

I used to think this too, until I found about 300 credit card cases on Google Scholar where JDBs successfully sued under account stated. There are ways to beat account stated, but this does not appear to be one of them. It's like the securitization argument. You should always approach an argument on solid legal ground. Otherwise you risk the judge thinking you really are a jerk or just being frivolous. A judge always appreciates a good, solid argument well grounded in law. He may rule against you, but he'll do it with a smile that says "well done, but no cigar today." That same judge may be the one you need when it really counts. If you have his respect for trying to do your work properly, you are that much farther ahead.

Link to comment
Share on other sites

I was researching for my Meet and Confer letter and I came across this piece of law that says, I think, that a BoP is not even appropriate for a Breach of Contract action.

PLEASE HELP! Calawyer, you want to chime in here???

I really appreciate everyones help. I just want to have them dead on and not fall prey to a JDB attorney that actually may have paid attention in law school.

Anyway, this came from Distenfano v. Hall (1963) 218 Cal.App. 2d 657, 677 and with a google scholar search, it appears just below section 677 which is listed on the left.

"In Ahlbin, it is stated that section 454 is not applicable to a contract or a promissory note which has an account for its consideration. It appears from the foregoing authorities that, at most, the requirement for a bill of particulars is restricted to actions based upon contracts seeking to recover "items of an account." In Kelly v. Hinkhouse, 108 Wash. 93 [183 P. 86], the appellate court was called upon to interpret a Washington statute whose language was similar to that of section 454. The Washington Supreme Court held that an action for damages for a breach of contract is not an action to recover "items of account" and that, accordingly, it was proper for the cross-complainant to ignore a demand for a bill of particulars."

So, I'm really confused here. Again, I just want to appear to be a Pro Se not to be messed with. All of you on here and your wins have emboldened me, I want to be able to do the same.

Plaintiff referred to both the Ahlbin and the Distenfano cases in their response to blowing off my BoP demand. I still need to serve Discovery on them so I guess I could get all the answers/evidence I need to diss-prove their case, but, if I can be a further, bona fide, pain in the neck to them, that's always a good thing. It's just that if I pursue a "Meet and Confer" and then a "Motion to Compel," I just don't want the Judge to say to me "hey, can't you read? Didn't you read the case law."

I really appreciate all the help. I just to be sure I can not only kick their backside, I would like to humiliate them as well.

Thanks again to all who help!

Link to comment
Share on other sites

That's a nice dodge, but you are not in Washington. The DeStefano case has been cited many times here, it is connected to account stated. If the BoP didn't apply as these guys are alleging, there would be no bill of particulars at all. I think they're bluffing. I will defer to CALawyer, but that's my humble opinion. JDB lawyers do this all the time, they think a pro se does not know the law and they will run a bluff. Kinda like playing poker against the Unabomber dude. It's all strategy. Judges don't interfere to save you, either.

Link to comment
Share on other sites

PLEASE HELP! Calawyer, you want to chime in here???

CCP 454 has no requirement that a party meet and confer prior to filing the motion. However, many judges are not familiar with BOPs. To them, it sounds like normal discovery. And each discovery device (ROGs, Doc demands, etc) has a requirement that you meet and confer before filing a motion. It will therefore make your judge happy that you did so even though it is not required. And, who knows, maybe the plaintiff will comply and you won’t have to file a motion. All to the good.

Now, for your response. Your plaintiff is wrong. In fact, you need look no further than the Distefano case itself. There, the court says at page 677:

Section 454 has received a fairly broad interpretation and has been construed to cover almost any kind of contract action for a money claim made up of more than one item. ( Long Beach etc. Dist. v. Dodge, 135 Cal. 401, 407 [67 P. 499]; 2 Witkin, Cal. Procedure, § 243, p. 1219.)

The court does say that a BOP is not required for an account stated claim and it did not require one in the case before it which was a negligence claim. But your plaintiff presumably asserted a breach of contract claim based upon a money claim with more than one item and it should respond to your BOP without objection.

Having said that, it looks like your plaintiff actually responded to your BOP. The only thing I would quibble over is that you were only given 12 months of statements. If that does not comprise the entire account, you may write them back, tell them that a BOP is appropriate for the breach of contract claim plaintiff alleged and say that only one year of statements are insufficient.

Finally, plaintiff does not need to “validate” any document. Pursuant to CCP 454, however, if the complaint is verified, the response to BOP should be verified as well.

Link to comment
Share on other sites

Okay, PLEASE review my meet and confer letter. Any and all critique, suggestions, and guidance is very much appreciated.

On XXX, Defendant sent to Plaintiff a request for a Bill of Particulars pursuant to CCP 454. Per CCP 454, the recipient has 10 days to respond to such request. On XXX (within time) Plaintiff responded to Defendant’s demand for Bill of Particulars by objecting to the appropriateness of the Bill of Particulars as it relates to actions alleging “breach of contract” and “account stated.” Although Plaintiff stated that “Plaintiff will produce documents which are not in response to such a demand,” and provided said documents, those documents furnished are inadequate as is required by CCP 454.

Since a Bill of Particulars is appropriate for actions alleging Breach of Contract, Defendant hereby requests a further accounting of the alleged account to include all statements showing date of each transaction, the price or charge made for each transaction, all payments or credits that have been made to the account, a detailed accounting of how plaintiff calculated the alleged amount owed and all other items as originally requested in Defendant’s Bill of Particulars dated XXXX. Plaintiff is granted 15 days from the date of this letter to fulfill this request.

Again, please offer opinions as I would like to send this off soon.

Once again a big THANK YOU to all those who are experts for your help, and the advise of those who have gone through it and prevailed, all the input helps!

rt

Edited by Rivertime
Link to comment
Share on other sites

  • 4 weeks later...
On XXX, Defendant sent to Plaintiff a request for a Bill of Particulars pursuant to CCP 454. Per CCP 454, the recipient has 10 days to respond to such request. On XXX (within time) Plaintiff responded to Defendant’s demand for Bill of Particulars by objecting to the appropriateness of the Bill of Particulars as it relates to actions alleging “breach of contract” and “account stated.” Although Plaintiff stated that “Plaintiff will produce documents which are not in response to such a demand,” and provided said documents, those documents furnished are inadequate as is required by CCP 454.

Since a Bill of Particulars is appropriate for actions alleging Breach of Contract, Defendant hereby requests a further accounting of the alleged account to include all statements showing date of each transaction, the price or charge made for each transaction, all payments or credits that have been made to the account, a detailed accounting of how plaintiff calculated the alleged amount owed and all other items as originally requested in Defendant’s Bill of Particulars dated XXXX. Plaintiff is granted 15 days from the date of this letter to fulfill this request.

It's probably too late to be of use to you now, but for others, here's how I would word your letter:

"On XXX, Defendant sent to Plaintiff a request for a Bill of Particulars pursuant to CCP 454. Per CCP 454, the recipient has 10 days to respond to such request. On XXX Defendant received Plaintiff's response. which was wholly inadequate as it did not comply with the requirements of CCP 454."

First of all, don't give your opponent anything. Your letter said, "On XXX (within time)..." Don't grant them that. Just say when it was received. Second, forget that they pissed and moan over your request, just mention they sent one and it wasn't in compliance with the law.

Your 2nd paragraph is fine, except I would give them 15 days, I'd give them a week. They already got their 10 days under CCP 454, don't give them more than 10 more to comply.

I hope either way your letter got the response you wanted.

Link to comment
Share on other sites

Okay, here's where its at. JDB#2 responded to my BoP meet and confer. I realize, as Calawyer pointed out, they basically did respond to it BUT they said they were supplying the docs in the interest of dialog and communication, not in response to my BoP request. Please tell me if you think my strategy is off here, but, I'm thinking if I can set it up so no evidence can be admitted for their breach of contract action, that would only leave them with account stated. Kind of like giving them a bloody nose before trial. :twisted:

Anyway, here's part of my meet and confer letter:

You may wish to review the case you reference of Distefano v. Hall. While Distefano does suggest that a Bill of Particulars may not be required for an account stated claim, the Court reached the opposite conclusion with respect to breach of contract: “Section 454 has received a fairly broad interpretation and has been construed to cover almost any kind of contract action for a money claim made up of more than one item.” 218 Cal. App. 2d 677. (Thanks Calawyer)

Here's what JDB#2 responded with:

A “bill of particulars” is based upon Code of Civil Procedure 454 and is designed to force a party to provide particulars when a “common count” is alleged. Distenfano v. Hall (1963) 218 Cal.App. 2d 657 clearly states that a bill of particulars is “not applicable to a contract or a promissory note which has an account for its consideration.” (id. at 677) It then goes on to say, because the counter claim of hall was based on a breach of contract, “a demand for a bill of particulars was not proper and Hall was justified in ignoring such demand.” (id. at 678) Please review the case again, as your conclusion does not reflect the actual result of the case.

I can't imagine this is correct? Should I pursue a Motion to Compel? Should I wait for trial and argue they can't introduce evidence because of their lack of response to the BoP Request? My head's gonna explode!

Help and guidance on this would be very much appreciated.

Thanks,

rt

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.