Feedback and assistance needed, please!

[rte]

Hello everyone,

I would really appreciate some help from the smart, helpful and sympathetic members of this forum. I’m being sued by Target National Bank in California represented by Patenaude & Felix. The following presentation provides the information, including my actions or intended actions. As you might notice, I’ve shamelessly helped myself to the gems/ideas found in this forum, and right now I need inputs, corrections, insights, and the like. So here goes:

1. Received summons and complaint on January 9, 2012

- Action subject to Civil Code Section 1812.10

- Causes of action: (1) Common Counts; (2) Other – “Before commencement of this action, in those cases where recovery of costs is dependent on such notices, Plaintiff informed the defendant(s) in writing it intended to file this action and that this action could result in a judgment against defendant(s) that would include court costs and necessary disbursements allowed by CCP Section 1033((2).”

- Damages of $4,228.29

- Causes of action: (1) Claim that defendant became indebted to plaintiff within the last four years because an account was stated in writing by and between plaintiff and defendant in which it was agreed that defendant was indebted to plaintiff. (2) Claim that within the last four years --- other --- “This cause of action is based upon account number xxxxxxx for the sum by Which Defendant has been unjustly enriched by virtue of Defendant receiving monetary of other benefit, by Defendant knowingly requesting the funds at issue and/or accepting the benefits bestowed. It is inequitable for Defendant to retain said benefits without repaying Plaintiff the value thereof.”

- CC-2. $4,228.29 (due and unpaid etc)

- In Declaration of Venue, statement that action is not subject to California Civil Code section 2984.4 or California Code of Civil Procedure 395(

(IS THIS IMPORTANT, WHATEVER IT MEANS?)

(to be cont'd)

[rte]

2. Filed my General Denial and Bill of Particulars on February 10, 2012

GENERAL DENIAL

1. Plaintiff fails to state a claim upon which relief may be granted.

2. Plaintiff fails to state facts sufficient to constitute any cause of action against Defendant.

3. Plaintiff's claims are barred by the Statute of Limitations. CCP Section 337, 340.

4. Plaintiff failed to mitigate damages.

5. Plaintiff's claims are barred by unclean hands.

6. Plaintiff's claims are barred by waiver and/or estoppel.

7. Plaintiff's claims are barred by laches.

8. Defendant is entitled to set-off for payments already made.

9. Defendant expressly and specifically reserves the right to amend this answer to add, delete and/or modify defenses based upon legal theories, facts and circumstances which may or will be divulged through discovery and/or further legal analysis of Plaintiff's position in this litigation.

BILL OF PARTICULARS

DEMAND IS HEREBY MADE UPON YOU, pursuant to California Code of Civil Procedure section 454, to furnish to Defendant, within 10 days, a Bill of Particulars setting forth all items and details of the account on which the causes of action for account stated and quantum meruit/unjust enrichment of plaintiff’s complaint is based, including:

a. Copy of the instrument upon which the alleged account is based, i.e., contract.

b. The date of each transaction.

c. A description of the services, materials or goods supplied or other considerations rendered.

d. The price or charge made for each item.

e. All payments or credits that have been made to the account.

f. ITEMIZATION of the account from ZERO balance; including all debits and credits against the alleged account, including interest rates per transaction, dates of transactions.

g. Any modifications to terms and conditions over course of the account.

h. A copy of any contract from Target National Bank giving Patenaude & Felix the right to collect the alleged debt including any consideration paid therefore.

(to be cont'd)

Edited March 8, 2012 by rte

[rte]

3. Mailed meet-and-confer follow up letter on February 28, 2012

Dear Patenaude & Felix:

On February 9, 2012, Defendant sent to counsel a request for a bill of particulars pursuant to CCP 454. Per CCP 454, the recipient has 10 days to respond to such request. As of the date of this letter, no response to Defendant's bill of particulars has been received.

This letter serves as a warning that if the items Defendant requested are not provided within 10 days, Defendant shall ask for your evidence to be barred at trial.

As you are also quite aware, Defendant has the option to file a motion with the Court seeking an order to compel a response.

4. Received Response to BOP on March 5, 2012 with nothing provided, just objections

GENERAL OBJECTIONS: Defendant’s Bill of Particulars is inappropriate for Plaintiff Target’s Account Stated cause of action because an Account Stated cause of action is deemed to have merged the various items on which the earlier accounts are based, i.e., there is nothing left to itemize. Section 454 is not applicable to a contract or a promissory note which has an account for its consideration. See Ahlbin v. Crescent Commercial Corp. (1950) 100 Cal. App. 2d 646, 648; Auzerais v. Naglee, 74 Cal. 60. [15 (sic) p. 371. [ACTUALLY, PER SECTION 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. SO PLTF STILL HAS TO PROVIDE SOMETHING.] Accordingly, Defendant is strictly limited to Unjust Enrichment cause of action. Caruso v. Snap Tite, Inc., 275 Cal. App. 2d 211.

These responses are made solely for the purpose of and in relation to this action. Each answer is given subject to objections concerning competency, relevancy, materiality, propriety and inadmissibility, or if any statement contained herein were made by, a witness present and testifying in court. All objections and grounds therefore are reserved and may be imposed at the time of trial. [iS THERE SOMETHING I SHOULD WATCH OUT FOR HERE? I KNOW I HAVE TO DEVELOP MY DEFENSES.]

Plaintiff has not yet completed its investigation of the facts related to this action, and has not yet completed its preparation for trial. Consequently, the following Bill of Particulars are given without further prejudice to this answering party’s right to produce, at time of trial, subsequently discovered evidence relating to the proof of facts subsequently Discovered to be material. [sEE SECTION 454 ABOVE RE 10 DAY DEADLINE, OR “BE PRECLUDED FROM GIVING EVIDENCE THEREOF.”]

Except for the documents provided herein [NO DOCUMENTS WERE PROVIDED], no admission of any nature whatsoever is to be implied or inferred. The fact that any admission has been answered should not be taken as an admission or concession of the existence of any facts set forth or assumed by such admission, or that such response constitutes evidence of any fact thus set forth or assumed. All responses must be construed as given on the basis of present recollection. [iN OTHER WORDS, DON’T TAKE ANY RESPONSES AS TRUTH, SAITH THE PLAINTIFF.]

In general, objection is made to all admissions because literal compliance would require responses that are burdensome and oppressive. This responding party will provide those responses that are responsibly appropriate in an effort to comply with the proper obligations imposed upon them as part of the discovery in this action. [AS CALAWYER PUTS IT, THERE IS NOTHING BURDENSOME OR OPPRESSIVE ABOUT A REQUIREMENT PRESCRIBED BY LAW.]

RESPONSES:

1. The complaint is based on an quantum merit (sic), and an account stated and Defendant’s breach thereon in the principal amount of $4,228.29. 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. [iN OTHER WORDS, PLAINTIFF WILL TAKE ITS SWEET TIME TO PROVIDE ITS RESPONSE, EVEN AT TRIAL!]

2. The billing statements will demonstrate a course of conduct wherein Defendant repeatedly charged on a revolving charge account issued by Plaintiff Target National Bank Chase. [HOW DID CHASE GET IN HERE? PLTF DOES NOT KNOW WHO THEY ARE REPRESENTING!] Further, these statements will demonstrate Defendant’s continuous failure to pay the indebtedness incurred. [THEY SHOULD HAVE HAD THEIR BILLS READY TO PRODUCE, IF THEY REALLY HAD THEM IN THE FIRST PLACE. THEY’RE SUPPOSED TO REPRESENT AN OC.]

3. The billing statements will be provided to Defendant as soon as they become available. [i WONDER WHY THEY AREN’T AVAILABLE NOW?] To the extent that Plaintiff finds additional relevant documents, if any, after its initial production of documents, Plaintiff will supplement its response to this request. An undertaking to produce all responsive documents within Plaintiff’s possession, custody, or control does not constitute an admission that such documents exist. [iF THE DOCUMENTS DO NOT EXIST, THEN ON WHAT BASIS ARE THEY SUING? AND SECTION 454 REQUIRES PRODUCTION WITHIN 10 DAYS, OR THE EVIDENCE IS PRECLUDED.]

4. Plaintiff Target reserves the right to produce other evidence as it becomes available, including, but not limited to, records kept in the ordinary course of business. [sECTION 454 DOES NOT ALLOW THEM TO TAKE THEIR OWN SWEET TIME.]

[rte]

5. Preparing second meet-and-confer

On February 9, 2012, 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, plaintiff’s response mailed on March 1, 2012 is entirely deficient to the point of non-existence, as no evidence was provided.

As a preliminary matter, plaintiff’s objection to Defendant’s Bill of Particulars is not well taken. Plaintiff has alleged causes of action for Account Stated and Quantum Meruit. A Bill of Particulars is appropriate under this legal theory as plaintiff concedes in ultimately responding. Regarding CCP section 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 response served, without any evidence attached, is not sufficient. Plaintiff 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. There is nothing burdensome and oppressive about a procedure required by law.

Plaintiff is required by statute to provide the information within 10 days. Plaintiff’s statement that it has the “right to produce, at time of trial, subsequently discovered evidence relating to the proof of facts subsequently Discovered (sic) to be material” 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.”

Should Plaintiff seek to amend its response to the Bill of Particulars propounded by Defendant, plaintiff must seek leave of court (by noticed motion) to amend the bill of particulars just as plaintiff would to amend a pleading. ANY SOURCE FOR THIS?

Please serve a full response on or before March 17, 2012. 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.

Finally, Plaintiff is reminded to spell Defendant’s name correctly, as one word. Any further misspelling will be deemed to refer to a different person. [THEY SPELLED MY NAME WRONG, AND INCLUDED “CHASE” AFTER “TARGET NATIONAL BANK.” CAN I MAKE A CASE THAT THEY ARE HOPELESSLY CONFUSED?]

And I guess the next thing is to prepare a Motion to Compel or Exclude.

(Whew! Sorry for the long story, but I do need to get some feedback on whether I'm going the right direction or not. Thanks!)

[legaleagle]

The BOP is inappropriate for account stated. See the DeStefano case, posted here many times.

1. Plaintiff fails to state a claim upon which relief may be granted.

Wrong. Account stated is legit, altho prejudicial. All courts recognize it.

2. Plaintiff fails to state facts sufficient to constitute any cause of action against Defendant.

Wrong. Repetitive of above, also, they stated plenty of facts in the complaint. All that is required is that they put you on notice as to what they intend to prove. They did that.

3. Plaintiff's claims are barred by the Statute of Limitations. CCP Section 337, 340.

Prove this and you win your case.

4. Plaintiff failed to mitigate damages.

How? A defense must have supporting facts. You don't cite any. This one won't work anyway unless you have a really deep understanding of legal strategy. Even then, it's thin.

5. Plaintiff's claims are barred by unclean hands.

No chance whatsoever unless you can prove fraud, deliberate unfair trade practices, or illegal activity.

6. Plaintiff's claims are barred by waiver and/or estoppel.

Forget this one. What rights were waived? What possible grounds can estop them from debt collection?

7. Plaintiff's claims are barred by laches.

This is an equitable remedy. It does not apply in collections cases. Delete it.

8. Defendant is entitled to set-off for payments already made.

Setoff is the wrong term. That means you owe me, I owe you, our mutual debts are applied to any judgment. You are talking accord and satisfaction, but supposedly you received credit for your payments. You'd have to prove you didn't. By admitting to payments, you admitted to one of the elements of account stated. Don't do that. You might want to cite this case at some time, it will help.

Target National Bank v. Samanez, Case Nos. AR07-009777 and AR06-009418, 156 P.L.J. 76 (Allegheny Cty. C.P. December 26, 2007).

The law is clear that a cause of action based on an “account stated” is not proper when used to support a claim for a credit card debt. This theory of recovery of a credit card debt was roundly discredited and denied by Judge Wettick, Administrative Judge of the Allegheny County Court of Common Pleas in Target National Bank v. Samanez, et al., Case Nos. AR07-009777 and AR06-009418, 156 P.L.J. 76 (Allegheny Cty. C.P. December 26, 2007).

Judge Wettick’s well-reasoned opinion meticulously and thoroughly analyzed the case law discussing the “account stated” action and ultimately found it to be inapplicable to the types of consumer credit accounts at issue in this current case.

At its basics, “the law recognizes a lawsuit based on an account stated where the complaint describes discussions between the parties or other back and forth communications as to the amount that is due.” Target, 156 P.L.J. at 77.

However, it is only once the parties have reached a “meeting of the minds” and agreement as to the amount that will satisfy a debt that the account stated “constitutes a new and independent cause of action superseding any antecedent cause of action.” Id. Silence can be a tacit agreement to pay an amount, but “failure to object cannot be construed as assent to pay the amount set forth in the statement unless the creditor can plead facts in addition to the failure to object . . . which show an express or implied agreement to pay the amount set forth in the invoice.” Id. In such a case, the silent acceptance must be implied from the circumstances surrounding the account and the invoice. Silence can be acceptance where the debtor had a chance to meaningfully and reasonably review the account, but “something more than mere acquiescence by failing to take exception to a series of statements of account received in the mail is required to create an account stated.” Id., at 78, citing Pennsylvania Law Encyclopedia (2d), Contracts, §§ 512 and 513.

Judge Wettick summed up the case law and treatises by finding that “there cannot be an account stated without evidence showing an agreement (express or implied) that the defendant owes the amount set forth in the account.” Id.

However, Judge Wettick was also compelled to investigate the particularities of consumer credit transactions and statements sent by card issuers to cardholders. Judge Wettick refused to acknowledge the theory that a cardholder is legally estopped or prevented from requiring proof of the amounts claimed by a creditor if the cardholder did not object to or question the monthly statements. Id., at 78.

Relying on the United States Government Accountability Office’s September 2006 report on the credit card industry and his own experience, Judge Wettick found that as a general, practical matter, most cardholders have not read the whole cardholder agreement, let alone any amendments, and would be unable to understand them if they did in fact read them, as many of these agreements are written at a 13th- to 15th-grade reading comprehension level. Id., at 79.

As a result, a cardholder does not know the intricacies of the writings governing the accounts, the calculations upon which the interest rate or fee schedule is based, and therefore, is not in a position to meaningfully or reasonably challenge the amounts claimed to be due in the monthly statements.

In his conclusion, Judge Wettick held that, “f cardholders cannot be expected to know whether the information in the monthly statement accurately states what they owe, there cannot be an express or implied agreement that their silence means that they have agreed to the amount claimed is correct.” Id., at 80. In such a consumer credit case, there must be factual allegations that the cardholder agreed to pay the amount alleged to be due, and these factual allegations must be more than mere silence or the cardholder’s failure to object.“

Finally, Plaintiff is reminded to spell Defendant’s name correctly, as one word. Any further misspelling will be deemed to refer to a different person.

This goes nowhere and will make you look like a kook to the judge.

Plaintiff Target National Bank Chase. [HOW DID CHASE GET IN HERE? PLTF DOES NOT KNOW WHO THEY ARE REPRESENTING!]

This appears to be related to Target the retail store. They have an agreement with Chase concerning credit cards since 2008. Target National Bank keeps coming back to the department store. You'll have to unravel this.

[rte]

Thanks for the incisive critique, Legaleagle. The final part of the General Denial does state that "Defendant expressly and specifically reserves the right to amend this answer to add, delete and/or modify defenses based upon legal theories, facts and circumstances which may or will be divulged through discovery and/or further legal analysis of Plaintiff's position in this litigation." That's my way out for mistakes.

Should I file an amended answer?

Anyway, the Complaint has account stated and quantum meruit. I thought account stated is covered by section 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.”

I certainly will restudy what I've done.

[legaleagle]

I hate CA Law, I deal in straight up theory and defense. I cannot wade through all of CA's forms. As for an amended answer, this should be in your rules of procedure. We have different ways of doing it here, either by permission of the other side or by court order. CAlawyer will help you. We still need to unravel who this bank is.

[rte]

I appreciate the guidance. Now I have to read up some cases and CA case law and all that good stuff. This should be a busy weekend.

Best wishes to all!

[Seadragon]

LexisNexis® Custom Solution: California Courts Research Tool

from the california Caci jury instruction

373

. Common Count: Account Stated

[

Name of plaintiff] claims that [name of defendant] owes [him/her/it]

money on an account stated. To establish this claim, [

name of

plaintiff

] must prove all of the following:

1. That [

name of defendant] owed [name of plaintiff] money

from previous financial transactions;

2. That [

name of plaintiff] and [name of defendant], by words or

conduct, agreed that the amount stated in the account was

the correct amount owed to [

name of plaintiff];

3. That [

name of defendant], by words or conduct, promised to

pay the stated amount to [

name of plaintiff];

4. That [

name of defendant] has not paid [name of plaintiff]

[any/all] of the amount owed under this account; and

5. The amount of money [

name of defendant] owes [name of

plaintiff

].

New December 2005

Sources and Authority

• “The essential elements of an account stated are: (1) previous transactions

between the parties establishing the relationship of debtor and creditor;

(2) an agreement between the parties, express or implied, on the amount

due from the debtor to the creditor; (3) a promise by the debtor, express

or implied, to pay the amount due.” (

[Seadragon]

Zinn v. Fred R. Bright Co. (1969)

271 Cal.App.2d 597, 600 [76 Cal.Rptr. 663], internal citations omitted.)

• “The agreement of the parties necessary to establish an account stated

need not be express and frequently is implied from the circumstances. In

the usual situation, it comes about by the creditor rendering a statement

of the account to the debtor. If the debtor fails to object to the statement

within a reasonable time, the law implies his agreement that the account

is correct as rendered.” (

Zinn, supra, 271 Cal.App.2d at p. 600, internal

citations omitted.)

• “An account stated is an agreement, based on the prior transactions

between the parties, that the items of the account are true and that the

balance struck is due and owing from one party to another. When the

account is assented to, ‘ “it becomes a new contract. An action on it is

217

(Pub. 1283)

This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637,

www.lexisnexis.com/bookstore, for public and internal court use.

not founded upon the original items, but upon the balance agreed to by

the parties. . . .” Inquiry may not be had into those matters at all. It is

upon the new contract by and under which the parties have adjusted their

differences and reached an agreement.’ ” (

[Seadragon]

Gleason v. Klamer (1980) 103

Cal.App.3d 782, 786–787 [163 Cal.Rptr. 483], internal citations omitted.)

• “To be an account stated, ‘it must appear that at the time of the statement

an indebtedness from one party to the other existed, that a balance was

then struck and agreed to be the correct sum owing from the debtor to the

creditor, and that the debtor expressly or impliedly promised to pay to the

creditor the amount thus determined to be owing.’ The agreement

necessary to establish an account stated need not be express and is

frequently implied from the circumstances. When a statement is rendered

to a debtor and no reply is made in a reasonable time, the law implies an

agreement that the account is correct as rendered. Actions on accounts

stated frequently arise from a series of transactions which also constitute

an open book account. However, an account stated may be found in a

variety of commercial situations. The acknowledgement of a debt

consisting of a single item may form the basis of a stated account. The

key element in every context is agreement on the final balance due.”(

Maggio, Inc. v. Neal (1987) 196 Cal.App.3d 745, 752–753 [241 Cal.Rptr.883], internal citations omitted.)

• “An account stated need not be submitted by the creditor to the debtor. A

statement expressing the debtor’s assent and acknowledging the agreed

amount of the debt to the creditor equally establishes an account stated.”(Truestone, Inc. v. Simi West Industrial Park II (1984) 163 Cal.App.3d

715, 726 [209 Cal.Rptr. 757], internal citations omitted.)

• “ ‘The common count is a general pleading which seeks recovery of money without specifying the nature of the claim . . . . Because of the uninformative character of the complaint, it has been held that the typical answer, a general denial, is sufficient to raise almost any kind of defense, including some which ordinarily require special pleading.’ However, even where the plaintiff has pleaded in the form of a common count, the defendant must raise in the answer any new matter, that is, anything he or she relies on that is not put in issue by the plaintiff.” (Title Ins. Co. v.State Bd. of Equalization (1992) 4 Cal.4th 715, 731 [14 Cal.Rptr.2d 822, 842 P.2d 121], internal citations and footnote omitted.)

“The account stated may be attacked only by proof of ‘fraud, duress,

mistake, or other grounds cognizable in equity for the avoidance of an instrument.’ The defendant ‘will not be heard to answer when action is brought upon the account stated that the claim or demand was unjust, or

invalid.’ ” (Gleason, supra, 103 Cal.App.3d at p. 787, internal citations omitted.)

• “An account stated need not cover all the dealings or claims between the

parties. There may be a partial settlement and account stated as to some of the transactions.” (

Gleason, supra, 103 Cal.App.3d at p. 790, internal citation omitted.)

• “In the common law action of general assumpsit, it is customary to plead

an indebtedness using ‘common counts.’ In California, it has long been

settled the allegation of claims using common counts is good against

special or general demurrers. The only essential allegations of a common

count are ‘(1) the statement of indebtedness in a certain sum, (2) the

consideration, i.e., goods sold, work done, etc., and (3) nonpayment.’ ”

(Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460 [61 Cal.Rptr.2d 707], internal citations omitted.)

•

[Seadragon]

“A common count is not a specific cause of action, . . . rather, it is a

simplified form of pleading normally used to aver the existence of various

forms of monetary indebtedness, including that arising from an alleged

duty to make restitution under an assumpsit theory. When a common

count is used as an alternative way of seeking the same recovery demanded in a specific cause of action, and is based on the same facts, the common count is demurrable if the cause of action is demurrable.”(

McBride v. Boughton (2004) 123 Cal.App.4th 379, 394 [20 Cal.Rptr.3d 115], internal citations omitted.)

Secondary Sources

4 Witkin, California Procedure (4th ed. 1997) Pleading, § 515

1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §§ 972–973

1 California Forms of Pleading and Practice, Ch. 8,

Accounts Stated and Open Accounts , §§ 8.10, 8.40–8.46 (Matthew Bender)

1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 9,

Seeking or Opposing Quantum Meruit or Quantum Valebant Recovery in

Contract Actions, 9.02, 9.15, 9.32

Hope that helps you make a decision how to proceed

[rte]

At this point in time, I’ve already filed a General Denial and a Bill of Particulars. The other side has stated that because it’s account stated, they don’t need to itemize anything. My proposed second meet-and-confer points out that, per section 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.”

Target National Bank, through Patenaude & Felix, has not sent any evidence, not even a copy of the original agreement. So I’m thinking that I can insist on their producing it, otherwise, I would file a motion to compel. The court could rule that I can’t ask for such a copy, but that would be ruling against section 454.

There’s also the Pennsylvania case (Capital One Bank (USA) v. Clevenstine, (State of PA, Ct. Comm. Pleas.), 2008) where the court decided that “1.) An unsigned, outdated credit card agreement is insufficient to establish a claim; 2.) Credit card statements are in themselves sufficient to establish a demand amount; 3.) Silence does NOT equal acquiescence to an accounts stated simply because the consumer has not objected to a statement or series of statements; and, 4.) A CoA of account stated is inappropriate for a credit card action since it's unreasonable to expect a consumer debtor to be able to "understand the changing terms of a Customer Agreement such that he or she can object to any invoice received in a timely manner".

It seems that account stated is not that foolproof a reason for not sending in the evidence, and section 454 provides a protection against surprise at trial. That’s as far as my thinking process has covered. Whether it’s important to file an amended answer is another question.

Any insights are appreciated.

[1stStep]

Did they just sue on account stated?

Usually, they add allegations like breach of contract or money lent and received

[rte]

They also had quantum meruit/unjust enrichment. That's why I sent a BOP.

BTW, maybe I don't know how to use this board, but my latest reply doesn't show unless you follow the lines under Seadragon's posts. I'm behind the times. Maybe it's different if you "post reply" than if you post a "quick reply."

[rte]

Bump for feedback, please, and thanks!

[legaleagle]

Bump for who Target National Bank is and what this account is or was. We are not psychics. Psychotics maybe, but John Edward we ain't.

[rte]

I may not be understanding the question, but here goes. Target National Bank is supposed to be the OC, and Patenaude is their attorney. The account is supposed to be a credit card account.

Anyway, I appreciate all the replies. Thanks everyone.

[rte]

Hello,

It's me again. I've sent letters to TNB's lawyers about the insufficiency of their Response to my BOP. They actually provided nothing but objections and promises, so to speak. So I consulted again with legal aid and got a list of case law sources, which I've been reading. I've put together a motion to compel further response, based a lot on my research on this forum. So I'm wondering if I could get some feedback on my MTC.

I got a notice from the court today that the case management conference is scheduled for 6-1-12. That means I need to send a CMC statement. So I'd better file my MTC so I can list it on my CMCS.

It's getting scarey, of course. I've been following TNB cases on the court website, and this past week one defendant went to trial and got a judgment. She filed an Answer but there was no record of her having done anything else. Next week there's another trial, and I wonder what the outcome will be. Am I the only one fighting back? Well, all I've done is throw a lot of discovery at them.

Oh, TNB has been submitting CCP 98 declarations in lieu of live testimony, but the famous Adam Grim, the accused robo-signer. Striking down such affidavits is the next course I have to take.

Anyway, here's my motion to compel in the next post.

[rte]

ALERT CONSUMER

Anywhere Avenue

Anyplace, CA 94116

(xxx) xxx-xxxx

Defendant In Pro Per

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF XXXXXXXXXX

TARGET NATIONAL BANK,

Plaintiff,

v.

ALERT CONSUMER, et al.,

Defendant(s). Case No.: XXXXXXXXXXXX

(Limited Civil Case)

DISCOVERY

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSE TO BILL OF PARTICULARS

[C.C.P. §454]

Date: June 1, 2012

Time: 9:00 a.m.

Dept: 302

Trial Date: Not Set

Hearing Judge: Not Set

I. PRELIMINARY STATEMENT

Defendant, ALERT CONSUMER, requests this Court’s assistance regarding her Bill of Particulars in this matter. Specifically, Plaintiff TARGET NATIONAL BANK has failed to provide any evidence in response to Defendant’s Bill of Particulars.

As set forth below and in the accompanying declaration, Plaintiff’s refusal to provide evidence in response to Defendant’s discovery results in an unfair litigation advantage and prejudices Defendant.

//

//

Accordingly, Defendant respectfully requests the Court to issue an order compelling Plaintiff to comply with its statutory obligation to provide responses to Defendant’s Bill of Particulars, or in the alternative, to preclude such evidence at trial.

II. PROCEDURAL HISTORY

On December 29, 2011, Plaintiff filed its Complaint in this matter. The Complaint’s causes of action are account stated and unjust enrichment, framed in common counts. The Complaint alleges that Defendant owes Plaintiff the sum of $4228.29 pursuant to an alleged agreement between Defendant and Plaintiff TARGET NATIONAL BANK. No such agreement is attached to the complaint. The complaint sets forth no facts supporting the amount claimed to be owed.

On February 9, 2012 Defendant served a request for Bill of Particulars on Plaintiff (See Exhibit A), requesting the following: (1) a copy of the instrument upon which the alleged account is based, i.e., contract; (2) the date of each transaction; (2) a description of the services, materials or goods supplied or other considerations rendered; (4) the price or charge made for each item; (5) all payments or credits that have been made to the account; (6) an itemization of the account from zero balance; including all debits and credits against the alleged account, including interest rates per transaction, dates of transactions; (7) any modifications to terms and conditions over course of the account; (8) a copy of any contract from Plaintiff TARGET NATIONAL BANK giving Patenaude & Felix the right to collect the alleged debt including any consideration paid therefore.

Plaintiff submitted its Response to Defendant’s Request for Bill of Particulars (“Response”) (see Exhibit , with a proof of service dated February 27, 2012, in a mailing envelope postmarked March 1, 2012. Plaintiff provided no item of evidence whatsoever, but merely narrated its objections and claimed that it had not yet completed its discovery and/or investigation as to available evidence and as such, reserved the right to produce subsequently discovered evidence at time of trial. Nothing at all has been produced as of the date of this pleading.

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III. ARGUMENT

Plaintiff’s Response is wholly inadequate. Plaintiff claims that a Bill of Particulars is not applicable to an account stated, and cites Ahlbin v. Crescent Commercial Corp. (1950) 100 Cal. App. 2d 646, 648. Plaintiff likewise claims that Defendant is limited to unjust enrichment as a cause of action.

A. Plaintiff’s Burden of Proof

Plaintiff has launched litigation and as such must adhere to legal procedure as outlined in law. The Fair Credit Billing Act (15 USC 1501) states that creditor must bear the burden of proof and not transfer it to the debtor. Needs development

B. The Role of a Bill of Particulars

Plaintiff’s attempt to ward off the demand for a bill of particulars is not in keeping with California case law. In Banchero v. Coffis, 96 Cal. App. 2d 717 - Cal: Court of Appeal (1950), the court explains the function of a bill of particulars in amplifying pleadings and providing reasonable notice to the adverse party:

The close relation, if not the identity, of a bill of particulars to the pleadings in an action is shown in several cases. In Long Beach etc. Dist. v. Dodge, 135 Cal. 401, 407 [67 P. 499], the court said: "... while permitting pleadings to be condensed and simplified in respect to such matters, the code has provided against surprise, by requiring the plaintiff to furnish when demanded, in writing, a copy of the account, under the penalty of being precluded from giving evidence thereof ..." In the same case it is said in effect that to require a full and detailed statement in the pleading itself "would lead to an unnecessary prolixity in pleading, which it was intended to avoid by giving a remedy under section 454 ..." In Ames v. Bell, supra, 5 Cal.App. 1, 4, the court says: "The purpose of the above section [454] is to give the adverse party reasonable notice of the items constituting the claim which he is required to meet, so that he may prepare for trial. It is in the nature of an amplification of the pleading to which it relates, and is to be construed as a part of it for certain purposes. It has the effect of restricting the evidence and limiting the recovery to the matters and things set forth therein, provided proper objections are made, and the court's attention called to any material departure from it. When the court or judge orders a further account or bill of particulars, as the section provides may be done, the further or amended account is to be construed as an amended pleading for certain purposes." (Emphasis added.)

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C. Defendant’s Right to Obtain Evidence for Defense

Defendant’s right to a Bill of Particulars is stressed in Banchero v. Coffis. Noncompliance in this case leads to preclusion of evidence.

The situation thus presented was not the everyday case where the bill "delivered is too general, or is defective in any particular" and where it is common practice for the judge to order a further account. The paper delivered was no bill of particulars at all, and did not pretend to be. It amounted to a total and unqualified noncompliance with the demand. In such case the extreme penalty provided by the section, of precluding the giving of evidence to prove the claim, is applicable (Graham v. Harmon, 84 Cal. 181, 185 [23 P. 1097]; McCarthy v. Mt. Tecarte L. & W. Co., 110 Cal. 687 [43 P. 391]; Fisher v. Brotherton, 82 Cal.App. 532, 540 [255 P. 854], and McManus v. Larson, 122 Cal.App. 716 [10 P.2d 523]).”

It is also to Defendant’s disadvantage not to pursue a Bill of Particulars: The court in Banchero v. Coffis has this to say:

There are several cases in which bills of particulars have been supplied after the expiration of the statutory time where the demandant instead of acting promptly delayed until the time of trial and then moved to exclude evidence (e. g., McCarthy case, supra; Ames v. Bell, 5 Cal.App. 1, 4 [89 P. 619]). The courts in the exercise of their discretion have uniformly denied such eleventh-hour motions and have been upheld in so doing.”

Thus it behooves Defendant to pursue her Bill of Particulars with diligence in this case. Moreover, the same court also provides a very cogent reason, i.e., avoiding embarrassment at trial, for Defendant’s Bill of Particulars:

In the McCarthy case, supra, the court suggests "the reason which called the section [454] into existence" as follows: "In the simplification of pleadings it is designed to protect the adverse party from embarrassment upon the trial, by enabling him to demand and obtain in advance a detailed statement of the items charged against him.

Moreover, one of the principal purposes of civil discovery is to prevent surprise at trial and this is accomplished by giving greater assistance to parties in ascertaining the truth. As the Supreme Court stated in Berger v. United States, 295 U.S. 78 (1935):

“The general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense. Bennett v. United States, 227 U.S. 333, 338; Harrison v. United States, 200 Fed. 662, 673; United States v. Wills, 36 F. (2d) 855, 856-857. Cf. Hagner v. United States, 285 U.S. 427, 431-433.

D. Account Stated Issues

Code of Civil Procedure section 454 governs the use of a Bill of Particulars in California. Pursuant to this section, a Plaintiff need not detail all items of an account in the complaint. However, upon request, Plaintiff must provide the following information within 10 days or be precluded from giving evidence thereof at trial. “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.” [Cal. Code of Civ. Pro. § 454]

[rte]

However, Plaintiff misinterprets Code of Civil Procedure§454. Plaintiff’s claim that CCP §454 does not apply to an account stated ignores what the statute actually says and goes against the requirement that, upon request, a plaintiff must provide a copy of the account within ten days after a written demand, or be precluded from giving evidence thereof at trial. In Ahlbin v. Crescent, the court actually states:

In Coffee v. Williams, 103 Cal. 550, 556 [37 P. 504], it is said: "But the account, in order to constitute a contract, should appear to be something more than a mere memorandum; it should show upon its face that it was intended to be a final settlement up to date. And this should be expressed with clearness and certainty." In that case the court stated that a copy of the alleged stated account should have been furnished although it was not necessary to have furnished the original items of the open account upon which the alleged stated account was based.

Thus Plaintiff still needs to furnish a copy of the alleged stated account, since its Complaint based on an account stated implies that a valid obligation exists. “The existence of a valid obligation is necessary as the basis of an account stated.” Law of Contracts, Vol. 4, section 2523, William Herbert Page. Plaintiff must first establish a basis for its account stated cause of action.

A. Common Counts and Unjust Enrichment Issues

Plaintiff’s Complaint states a cause of action in common counts and Defendant is within her rights to demand a Bill of Particulars under C.C.P. §454, so as to be able to prepare an intelligent defense at trial. As stated by the court in Dobbins v. Hardister:

[8a] Since the complaint was framed in the form of common counts, defendant was entitled to demand a bill of particulars under section 454, requiring plaintiffs to furnish defendant with the details regarding the items charged against him. (See Pike v. Zadig, 171 Cal. 273, 276-277 [152 P. 923]; Salinas Valley Lumber Co. v. Magne-Silica Co., 159 Cal. 182, 186 [112 P. 1089]; Farwell v. Murray, 104 Cal. 464, 466 [38 P. 199]; and see Lewin v. Merck & Co., Inc., 209 Cal.App.2d 131, 133 [25 Cal.Rptr. 619].) As stated in Meredith v. Marks, 212 Cal.App.2d 265, 269 [27 Cal.Rptr. 737]: [9] "The rationale of the requirement of our code system of pleading that a bill of particulars be furnished upon demand in connection with litigation concerning accounts is that such a bill of particulars amplifies the pleadings to which it relates in the nature of a more specific allegation of the facts claimed to exist." [10] It has also been said that the purpose of a bill of particulars is to apprise the defendant of the details of the plaintiff's claim in order that the defendant may intelligently present his defenses. (Butler Bros. v. Connolly, 204 Cal.App.2d 22, 24 [22 Cal.Rptr. 175]; Gilmore v. Hill, 152 Cal.App.2d 881, 882-883 [313 P.2d 898].)

In DiStefano v. Hall, the court states that “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.)” As Plaintiff’s Complaint has a cause of action of unjust enrichment, Plaintiff’s objection to a Bill of Particulars is not applicable because a Bill of Particulars is proper under this cause of action.

I. CONCLUSION

The information requested in Defendant’s Bill of Particulars is the bare minimum that Plaintiff will need to prove its case at trial. Plaintiff should have had this information in its possession before filing suit. There is simply no reason that it should not be produced in response to a properly served Request for Bill of Particulars. Defendant’s efforts to avoid the necessity of bringing this motion were futile. (See Exhibits C & D.)

Since Plaintiff’s response to Defendant’s Bill of Particulars is deficient, the Court should require Plaintiff to supplement its response immediately and produce all items requested by Defendant, including but not limited to statements pertaining to this account from inception showing all payments made and charges to the account at issue, the contract referred to in the Complaint, any contract from Target National Bank giving Patenaude & Felix the right to collect the alleged debt including any consideration paid therefore, and any modifications to terms and conditions over course of the account. In the alternative, the Court should enter an order pursuant to Code of Civil Procedure section 454 precluding the Plaintiff from offering any such evidence at trial.

DATED: April __, 2012

ALERT CONSUMER

DEFENDANT IN PRO PER

[rte]

Good morning,

Can anybody chime in? I really need that "second pair of eyes."

Thanks!

[legaleagle]

You're cherry picking the decision, you'll get killed doing this. Here's the part you left out:

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.) It has been held, however, not to apply to an account stated (Auzerais v. Naglee, 74 Cal. 60 [15 P. 371]; Ahlbin v. Crescent Coml. Corp., 100 Cal.App.2d 646 [224 P.2d 131])

The good part is that you can ask for all of this in normal discovery. You won't get any of it, but that's good for you. You follow up with requests for admissions covering what they did not produce, and then a motion to preclude same.

[rte]

Thanks, Legaleagle, I appreciate your sharp-eyed comments, and have added the "cherry-picked" portion. I obviously don't want to get killed.

There's so much more info that I'm coming across, then TNB sent discovery today, and then there's the case management conference statement that needs to be submitted (CMC is on 6-1-12). Well, gotta work on the MTC first, and get it filed.

[Seadragon]

I see what you are doing for the slinging caselaw part but I didn't see where you asked the court what you want it to do.

and to up the ante you should make a notice to preserve all docuemts and electronic evidence.

The motion looks a little caselaw heavy and light on why the court should preclude the contract based common counts.

looks good solid research but R.N.C v. Tsegeletos would be a better fit for you.

good though.