BOP / Motion to Preclude

[Whathat]

I filed a BOP and it's now past 30 days and have not heard back. Can anyone please guide me as to the next few steps? I believe a request to confer and motion to preclude? Can you give me guidance and also links to the paperwork.

Thanks so much!

[racecar]

NOTICE OF MOTION AND MOTION TO COMPEL BILL OF PARTICULARS

NOTICE OF MOTION AND MOTION TO COMPEL BILL OF PARTICULARS

NAME

Address

San Bernardino, CA 91755

Defendant, In Pro Per

SUPERIOR COURT OF CALIFORNIA,

COUNTY OF SAN BERNARDINO

111 North Hill Street, San Bernardino, CA 91755

Branch – Civil Limited

XXXXXXXXX,

Plaintiff,

vs.

XXXXXXXXX,

Defendant,

Case No.:

NOTICE OF MOTION AND MOTION

TO COMPEL BILL OF PARTICULARS;

MEMORANDUM OF POINTS &

AUTHORITIES; DECLARATION

of XXXXXXXX IN SUPPORT OF

MOTION TO COMPEL FURTHER

RESPONSE TO BILL OF PARTICULARS

DATE: July X, 2012

TIME: 8:30 am

DEPT: 77

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on XXXX, 2012 at 8:30 a.m. in Department 77 of the above-entitled Court located at 111 North Hill Street, Los Angeles, California, Defendant will move, and hereby does move, for an Order compelling Plaintiff to respond fully to Defendant’s Bill of Particulars or, in the alternative, to be precluded from offering any such evidence at the trial of this matter. The motion is made pursuant to Code of Civil Procedure section 454 on the ground that Plaintiff has refused to respond to Defendant’s demand for a Bill of Particulars and good cause exists for the relief requested in this motion.

This motion is based on this Notice of Motion, the Memorandum of Points and Authorities, the Declaration of XXXXXXXXX filed herewith, all of the papers and pleadings on file in this action and such other evidence and argument as shall be adduced at or before the hearing hereof.

DATED: April 23, 2012 ___Signature_____________

Name, In Pro Per

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

On October 12, 2011, plaintiff filed a complaint in this matter. The complaint alleges that defendant owes plaintiff the sum of $XXX.XX pursuant to an agreement between defendant and Capital One Bank (USA) NA. No such agreement is attached to the complaint. The complaint sets forth no facts supporting the amount claimed to be owing.

For this reason, on March 13, 2012, defendant served Via Certified Mail RRR, a request for Bill of Particulars on plaintiff. Plaintiff’s response was wholly inadequate. No contract has been produced. Nor has plaintiff produced all account statements justifying the amount claimed to be owed in the complaint. Defendant therefore asks that this Court order plaintiff to supplement its Bill of Particulars producing a complete accounting, a copy of the contract referred to in the complaint and a copy of any agreement assigning this claim to plaintiff. In the alternative, defendant asks that the Court enter an order precluding plaintiff from offering any such evidence at the trial of this matter.

II. ARGUMENT

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 all such 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."

Here, defendant served a request for a Bill of Particulars on March 13, 2012 pursuant to CCP 454. Declaration of XXXXX in Support of Motion for Further Bill Of Particulars paragraph 1. Defendant asked for a bill of particulars setting forth the items and details of the account on which the cause of action for goods sold and delivered of plaintiff’s complaint is based, including the date of each item or transaction, a description of services, materials or goods supplied or other considerations rendered, the price or charge made for each such item or transaction; and all payments or credits that have been made to the account. A true copy of the mailing declaration and Demand of Particular is attached hereto as Exhibit "A."

Plaintiff’s response was wholly deficient. Plaintiff responded to Defendants demand for Bill of Particulars by contending that a Bill of particulars is innapplicable to plaintiffs cause of action. A true copy plaintiff’s response is hereto attached as Exhibit "B.” It did not provide contract, itemized details of the account on which the cause of action for goods sold and delivered including the date of each item or transaction, a description of services, materials or goods supplied or other considerations rendered; and the price or charge made for each such item or transaction. Defendants good faith effort to meet and confer to avoid the necessity of bringing this motion were futile.

On March 29, 2012, Defendant sent to Plaintiffs attorney, Mark D. Walsh, a second request for Bill of Particulars, Via Certified Mail RRR. A true copy of my March 29, 2012 letter is attached as Exhibit "C."

On April 2, 2012, Plaintiff responded to Defendants demand for Bill of Particulars by claiming Plaintiff has not yet completed its discovery and/or investigation as to what other amounts plaintiff may be entitled to in accordance with the law and/or the parties’ agreement. As such, plaintiff reserves the right to amend this response at any point prior to and at the trial. A true copy of plaintiff’s response is hereto attached as Exhibit “D”.

On April 13, 2012, Defendant sent to Plaintiffs attorney, Mark D. Walsh, a letter Via Certified Mail RRR, attempting to meet and confer in good faith. A true copy of my letter is hereto attached as Exhibit “E”.

On April 17, 2012, Defendant sent to Plaintiffs attorney, Mark D. Walsh, a second letter, Via Certified Mail RRR, attempting to meet and confer in good faith. A true copy of my letter is hereto attached as Exhibit “F”.

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. The Court should require plaintiff to do so immediately.

III CONCLUSION

Plaintiff’s response to defendant’s Bill of Particulars is inadequate. The Court should require plaintiff to supplement its response immediately and produce all statements pertaining to this account from inception showing all payments made and charges to the account at issue. In addition, plaintiff should produce the contract referred to in the complaint and any agreement assigning the claims at issue to the plaintiff. 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 23, 2012XXXXXXXXX

In Pro Per

DECLARATION OF XXXXXXXXX IN SUPPORT OF MOTION TO COMPEL

FURTHER RESPONSE TO BILL OF PARTICULARS

I, XXXXXXXXXX declare as follows:

I am the defendant in the above-entitled proceeding. I have personal knowledge of all the facts contained herein, and if called to testify, could and would testify competently thereto.

1. Defendant served his Demand for Bill of Particulars Via Certified Mail RRR to Plaintiff’s attorney, Mark D. Walsh, on March 13, 2012. A true copy of the mailing declaration and Demand of Particular is attached hereto as Exhibit "A."

2. On March 20, 2012, defendant received Plaintiff’s objection to Demand for Bill of Particulars, claiming that a Bill of Particulars may be served on the plaintiff only in an action on an account. 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 after a demand thereof in writing, a copy of the account, or be precluded from giving evidence thereof…”A bill of Particulars is not appropriates in an action on account stated, because an account stated is deemed to merge the various items on which the earlier accounts were based: i.e., there is nothing left to itemize. Plaintiffs complaint alleges breach of contract and account stated as causes of action. As such it is plaintiff’s position Bill of particulars is inapplicable to plaintiff’s cause of action. A true copy plaintiff’s response is hereto attached as Exhibit "B.”

3. On March 29, 2012, Defendant sent a letter, Via Certified Mail RRR, to Plaintiff’s attorney Mark D. Walsh, observing that plaintiff’s response was incomplete and insufficient and requesting that Plaintiff provide a supplemental response. A true copy of my March 29, 2012 letter is attached as Exhibit "C."

4. On April 2, 2012, defendant received Plaintiff’s response to Bill of Particulars and One (1) Capital One Bank (USA) NA Statement for April 2012. No further documents were produced. Plaintiff responded by letter claiming that plaintiff has not yet completed its discovery and/or investigation as to what other amounts plaintiff may be entitled to in accordance with the law and/or parties’ agreement. As such, plaintiff reserves the right to amend this response at any point prior to and at trial. A true copy of plaintiff’s response is hereto attached as Exhibit “D”.

On April 13, 2012, Defendant sent to Plaintiffs attorney, Mark D. Walsh, a letter Via Certified Mail RRR, attempting to meet and confer in good faith. A true copy of my letter is hereto attached as Exhibit “E”.

On April 17, 2012, Defendant sent to Plaintiffs attorney, Mark D. Walsh, a second letter attempting to meet and confer in good faith. A true copy of my letter is hereto attached as Exhibit “F”.

I declare under penalty of perjury that the foregoing is true and correct.

Executed this 23rd day of April, 2012 at San Bernardino, California.

[racecar]

http://www.courts.ca.gov/documents/pos030.pdfproof of service

Dear___

I write to meet and confer about plaintiff's insufficient responses to [Defendant's First Request For Production of Documents]. For your convenience, I set forth below each request, plaintiff's response, and the reason a further response must be provided. Unless plaintiff agrees in writing to supplement each response and grants defendant an extension of time to move to compel, defendant will be forced to file a motion to compel further responses.

Request No. 1:

All documents constituting or relating to the agreeement referred to in plaintiff's complaint.

Plaintiff's Response to Request No. 1:

Defendant should have it.

Reason Why Further Response Should be Compelled:

This request is relevant as evidence by the fact that plaintiff saw fit to allege its existence in its 1 page complaint. Plaintiff's objection has no merit. Plaintiff must supplement its response to this request by agreeing to produce all responsive documents. Plaintiff must further produce all responsive documents in its possession, custody or control. If plaintiff does not have any such documents, it should comply with Code of Civil procedure section 2031.230 and state that the document "has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in

the possession, custody, or control of the responding party. The

statement shall set forth the name and address of any natural person

or organization known or believed by that party to have possession,

custody, or control of that item or category of item."

Please respond by [insert date 2 weeks from date you send letter] agreeing to supplement plaintiff's responses as set forth above. Please also confirm that defendant may have an extension of time to move to compel these initial responses.

Edited August 21, 2012 by racecar

[helpme]

I filed a BOP and it's now past 30 days and have not heard back. Can anyone please guide me as to the next few steps? I believe a request to confer and motion to preclude? Can you give me guidance and also links to the paperwork.

Thanks so much!

You must send a meet and confer before requesting a motion to compel BOP. Can't preclude until you compel first.

In your letter state the following:

This letter is to inform you that Plaintiff's refusal to comply with CCP 454 is without merit. Since the complaint was framed in the form of common counts the Defendant is entitled to demand a Bill of Particulars. [state all you causes of actions here]

Furthermore, the 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/her defenses. As such, Defendant feels the Plaintiff and his Attorney on record had ample time to gather the necessary documents entitled to the Defendant.

However, in good faith, Defendant will allow 5 days from the date of this letter to comply, at which time if Plaintiff fails to provide what is entitled to the Defendant under section 454, Defendant will move the Court for an order to compel further bill containing the information to which the Defendant is entitled.

I look forward to your cooperation in this matter.

Send this on letter size and cmrrr.

Then if after the 5 days and no response, reserve a motion hearing, make sure you give yourself at least 30 days out (which includes time to prep motion, time to give notice to other side, time for them to reply to your motion and time for you to reply to their opposition).

Hope this helps..

[rte]

There was another poster here who sent a BOP but did not file a motion to compel or preclude. Then, at trial, he asked the judge to preclude evidence that had not been produced in response to the BOP. The judge granted preclusion in his case.

I recently brought up this issue during a hearing for my motion(s) to compel further responses to discovery. I pointed out that the "terms" they produced had not been produced in response to a BOP and should be precluded. The judge said I would have to make a motion at trial, and that a discovery hearing was not the right place to bring it up.

So could this indicate that one doesn't have to file a motion to compel in order to obtain preclusion? Just wondering. Litigation can be quite complicated.

[helpme]

There was another poster here who sent a BOP but did not file a motion to compel or preclude. Then, at trial, he asked the judge to preclude evidence that had not been produced in response to the BOP. The judge granted preclusion in his case.

I recently brought up this issue during a hearing for my motion(s) to compel further responses to discovery. I pointed out that the "terms" they produced had not been produced in response to a BOP and should be precluded. The judge said I would have to make a motion at trial, and that a discovery hearing was not the right place to bring it up.

So could this indicate that one doesn't have to file a motion to compel in order to obtain preclusion? Just wondering. Litigation can be quite complicated.

Hi rte,

Yes your reasoning is sound. I stuck to my guns when it came to the BOP and my case was dismissed because of it. I'm not saying that everyone should go the route I took. When I first started out reading the things on this forum I realized that BOP can be a powerful tool if used correctly.

Currently, I'm helping a relative and he stuck to his guns got a motion to compel BOP and now submitting a preclusion order all before his first cmc hearing. He's trying to knock out as much as he can before trial if it even gets that far.

It really depends on your strategy. Some have waited until trial without doing any motions to compel until the trial then they do a mil.

Hope this helps

[BrunoTheJDBkiller]

These various motions to compel (all states have them) are designed for different kinds of cases. If party X has a document that will help you win your case, then you go after it full bore. In these cases involving credit cards, posters constantly pursue creditors to produce documents that will defeat the poster in court. Makes NO sense. Like the old saying, be careful what you wish for, you just might get it. Precluding at trial is much easier. I've seen cases where they tried to introduce stuff that was asked for two years prior to trial; in every case, it was disallowed.

[rte]

Especially regarding how to use the BOP, and how to file motions to compel and motions to preclude. I really appreciate all the experience and info that comes up in this forum. Thanks all!

[1stStep]

If you're using a BOP, you always want to preclude... never go for compelling production of anything.

[Whathat]

These various motions to compel (all states have them) are designed for different kinds of cases. If party X has a document that will help you win your case, then you go after it full bore. In these cases involving credit cards, posters constantly pursue creditors to produce documents that will defeat the poster in court. Makes NO sense. Like the old saying, be careful what you wish for, you just might get it. Precluding at trial is much easier. I've seen cases where they tried to introduce stuff that was asked for two years prior to trial; in every case, it was disallowed.

You make some very good points. However:

1. Very often they do not have any serious documentation. It behooves me to find out ahead of time exactly what they have and what they don't so that I can plan my defense accordingly. By filing a BOP I force the issue and thereby know exactly what cards they are holding.

2. The reality is that if the CC company or JDB has the documents you are requesting they will use them against you in court. If they don't have them -- it is in your best interest to know about it ahead of time so that you can plan accordingly. I highly doubt that a BOP and motion will compel them to find documents that they would otherwise not try to find and use against you.

3. When you mention "precluding at trial" I'm assuming you're referring to relying on discovery to preclude anything not previously provided to the defendant. It seems that a BOP is a more forceful tool in accomplishing the same objective. We are trying to avoid any last-minute hat tricks that the CC or DJB will try to do.

I am curiously looking at the options available if I filed a BOP but did not file a Motion to Preclude -- it seems that judges accept that as well. Regardless, I cannot see how a BOP request and subsequent motion to preclude can be detrimental to a case -- if anything it can force clarity which is to the defendants advantage.

Would love to hear what others think.

Edited August 23, 2012 by Whathat

[BrunoTheJDBkiller]

When you mention "precluding at trial" I'm assuming you're referring to relying on discovery to preclude anything not previously provided to the defendant.

Right, maybe I should have said object at trial, altho the result should be the same. As I recall, there is another form, CCP96 or 98, in which you request the plaintiff to divulge everything he intends to use at trial. That one seems to be cut and dried, anything not on the list is "outta here" I should think. CALawyer will know better than I would.