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Sent BOP, Plaintiff's Counsel denied request claiming account stated, but had also sued me under breach of contract


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I got a response from Plaintiff's Counsel denying my BOP demand on the following grounds:

 

OBJECTION: A BIll of Particulars 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 (See Ahlbin v. Crescent Commercial Corp. (1950) 100 Cal.App.2d 646, 648). Accordingly, Plaintiff is not required to respond to Defendant's demand. (See Distenfano v Hall (1963) 218 Cal .App. 2d 657, 677).

 

OBJECTION: In addition, a bill of particulars is "not applicable to a contract or a promisory note which has an account for its consideration." (Distenfano v Hall (1963) 218 Cal.App. 2d 657, 677) And in cases which fit the aformentioned circumstances, "a demand for a bll of particulars [is] not proper and [the recipient] [is] justified in ignoring such demand" (Id. at 678). Accordingly, Plaintiff is not required to respond to Defendant's demand.

 

OBJECTION: A Bill of Particulars is not the proper method by which a "description of all services, materials or goods supplied, or other considerations rendered" is to be obtained. First of all, this request requires the creation of documentation and narrative answer - neither of which are appropriate in response to a Bill of Particulars. All that is required in a response to a Bill of Particulars are ther "items of an account" or a "copy of an account" as defined by Code of Civil Procedure 337 and 337a. There is no requirement for a "description" only "a copy of the account" (Code of Civil Procedure 454). The appropriate method for obtaining descriptions of the above is an interrogatory under Code of Civil Procedure 2030.010 et seq.

 

And then, he proceeds to say how he's essentially a nice guy, and even though he is not waving his objections, he sends me a copy of asupposed "agreement". Looks like a generic card agreement, and neither my name nor my signature are on it. Could have copied it from a brochure, as far as I am concerned...

 

 

But, then, he seems to be conveniently forgetting that one of the causes of actions in the lawsuit is a breach of contract...

And how do I put that fact in writing in a more eloquent way than "Hey Mr. Lawyer, your client sued me under breach of contract, too. Why are you omitting that in your response to my BOP?".

 

 

Thanks guys. Here is my original BOP demand:

 

 

 

TO PLAINTIFF GCFS, INC., a California Corporation AND THEIR ATTORNEYS OF RECORD:

 

DEMAND IS HEREBY MADE UPON YOU pursuant to Code of Civil Procedure § 454

to furnish to defendant, Lenny Lasagna, within ten days hereafter, 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 the services, materials or goods supplied, or other considerations rendered; and the price or charge for each such item or transaction.

 

Dated________________ By: __________________________

Lenny Lasagna, In Pro Per

 

 

 

 

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I hate to say it, but, personally I agree with the bottom feeders on a lot of this (however they are steering you wrong saying an interrogatory is how to get the info). We have had 2 recent examples of this, where the motion to compel BOP was lost, with these same arguments.

 

If it were mine; I would send them discovery; request for production of documents, and go for the goods that way.

 

Other than that; you can send a meet and confer letter, then a motion to compel/exclude. 

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 I hate to say it, but, personally I agree with the bottom feeders on a lot of this (however they are steering you wrong saying an interrogatory is how to get the info). We have had 2 recent examples of this, where the motion to compel BOP was lost, with these same arguments.

 

If it were mine; I would send them discovery; request for production of documents, and go for the goods that way.

 

Other than that; you can send a meet and confer letter, then a motion to compel/exclude. 

 

Thank Anon, as always. But, if me writing a meet & confer to them followed by a motion to compel BOP gets them to drop breach of contract and/or common counts from their complaint, it may be worth pursuing. Plus, I gotta keep their lawyer busy. If they want judgement, then Mr. Plaintiff's attorney is sure going to have to earn it. ::travolta::

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Thank Anon, as always. But, if me writing a meet & confer to them followed by a motion to compel BOP gets them to drop breach of contract and/or common counts from their complaint, it may be worth pursuing. Plus, I gotta keep their lawyer busy. If they want judgement, then Mr. Plaintiff's attorney is sure going to have to earn it. ::travolta::

You do need to keep the lawyer busy, If they drop one of the allegations; you are still in a lawsuit though. Discovery keeps them busy as well, and even with a proper response to the BOP, they still do not show that they have standing, which is the main thing defendant's attack. I did both, and at the same time (even though some don't like that) because it's easier for them to beat your mtc BOP if you are in discovery. I did not care because I was keeping the lawyer busier than he had ever been

 

I would send the m&c letter (while waiting for response; draft discovery), when you get m&c response (which will be further objection): send the discovery, while you are waiting for those objections: file the MTC BOP (when or if that motion is lost, the judge will say to get the evidence thru discovery) using that statement in suport of your motion; you then file the motion to compel discovery.

 

You cannot possibly keep the lawyer any busier than that, even if you lose the motion to BOP (which usually happens, you keep the lawyer busy objecting) and you have a motion to compel discovery right behind it.

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As far as the m&c letter: all you need is a simple one page letter with your name and case # and then explain that the response is insufficient, remind them of what the code says, and tell them to respond without objection in 10 days or you will file a MTC BOP.

ASTMedic or Seadragon probably has sample m&c letter if you need it.

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Yes, well, I got in the same urinating match with these bozos and here is the meet and confer I sent them.  You can downlaod it and edit as needed if you like.

 

I chose to wait until trial and put it in my MIL.  You know, yet another blatant deficiency in plaintiff’s case.  Anything to highlight their buffoonery!

 

rt

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Calawyer has an excellent M&C for just this response from the JDB lawyer. They are right on the point of BOP not applicable to account stated, however since they alleged Breach of Contract, they are dead wrong.

 

Where did you think most of the wording in my meet and confer came from...  ;-)

 

Gotta love Calawyer...

 

rt

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Where did you think most of the wording in my meet and confer came from...  ;-)

 

Gotta love Calawyer...

 

rt

Nice m&c letter. After reading more about the destefano case; I guess the BOP fits  better than I thought for breach of contract. I like the idea of just considering the objection a complete response, if they do not supplement it, instead of filing a motion to compel. That will save a lot of time and let you move on to discovery.

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  • 3 weeks later...

Yes, well, I got in the same urinating match with these bozos and here is the meet and confer I sent them.  You can downlaod it and edit as needed if you like.

 

I chose to wait until trial and put it in my MIL.  You know, yet another blatant deficiency in plaintiff’s case.  Anything to highlight their buffoonery!

 

rt

Can I use this sample, i have the same story

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I hate to say it, but, personally I agree with the bottom feeders on a lot of this (however they are steering you wrong saying an interrogatory is how to get the info). We have had 2 recent examples of this, where the motion to compel BOP was lost, with these same arguments.

Do you recall what the basis was regarding why a bill of particulars was not warranted for a breach of contract claim?

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Do you recall what the basis was regarding why a bill of particulars was not warranted for a breach of contract claim?

After reading the distenfano case closer I see how the BOP can apply to a breach of contract, but the jdb's always cite this case exclusively when a BOP is sent. There have been a few cases here, and a few others that I have heard of, where the judge ruled against the defendant when they tried to compel a further response to the BOP. I used to think the judge may have ruled correctly, now I don't. The point is; some judges will allow the distenfano case argument, and some won't. So, like much of the case, it depends on the judge. When the judges have ruled against the motion to compel BOP, they say that the information is obtainable thru discovery, and therefore the motion is denied. It depends how the judge feels about the bottom feeder and how anti debtor he / she happens to be (if at all). 

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I don't think you have time.

Pata: I also don't think you have a need. You have already received from them about the same amount of evidence I recieved a month after winning a motion to compel. When you send the ccp 96 they will have to ptoduce whatever they plan to use against you at trial. If it's not on the list it's inadmissible. Even if it is on the list it's probably inadmissible as well (if properly attacked).

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After reading the distenfano case closer I see how the BOP can apply to a breach of contract, but the jdb's always cite this case exclusively when a BOP is sent. There have been a few cases here, and a few others that I have heard of, where the judge ruled against the defendant when they tried to compel a further response to the BOP. I used to think the judge may have ruled correctly, now I don't. The point is; some judges will allow the detenfano case argument, and some won't. So, like much of the case, it depends on the judge. When the judges have ruled against the motion to compel BOP, they say that the information is obtainable thru discovery, and therefore the motion is denied. It depends how the judge feels about the bottom feeder and how anti debtor he / she happens to be (if at all). 

Ah, gotcha. Glad to hear there isn't something we've been overlooking!

 

But you're right, as always it comes down to the judge, and judges can (and often do) get things wrong. But that just means we have to step up our game and keep hammering the obvious truth: no reasonable reading of Distefano can include breach of contract, especially since a bill of particulars is meant to address the fact that you don't have to include the contract when pleading breach of contract!

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So here is the update:

 

I sent a Meet and Confer letter, which was a variation of the one that Rivertime used, but I've changed it just a little bit and gave them 10 days to respond and have mentioned filing a Motion to Compel Further BOP. So, 10+ days have passed, and, instead, I get a CMC form in the mail, which has the following checked:

 

"The party or parties have met and conferred with all parties on all subjects required by rule 3.724 of the California Rules of Court"

 

Now, I am not a lawyer, but this doesn't sound quite right. They have not called me or communicated with me in any fashion after I've sent my M&C letter. Or, does the act of me simply sending the M&C letter mean that we have met and conferred? Doesn't it take two to tango, though? Can I file an objection with the Court regarding this, or is it enough to note in my own CMC statement?

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First off do not talk with them on the phone! IF they respond it should be in writing. I just filed a motion to preclude as I am in the same position as you. I decided not to send a Meet and Confer as it actually isn't necessary for a BOP. If you would like to see my Motion to compel I can forward it to you, it does mention that distafano case isn't appropriate as well. It was partly from another Motion to Comel that I filed for another case, but it was drafted by the great Seadragon and is quite nice. Let me know if you would like to see it. Sounds like C A C H?

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So here is the update:

 

I sent a Meet and Confer letter, which was a variation of the one that Rivertime used, but I've changed it just a little bit and gave them 10 days to respond and have mentioned filing a Motion to Compel Further BOP. So, 10+ days have passed, and, instead, I get a CMC form in the mail, which has the following checked:

 

"The party or parties have met and conferred with all parties on all subjects required by rule 3.724 of the California Rules of Court"

 

Now, I am not a lawyer, but this doesn't sound quite right. They have not called me or communicated with me in any fashion after I've sent my M&C letter. Or, does the act of me simply sending the M&C letter mean that we have met and conferred? Doesn't it take two to tango, though? Can I file an objection with the Court regarding this, or is it enough to note in my own CMC statement?

No response to your M&C or response in the nature you recieved quoting rules of court regarding "Meet and Confer", simply is calling your bluff. You said you will file a motion and they are telling you fine, file it.

Next move is yours. Apparently based on the rule they have quoted there must be a CMC conference in the future, where each side informally with the judge updates where the case is. What maybe in dispute between the parties regarding discovery issues, can the issues be narrowed and the like.

So you need to decide if you are going to file the Motion to Preclude and invest the $40 dollar motion fee. (unless you qualify for fee waiver)....

Best of Luck

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I agree , I think you should wait till trial, I did 3 meet and confers about BOP but decided not to go with motion . I held it and did not do,  I waited to do them in with my ccp96 which they did not expect. They threw a packet together at the last minute and sent it to me and it arrived to me just on the nick of time , my motion killed them calawyer spent the whole night with me fixing and he made it great so they had no choice but to intimidate me at trial and dismiss in the end .

 

Please consider all the facts I regret not doing the motion when I saw what it did for helpme, but it still turned out ok.

 

Like astmedic told me and coltfan always says: It depends on your level of comfort , and level of danger you want to put yourself in  . I wanted to take a wild ride so I skipped the motion .

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"The party or parties have met and conferred with all parties on all subjects required by rule 3.724 of the California Rules of Court"

That is a bold face lie. It is litigating with unclean hands. And it is a "fraud upon the court", not to mention the fact that it never happened and rule 3.724 mandates that it does.

 

This is one of the reasons I say to try to get an affirmative defense or even a counter claim for unclean hands, and then you just keep track of them all, and you will have no problem proving the allegation.

 

Another thing I say a lot is to always use your opponents own weapons against them. It may look like something insignificant, but sometimes that can go far in the law. They knowingly filed a false statement to the court, so that is a fraud upon the court, and that is a big deal. So I would do something with it.

 

Edit: I am assuming they filed the cmc statement with the court and you have  a cmc hearing coming up. You do need to file a cmc statement 14 days before the hearing. You are supposed to speak to them on the phone  by 30 days before the cmc. There are times when you do have to speak to the lawyer, 

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Unclean hands is an affirmative defense which means it has to have occurred before the lawsuit was filed.  I'm not sure it can be applied to procedural actions that take place during the course of the suit.

Unclean hands is a Doctrine. It's actually the Doctrine of Clean Hands. It can be used as an affirmative defense, or it can also be used as a counterclaim (or both). By law all parties are to litigate with clean hands in all stages of any case. Since it  not only can be used as an affirmative defense, or  as a counterclaim,  and it is a doctrine,  it most certainly can be applied to a procedural action, or any other type of action for that matter, at anytime, in any case, and in any state. There is never a time (regardless of what you put in your answer) when your opponent is allowed to litigate with unclean hands.

 

Unless of course; people don't object to it, or are convinced otherwise.

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That is a bold face lie. It is litigating with unclean hands. And it is a "fraud upon the court", not to mention the fact that it never happened and rule 3.724 mandates that it does.

 

This is one of the reasons I say to try to get an affirmative defense or even a counter claim for unclean hands, and then you just keep track of them all, and you will have no problem proving the alegation.

 

Another thing I say a lot is to always use your opponents own weapons against them. It may look like something insignificant, but sometimes that can go far in the law. They knowingly filed a false statment to the court, so that is a fraud upon the court, and that is a big deal. So I would do something with it.

 

Edit: I am assuming they filed the cmc statement with the court and you have  a cmc hearing coming up. You do need to file a cmc statement 14 days before the hearing. You are supposed to speak to them on the phone  by 30 days before the cmc. There are times when you do have to speak to the lawyer, 

 

Unfortuntately, I didn't put unclean hands as one of my affirmative defenses, but, the way you describe it, if it is a doctrine, then I should be able to bring it up, regardless. I did put the Statute of Frauds as one of my affirmative defenses, but, as far as I understand it,  that's more contract-based, so I am not sure that it will help here. I've also added the "If allowed by this Court, the Defendant reserves the right to plead other affirmative defenses that may become available at the later time".

 

Now, it doesn't seem as if the CMC conf. has been scheduled. The CMC date/time, etc, have been left blank on Plaintiff's CM-110.  I haven't received anything from the Court yet, and I keep checking online records daily, and don't see anything filed to the effect of "CMC conference scheduled".  I think I'll call the Court tomorrow and find out when I can approximately expect a conference, considering that the Plaintiff has gotten the ball rolling on CMC stuff.

 

Also, another thing I noticed on their CMC that is that they put "unknown" next to the date for all the Form ROG's, special ROG's, request for admissions and request for production of documents. I have sent all these back to them within the 30-days (except for the special ROG's which they haven't sent to me yet), so I don't know why they put unknown date? Are they prepping a motion to deem facts and/or motion to compel?

 

Also, they're asking to push the trial way forward to October, to allow them to file an MSJ. I guess they can go for their MSJ, but this didn't seem to me like such an open-and-shut case that the MSJ on their end would be appropriate. 

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Unclean hands cannot be used as a counterclaim.  A counterclaim asserts a cause of action, and unclean hands is not a cause of action.

 

Indeed, unclean hands is an equitable defense, not a cause of action.   In re McKesson HBOC, Inc. Erisa Litig., 391 F.Supp.2d 812, 819, 852 (N.D.Cal.2005).

 

Also, the misconduct has been committed the attorney not by the plaintiff. 

 

"The [unclean hands] doctrine demands that a plaintiff act fairly in the matter for which he seeks a remedy. He must come into court with clean hands, and keep them clean, or he will be denied relief, regardless of the merits of his claim." (Kendall-Jackson Winery, Ltd. v. Superior Court (1999) 76 Cal.App.4th 970, 978, 90 Cal. Rptr.2d 743.)

 

Calawyer would know whether or not the attorney's action would qualify as "unclean hands".

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