Threatened for sanctions if I file for Motion to Compel BOP

[xavi72]

I recently requested a BOP and as usual, just got two year's worth of statements for the alleged account.  I replied by sending a meet and confer letter letting the OC's attorney's know that they're reply was insufficient since I was still missing the information on how they came up with their good faith total amount in the complaint.  The original contract was not provided either and instead stated that the "customer agreement" they sent was good enough.

 

So in their response, they concluded that any demand for further response would be frivolous and if I brought a motion to compel , they would oppose it vigorously as well as request for sanctions.

 

This is a first and I'm not sure if this is an intimidation factor or if they really can request for sanctions.  All I'm asking is for them to show how they came up with the balance and to show any application/contract binding this alleged account to me.  Isn't this what I'm required to know?

[KentWA]

They can request anything they want, in this case if your BOP is proper they are not going to get sanctions. There is recent case law on BOP that can help you. CALawyer posted it not too long ago.
 

[shellieh98]

What counts are they suing you on? If any are open book, money had, money lent, breach of contract, I would file that motion to compel and in my motion I would also work opposing council's threat. But that is me, I don't take threats to well and will challenge their threat if threatened,

[Anon Amos]

Burton V. Santa Barbara National Bank For BOP case law.

I would file a motion to preclude evidence or in it's alternative to compel a further response to the BOP. Or send them discovery, request for production of documents.

I would not let them intimidate you about sanctions. Also there is a statute in the ccp somewhere in the discovery laws that say's if a party request sanctions but they are not awarded; at the request of the opposing party the sanctions requested can be awarded to them.

[xavi72]

What counts are they suing you on? If any are open book, money had, money lent, breach of contract, I would file that motion to compel and in my motion I would also work opposing council's threat. But that is me, I don't take threats to well and will challenge their threat if threatened,

 

Common counts are money lent, breach of written contract and account stated

[xavi72]

Burton V. Santa Barbara National Bank For BOP case law.

I would file a motion to preclude evidence or in it's alternative to compel a further response to the BOP. Or send them discovery, request for production of documents.

I would not let them intimidate you about sanctions. Also there is a statute in the ccp somewhere in the discovery laws that say's if a party request sanctions but they are not awarded; at the request of the opposing party the sanctions requested can be awarded to them.

 

Isn't Burton V. Santa Barbara N.B case law for plaintiff did not respond to a BOP request?  I'm really tempted to pull the trigger and file a motion to preclude evidence or in it's alternative to compel a further response to the BOP.  This is case was previously brought up before in a different lawsuit and it ended up being dismissed.  In the previous case, the OC's attorney only had the same statements that I"m again receiving from the different's OC's attorney.

[1stStep]

Common counts and money lent can be challenged with a BOP - they are trying to scare you because you have likely received all they got...

 

 

I say call their bluff and file the motion to compel

[xavi72]

Common counts and money lent can be challenged with a BOP - they are trying to scare you because you have likely received all they got...

 

 

I say call their bluff and file the motion to compel

This is what I'm thinking also....I compared the documents that were sent to me in my first case from a BOP request and they're the exact same ones this time around.  Those documents have been the only thing that has been produced in two lawsuits so far...

[BTO429]

If they claim account stated  BOP is not proper in CALI.

Even though the code authorizes a demand for a bill of particulars in an action “on an account,” it is not available in an action on an account stated. Distefano v. Hall, (1963) 218 Cal. App. 2d 657, 677

 

Any action on it is therefore based on only the final balance agreed on by the parties and not on the original individual items of account. Hallford v. Baird, (1938) 27 Cal. App. 2d 384, 398. Therefore, itemization of the account is not possible.

 

If they claim breech of contract BOP is appropriate:

If the information furnished is deemed too general or incomplete, the defendant may make a noticed motion for a further bill of particulars. Burton v. Santa Barbara Nat’l Bank (1966) 247 Cal.App. 2d 427, 433.

[1stStep]

Did they just sue on account stated, or was there other allegations in the complaint?

[xavi72]

Did they just sue on account stated, or was there other allegations in the complaint?

There were breach on contract and money lent as well

[Seadragon]

while sanctions would be egregious for a motion to preclude, I think that filing the motion is necessary because their other causes of action require an accounting. So you have to weigh the factors such as how has the court ruled in the past.

[Anon Amos]

Isn't Burton V. Santa Barbara N.B case law for plaintiff did not respond to a BOP request?  I'm really tempted to pull the trigger and file a motion to preclude evidence or in it's alternative to compel a further response to the BOP.  This is case was previously brought up before in a different lawsuit and it ended up being dismissed.  In the previous case, the OC's attorney only had the same statements that I"m again receiving from the different's OC's attorney.

Plaintiff first ignored the BOP request, but after ordered to compel gave an insufficient response and then was precluded from entering further evidence. You are well within your rights to file the motion.

For BOP you do not even need to send them a meet and confer letter; so the fact that you did is in your favor. If they threaten sanctions you almost have to file the motion just to send them the right message (in my opinion).

[Anon Amos]

while sanctions would be egregious for a motion to preclude, I think that filing the motion is necessary because their other causes of action require an accounting. So you have to weigh the factors such as how has the court ruled in the past.

My guess is that the OP would lose the motion to compel and then move on to discovery, but would not be sanctioned as requested by plaintiff.

[Seadragon]

I believe that The motion is fully not sanctionable if the purpose is to enforce statutory rights. The pleading of account stated to block the rendering of the accounting is just a JDB stalling to get the info. However if they have no authentication the court being empowered with discretion as to the motion can not really count it as frivolous. also I don't believe the authorities give sanctions like the discovery motions do.

 

I haven't heard where a defendant was sanctioned in the past, and believe that granting sanctions would ultimately be an abuse of discretion that makes the ruling appealeable.

[BTO429]

In order for them to prove frivolous they will have to prove that your request lacks merit and has no chance what so ever of succeeding, or intent merely to harass, delay or embarrass the opposition. In order to be found frivolous, the claim must have no arguable basis in law or fact.

[xavi72]

In order for them to prove frivolous they will have to prove that your request lacks merit and has no chance what so ever of succeeding, or intent merely to harass, delay or embarrass the opposition. In order to be found frivolous, the claim must have no arguable basis in law or fact.

 

So having stated this, will it be beneficial, in terms of reducing the likelihood of sanctions, to send a Meet and confer letter to the plaintiff indicating to them that my request doesn't lack merit and that that this information is necessary for me to prepare for trial or do I just move forward with a motion hearing?

[racecar]

 Bring on the Sanctions

 

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.

[Anon Amos]

So having stated this, will it be beneficial, in terms of reducing the likelihood of sanctions, to send a Meet and confer letter to the plaintiff indicating to them that my request doesn't lack merit and that that this information is necessary for me to prepare for trial or do I just move forward with a motion hearing?

I would just file the motion, sanctions (against you) would be extremely rare, if they ever did happen in this type of situation.

[xavi72]

So now I'm slapped with a Request for Admissions right after attorney's response to my further request of the BOP.  Once the discovery process starts, can I still request a motion for a BOP?.  I'm wondering if at this point, the judge will not grant to compel the BOP and instead ask me to initiate my own discovery (e.g. RFA, POD, etc.).

[Anon Amos]

So now I'm slapped with a Request for Admissions right after attorney's response to my further request of the BOP.  Once the discovery process starts, can I still request a motion for a BOP?.  I'm wondering if at this point, the judge will not grant to compel the BOP and instead ask me to initiate my own discovery (e.g. RFA, POD, etc.).

My guess is that 9 out of 10 judges would do exactly as you said in this post (although there are a couple here who have won the MTC BOP. If you are talking about a motion to compel a further response to the BOP (or in it's alternative to preclude evidence) you can file that at anytime (up until about 30 prior to trial).