A demand for a bill of particulars in California is the topic of this blog post.
The law in California states that it is not necessary for a plaintiff who sues on an account to include the items of any account in their complaint. California law also states that if the defendant serves a written demand on the plaintiff they are required to furnish a copy of the account on which the complaint is based or be precluded from giving evidence thereof.
The demand for a bill of particulars procedure dates back to the days of early common law when plaintiffs who sued on a common count gave no specifics in their pleading as to the nature of the claim such as whether it was contract, quasi-contract, etc. For this reason, courts allowed a demand for bill of particulars to enable defendant to discover what was being claimed and to prepare for trial.
This procedure, known as a bill of particulars forces the plaintiff to itemize the total sum upon which the complaint is based.
The demand for a bill of particulars must be in writing, and the bill of particulars must be delivered to the requesting party within 10 (ten) days if personally served, fifteen (15) days if served by mail. And if the original complaint or cross-complaint was verified the bill of particulars must also be verified.
Law authorizing a demand for a bill of particulars in California.
Code of Civil Procedure § 454 states that,
“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.
If the pleading is verified the account must be verified by the affidavit of the party to the effect that he believes it to be true; or if the facts are within the personal knowledge of the agent or attorney for the party, or the party is not within the county where the attorney has his office or from some cause unable to make the affidavit, by the affidavit of the agent or attorney.”
Advantages of a demand for a bill of particulars in California.
A demand for a bill of particulars enables any defendant who has been sued on an account such as common counts or certain actions in contract or quasi-contract to force plaintiff to itemize the account on which the complaint is based. A demand for a bill of particulars is very useful in collection cases as it forces the plaintiff to itemize each and every charge on which the alleged balance is based.
Demanding a bill of particulars in California is not used as often nowadays. However it remains a powerful tool for the defendant in an action on an account. See Kaneko Ford Design v. Citipark, Inc., (1988) 202 Cal. App. 3d 1220, 1225, (reciting fact that the demand was made and complied with.)
If used in the appropriate situations, a demand for a bill of particulars can be an excellent tool for forcing the plaintiff to provide all of the documentation supporting their claim.
A demand for a bill of particulars in California is very powerful in situations where the plaintiff is an assignee of a finance or credit card company and may not have all of the documentation needed to serve a timely response.
Considering the fact that the current economy has led to an explosion resulting in the repeated sale and transfer of delinquent accounts, failing to utilize the demand for the bill of particulars is a critical error.
If, after furnishing the itemization, plaintiff finds that it was incomplete or incorrect, plaintiff must file a noticed motion with the court to amend the bill of particulars just as he or she would to amend a pleading. Many assignees of finance or credit card companies will respond by simply providing the last statement, a response which is clearly defective, and in those situations a defendant may file a noticed motion for a further bill of particulars.
If a plaintiff fails to respond to the demand for a bill of particulars, the court may bar plaintiff from introducing evidence at trial in support of the account claimed if the defendant makes a motion. In fact some Judges may allow this request to be made by a motion in limine at trial.
The bill of particulars furnished by the plaintiff is treated as an amplification of the pleadings and it is for this reason that it has the effect of a pleading. At the trial, plaintiff is limited to the items and amounts specified in his or her bill of particulars. No additional items can be shown. See Baroni v. Musick (1934) 3 Cal App. 2d 419, 421.
Apart from actions on a book account, demands for a bill of particulars arise most often in the context of common counts which include actions for: (1) money had and received; (2) money lent or paid; (3) services and material; (4) goods sold and delivered; and (5) quantum meruit.
However even though Code of Civil Procedure § 454 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.
An account stated is a new agreement by the parties which supersedes the original contract and account. Jones v. Wilton, (1938) 10 Cal. 2d 493, 498 .
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.
Although interrogatories and depositions can now be used for the same purpose, the bill of particulars remains an alternative procedure and it has certain advantages, as well in that,
(1) it is far easier and less costly to send out a simple demand for bill of particulars than it is to draft interrogatories or to prepare for and take depositions;
(2) responses to interrogatories or deposition questions can be used as evidence against the answering party at trial; but they are not conclusive (contradictory evidence is also admissible). On the other hand, a bill of particulars is conclusive as to the items and amounts claimed; i.e., no other evidence is admissible at trial, unless the court grants leave to amend the bill of particulars, and,
(3) since it is not an interrogatory, the demand does not count against the numerical limits on specially prepared interrogatories under the Discovery Act. Thus it is particularly useful in limited civil litigation where parties are strictly limited to 35 discovery requests pursuant to Code of Civil Procedure § 94.
The big disadvantage is that a bill of particulars is only available in actions on an account. For that reason it is not an alternative to depositions and interrogatories in certain cases.
Experienced civil litigation attorney in Corona, California.
An experienced litigation attorney can evaluate your situation and determine if serving a demand for a bill of particulars is appropriate given the unique circumstances of your case. Contact attorney Nathan Mubasher for a free consultation and evaluation of your case.
Schedule a free consultation today with attorney Nathan Mubasher.
Call (800) 691-2721 and let’s talk about your options.
CONTACT INFORMATION FOR NATHAN MUBASHER:
Law Offices of Nathan Mubasher
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Corona, CA 92882
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