1The topic of this issue of the newsletter is preparing and serving a demand for a bill of particulars in California civil

litigation. A plaintiff who sues on an account is not required to set forth in the complaint the items of account. See Code of Civil Procedure 454. Therefore, it is not appropriate for the defendant to demur to the complaint on the ground of uncertainty. However, on written demand by the defendant, the plaintiff is required to furnish a copy of the account on which the complaint is based or be precluded from giving evidence thereof. See Code of Civil Procedure 454. This procedure, known as a bill of particulars, thus forces the plaintiff to itemize the total sum upon which the complaint is based. A demand for a bill of particulars is a procedure outside the Discovery Act, but it does serve a discovery purpose: It enables defendants who have been sued generally on an account (certain actions in contract or quasi-contract) to force plaintiff to itemize the account on which the complaint is based. Demanding a bill of particulars is a little used procedure today. Yet it remains a very useful tool for the defendant in an action on an account. Kaneko Ford Design v. Citipark, Inc., (1988) 202 Cal. App. 3d 1220, 1225, (reciting fact that the demand was made and complied with.) Perhaps a reason for its declining use is that attorneys simply fail to recognize that, in the appropriate cases, a demand for a bill of particulars can be very useful in forcing plaintiff to provide all of the documentation supporting their claim This is particularly true when plaintiff is an assignee of a finance or credit card company and thus may not have all of the documentation. I have personally seen at least two instances where creditors dismissed cases when they could not respond to the bill of particulars. With the repeated sale and transfer of delinquent accounts, failing to utilize the demand for the bill of particulars is a critical error. 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 days. And if the original complaint or cross-complaint was verified the bill of particulars must also be verified. If, after furnishing the itemization, plaintiff finds that it was incomplete or incorrect, plaintiff must seek leave of court (by noticed motion) 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 deficient. 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. If 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. The bill of particulars furnished by the plaintiff is treated as an amplification of the pleadings. As such, it has the effect of a pleading. Consequently, at 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. Kawasho Internat., U.S.A. Inc. v. Lakewood Pipe Service, Inc., (1983) 152 Cal. App. 3d 785, 790. These include actions for: (1) money had and received-Firpo v. Pacific Mut. Life Ins. Co., (1926) 80 Cal. App. 122, 125; (2) money lent or paid-Moya v. Northrup, (1970) 10 Cal. App. 3d 276, 280; (3) services and material-Jensen v. Dorr, (1911) 159 Cal. 742, 746-747; (4) goods sold and delivered-Ben-Hur Mfg. Co. v. Empire Factors, (1960) 181 Cal. App. 2d 123, 131, and (5) quantum meruit-Caruso v. Snap-Tite, Inc., (1969) 275 Cal. App. 2d 211, 214-215. 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. 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. The demand for bill of particulars procedure dates back to early common law. When plaintiff sued on a common count, the pleadings gave no specifics as to the nature of the claim whether contract, i.e., quasi-contract, etc. Therefore, courts allowed a demand for bill of particulars to enable defendant to discover what was being claimed and to prepare for trial. 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) answers 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. Therefore, it is not an alternative to depositions and interrogatories in certain cases. However, in the right type of case it can be a very useful tool. If you enjoy this newsletter, tell others about it. They can subscribe by visiting the following link: http://www.legaldocspro.net/newsletter.htm Have a great week and thanks for being a subscriber. Yours Truly, Stan Burman

The author of this newsletter, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995. The author's website: http://www.legaldocspro.net View numerous sample documents sold by the author: http://www.scribd.com/legaldocspro Reply to this e-mail for more information on a package that contains over 75 sample documents currently selling for only $250.00. That is around $3.50 per sample document! Copyright 2012 Stan Burman. All rights reserved. DISCLAIMER: Please note that the author of this newsletter, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this newsletter is NOT intended to constitute legal advice. These materials and information contained in this newsletter have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this newsletter is not intended to create, and receipt does not constitute, any business relationship between the sender and receiver. Subscribers and any other readers should not act upon this information without seeking professional counsel.