Demanding a bill of particulars in California is the topic of this blog post.
Demanding a bill of particulars in California is authorized by Code of Civil Procedure section 454.
A plaintiff in California who sues on an account is not required to set forth in the complaint the items of account so it is not appropriate for the defendant to demur to the complaint on the ground of uncertainty. However if the defendant serves a written demand for a bill of particulars, the plaintiff is required to furnish a copy of the account on which the complaint is based or be precluded from giving evidence thereof.
Demanding a bill of particulars is extremely important as it forces the plaintiff to itemize the total sum upon which the complaint is based.
A demand for a bill of particulars is not used as often as it should be, however in my opinion, it is an excellent tool in cases involving an action on an account. Kaneko Ford Design v. Citipark, Inc., (1988) 202 Cal. App. 3d 1220, 1225 (reciting fact that demand was made and complied with.)
Some attorneys and other legal professionals simply do not recognize that, in the appropriate action, a demand for a bill of particulars can be very useful in forcing plaintiff to provide all of the documentation supporting their claim. The fact that it does not count towards the so called “Rule of 35” is another huge advantage, particularly in limited civil cases which have a limit of 35 total discovery requests.
Demanding a bill of particulars is particularly useful in cases when the plaintiff is an assignee of a finance or credit card company and thus may not have all of the documentation. I have personally worked on two cases where creditors dismissed cases when they could not respond to the demand for a bill of particulars.
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 calendar days, 15 calendar days if the demand for a bill of particulars is served by mail. 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 a noticed motion to amend the bill of particulars just as he or she would to amend a pleading.
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.
Along with actions on a book account, demands for a bill of particulars arise most often in the context of common counts.
Common counts include actions for:
(1) money had and received.
(2) money lent or paid.
(3) services and material.
(4) goods sold and delivered.
(5) quantum meruit.
However 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.
If plaintiff delivers no 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.
Attorneys or parties in the State of California who wish to view or download a free sample demand for a bill of particulars created by the author can use the link shown below.
The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for sale.
*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit freeweeklylegalnewsletter.gr8.com/ for more information.
Follow the author on Twitter at: https://twitter.com/LegalDocsPro
Please note that the author of this blog post, 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 blog post is NOT intended to constitute legal advice.
The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.