A bill of particulars in California civil litigation is the topic of this blog post. 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.
Demand for a bill of particulars appears to be a little used procedure today. Yet it remains a viable 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 demand was made and complied with.)
Perhaps a reason for its declining use is that attorneys simply fail to 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 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.
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, 15 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 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. 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.
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 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 download a sample demand for a bill of particulars can see below.
The author of this article, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.
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Filed under: California civil litigation, California freelance paralegal Tagged: | Bill of particulars, California civil litigation, california discovery, California freelance paralegal, Common counts, Credit card litigation, Defendant in credit card litigation, Demand for bill of particulars