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Collection attorney objected to my demand for a bill of particulars. Is their objection valid?
Anonymous4 views3 answers
I sent the collection attorney a demand for a bill of particulars. The attorney responded with "Objection: The demand seeks documents outside the scope of CCP section 454. Without waiving the foregoing, Plaintiff produces: A copy of a statement which is within scope."
The BOP stated, in a nutshell: "BOP setting forth all items and details of the account on which the cause of action for money is lent or paid of Plaintiff's Complaint is based, to include: An agreement and/or contract of said account, date of each transaction on said account, the price or charge for each item, all payments or credits that have been made to the account, a detailed account of how Plaintiff calculated the amount owed, and any agreement assigned the account at issue to the Plaintiff and Plaintiff's attorney.
Is their objection valid based on this information? I can't afford an attorney until November 15, 2011. Please help.
I'm sorry I only have time to give you a couple resources for researching demands for bill of particulars. I suggest you visit your local public law library and ask the reference desk for two books: The Rutter Group Practice Guide "California Civil Procedure Before Trial" (the volume containing Chapter 8) and Matthew Bender "California Forms of Pleading and Practice (the volume containing Chapter 121. In TRG CPBT, read the sections starting at 8:1765 and in MB CFP&P read the sections starting at 121.26.
Have you been served the summons and complaint? When is your answer due? Have you filed your answer? Defendants usually send DBOP to assist them how to respond to the complaint.
I handle these cases on a regular basis and always serve a bill of particulars. It is cheap and an effective way to get discovery quickly within 10 days. I have seen this objection but I do not think it has much merit. Feel free to contact me further with any questions.
Yes, it does appear that this objection is valid. A BOP is essentially an itemization of the account. A BOP is not available in an action on an account stated. If the Complaint contained a cause of action for an account stated, then producing any information on this cause of action would not be required by a Demand for a BOP. Also, your demand for "any agreement assigning the acct at issue to the Plaintiff & Plaintiff's atty" would not be included in a BOP. You can request information on the cause of action for an account stated and for "any agreement assigning the acct at issue to the Plaintiff & Plaintiff's atty" in your other discovery (see links below). If the Complaint was verified then the BOP should have been verified.
At trial, a plaintiff is limited to the items and amounts stated in the BOP. So, if the plaintiff later discovers that it did not include everything in its BOP, it must seek leave of court to amend the BOP. Use what was itemized in the BOP to determine if you need more information on amounts, items, etc. that are included in the BOP. For example, if payments are missing, send a request for admission asking the plaintiff to admit to the payment and include Form Interrogatory No. 17.1 with the Request for Admission (see links below).
Below is a sample demand for particulars:
TO PLAINTIFF, _______________________ AND THEIR ATTORNEY OF RECORD:
DEMAND IS HEREBY MADE UPON YOU pursuant to Code of Civil Procedure § 454
to furnish to defendant _________________, within ten days hereafter, 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 the services, materials or goods supplied or other considerations rendered; and the price or charge made for each such item or transaction.
Dated________________ _______________________________________________
ANY DEFENDANT
