2d 657, 677.Īn account stated is a new agreement by the parties which supersedes the original contract and account.
Sample bill of particulars code#
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.
Common counts include (1) money had and received (2) money lent or paid (3) services and material (4) goods sold and delivered, and (5) quantum meruit. Lakewood Pipe Service, Inc., (1983) 152 Cal. 2d 419, 421.Īpart from actions on a book account, demands for a bill of particulars arise most often in the context of common counts. Consequently, at trial, plaintiff is limited to the items and amounts specified in his or her bill of particulars. As such, it has the effect of a pleading. The bill of particulars furnished by the plaintiff is treated as an "amplification" of the pleadings. If, after furnishing the itemization, plaintiff finds that it was incomplete or incorrect, plaintiff must seek leave of court by filing a noticed motion to amend the bill of particulars just as he or she would to amend a pleading. And if the original complaint or cross-complaint was verified the bill of particulars must also be verified. 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. I have personally seen at least two instances where creditors dismissed cases when they could not respond to the bill of particulars. One possible reason for its declining use is that some 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 such as a debt buyer that may not have all of the documentation. 3d 1220, 1225, (reciting fact that demand was made and complied with.) Yet it remains a viable tool for the defendant in an action on an account. Thus it is particularly useful in limited civil litigation where parties are strictly limited to a total of 35 discovery requests pursuant to Code of Civil Procedure § 94.Ī demand for a bill of particulars appears to be a little used procedure today. On the other hand, a bill of particulars is conclusive as to the items and amounts claimed, meaning that no other evidence is admissible at trial, unless the court grants leave to amend the bill of particulars.Īnd since it is not an interrogatory, the demand does not count against the numerical limits on specially prepared interrogatories under the Discovery Act.
Sample bill of particulars trial#
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.Īnswers to interrogatories or deposition questions can be used as evidence against the answering party at trial but they are not conclusive in that contradictory evidence is also admissible. 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. Therefore, courts allowed a "demand for bill of particulars" to enable defendant to discover what was being claimed and to prepare for trial. When plaintiff sued on a common count, the pleadings gave no specifics as to the nature of the claim such as whether it was on a contract, quasi-contract, etc.
This procedure dates back to early common law. 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. Therefore, it is not appropriate for the defendant to demur to the complaint on the ground of uncertainty.
A demand for a bill of particulars is a procedure outside the Discovery Act, but it serves a discovery purpose in that it allows 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.Ī plaintiff who sues on an account is not required to set forth in the complaint the items of account. A demand for a bill of particulars in California is authorized by Code of Civil Procedure section 454 and is an excellent tool for forcing a plaintiff to itemize the total sum upon which the complaint is based.
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