As stated in the blog It’s Not a Discovery Device, But…, a Demand for Bill of Particulars is NOT a discovery device, but an extension of the complaint or a cross-complaint [complaint].  Unlike interrogatories and deposition testimony, a  Bill of Particulars is conclusive as to the items and amounts claimed and no other evidence is admissible at trial.    More importantly, if the court finds that any of the line items are deficient it can strike the entry and preclude plaintiff/cross-complainant [plaintiff] from proving the debt is owed.

A Motion for Further Bill of Particulars

According to Code of Civil Procedure §454, if the information in the Bill of Particulars is too general or incomplete, the defendant may make a noticed motion for a further bill.  See Weil and Brown Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2019) ¶8:1780.  However, defendant’s failure to bring such a motion is a waiver of their objection to the sufficiency of the information furnished describing the account.  Weil and Brown Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2019) ¶8:1781 citing Burton v. Santa Barbara National Bank (1966) 247 Cal. App. 2d. 427, 433.  Thus, since the information supporting the  account is presumptively in plaintiff’s possession, and it is defendant’s opportunity afforded by law to obtain detail of this claim from the information that was kept in Plaintiffs books and records.

A Motion to Strike

The Bill of Particulars is not a single pleading.  Rather, each entry is considered a separate claim, Plaintiffs may move to strike each entry on the ground that it is deficient and not supported by ledger, book account, invoice or any other business record.

Because the Bill of Particulars is a pleading, each line item is a separate claim for purposes of a motion to strike.

When determining whether to bring a motion to strike a line item you need to review the line item as to whether or not the line item (1) was contemporaneously created and (2) is reflected in any invoice, business records or ledgers.

Your motion should also include a request for a Referee to be appointed.  Pursuant to Code of Civil Procedure section 639(a)(1) which states that the court can appoint a Referee  [w]hen the trial of an issue of fact requires the examination of a long account on either side.”  A Referee can determine the proper accounting method to apply where there is conflicting evidence as to the proper standard. De Guere v. Universal City Studios (1997) 56 CA 4th 482.   Also, trained accountants can more efficiently and inexpensively examine long accounts and determine if the line items are proper.

Opposition to Motions 

 Plaintiff has the burden of showing they have the proper business records to support their Bill of Particulars and the claim documented thereby.  The foundation that must be laid for the introduction of “business records” include: (1) the books or records are books of account, (2) kept in the regular course of business, (3) the business is of character in which it is proper and customary to keep such books, (4) the entries are either original entries or the first permanent entries of the transaction, (5) made at the time or within a reasonable proximity to the time of the transaction, and (6) the persons making them had personal knowledge of the transactions.  Gough v. Security Trust & Sav Bank (1958) 162 Cal.App.2d 90, 93, citing Chan Kiu Sing v Gordon (1915) 171 Cal. 28Kains v. First  National Bank  (1939) 30 Cal.App.2d 447).

However, if documentation of the transaction is not available, or if primary sources are not available, the plaintiff is required to explain how the business is run, how the time and debt were actually recorded.  Butler Bros. v Connolly  (1962) 204 Cal.App.2d 22.  In Butler, plaintiff was the owner and the defendant a manager of a store.  Plaintiff noticed serious shortages of inventory and sued defendant, the manager of the store.  In response to a demand for Bill of Particulars, Plaintiff provided an itemized statement using business records of most of the specific items that were falsified in the defendant’s inventory report, but then further explained the inability to provide additional information and supplied the methodology of determining how the numbers in the bill of particulars were calculated as to the inventory loss and financial damage. Significantly, the explanation directly connected the business practices and business records to the Defendant’s fraud (which hid the actual loss). This was found to be sufficient to show the value of the “book account” that was the subject of the complaint.

Be Prepared to Educate the Court

The Demand for a Bill of Particulars is a centuries old procedure dating back to early common law.  While commonly used in other jurisdictions, California Judges may not even have heard of the procedure prior to seeing your motion.

Be prepared to educate the court that Bill of Particulars is not a discovery device, but an “amplification” of the pleadings.

Also advise the court that that plaintiff is conclusively bound by their Bill of Particulars and no other evidence is admissible at trial including any discovery responses or testimony unless the court grants plaintiff an order to amend their Bill of Particulars.

Likely because of the power of the motion to strike a Bill of Particulars, and its effect on the plaintiff’s ability to present evidence at trial, you will face judges that view the procedure as a substitute for discovery and will try to argue that your arguments in favor of striking the bill are, in essence, a substitute for a jury’s decision on the credibility of the documentation provided.

The fact that the case law in this area is fairly old, leads to a visceral reaction to let the jury decide rather than engage in the effort necessary to actually address the remedy provided in the code.  Nevertheless, if there is enough at stake, the preclusive effect of a stricken Bill of Particulars, may be a benefit that is worth the cost.

 

 

 

Pre-trial discovery is the heart and soul of litigation. It enables the parties to evaluate and prepare their case for mediation, motions for summary judgment or summary adjudication and for trial. The propounding of discovery also leads to discovery disputes and then to discovery motions–all which can threaten to overwhelm the litigation of the case. However, due to the court holidays ordered by the Judicial Council during this pandemic, parties were not able to have their discovery disputes heard by the courts, thus, stalling their cases. Now with the courts reopening, the backlog of motions previously taken off calendar will need to be rescheduled. Meanwhile, new motions are being filed. This unprecedented situation begs the question from attorneys: When will my discovery motion be heard?

Continue Reading When Will My Discovery Motion Be Heard?

 

Life as we knew it has been put on hold due to COVID-19.  Courts are closed, deadlines are extended, and court dates have been continued.  As the courts establish “new norms” for their operations, access to the civil courts may be limited and further delayed.  It is not clear what civil matters will receive priority. Civil law and motion matters taken off calendar due to court closures will need to be rescheduled, and newly filed motions added to crowded calendars. It could take months or years before the court dockets return to normal.  Scheduling new law and motion matters and having them heard will be challenging for all litigators.  However, courts and counsel have available options to address the backlog.

Continue Reading Civil Litigation and COVID-19: Justice Need Not Be Delayed

Recently at an MCLE seminar, a sitting judge forewarned the audience that because of all the new judges from a variety of backgrounds, often they don’t  have the necessary background on law and procedures for their department.  His advice:

come to your hearings with copies of all the important cases and statutes, no matter how basic the concept is.

This sitting judge was subtly saying:  Plan on educating the court!!

Continue Reading Know Your Audience

The meet and confer process has failed.   Now you have to decide whether (1) you need to bring a Motion to Compel Further Documents because the documents are an integral part of the defense and/or prosecution of your case, or (2) wait for trial and make a motion in limine to exclude the documents categorically at trial.  Two of the factors you are going to have to consider are how much time it’s going to take to prepare the motion as well as the cost to your client.

Most attorneys underestimate the time and cost in filing a Motion to Compel Further Responses.

Continue Reading How Much is that Motion in the Window?

Effective January 1, 2019, Code of Civil Procedure Section 2016.080 authorizes the court to conduct an informal discovery conference upon request of a party or on the court’s own motion. The statute reads:

(a) If an informal resolution is not reached by the parties, as described in Section 2016.040, the court may conduct an informal discovery conference upon request by a party or on the court’s own motion for the purpose of discussing discovery matters in dispute between the parties.

Continue Reading If Meet and Confer Fails, Ask for Help

The purpose of the “meet and confer” requirements set forth in C.C.P. §§ 2025.450(b)(2), 2025.480, 2030.300(b), 2031.310(b), 2032.250 and 2033.290 was for the lawyers to revisit their position, and in good faith, discuss a resolution in order to avoid unnecessary discovery motions.

Unfortunately, times have changed since the Discovery Act of 1986 went into effect. No longer can a law firm afford to have an associate sit at the knees of a respected senior partner and watch, listen, and learn without billing. No longer do lawyers have time for the “two-martini” lunch in order to get input from their colleagues about cases with which they are having trouble. No longer is the legal community so small that you know you are going to see opposing counsel again and fear their retaliation.

Continue Reading EXHIBIT A—The Meet and Confer Letter

 In the previous blog, Start Preparing Your Motion Because with These Responses You’re Going to Court, I used the following example as a type of response I see as a Discovery Referee:

Responding party hereby incorporates its general objections as if fully stated herein.  Responding party objects to this request to the extent it seeks information protected from disclosure by the attorney-client privilege and/or work product doctrine, or any other applicable privilege. Responding party objects as it invades their and third parties’ right of privacy. Responding party objects that the request fails to specifically describe each individual item sought or reasonably particularize each category of item sought. Responding party objects that it is unduly burdensome and overbroad.  Responding party objects to this request as it does not seek relevant documents or documents reasonably calculated to the discovery of admissible evidence.  Responding party objects that plaintiff has equal access to these documents.  Responding party objects that the request seeks documents already in plaintiff’s possession custody or control.  Responding party objects to this request as it seeks documents that are not within defendants’ possession, custody, or control.

Boilerplate objections are becoming more and more common in response to each of the document requests.  The above is an example of inappropriate boilerplate objections. In fact, boilerplate general objections are sanctionable in California per Korea Data Systems Co. Ltd. v. Superior Court (1997) 51 Cal.App.4th 1513 and may result in waivers of privilege per Burlington Northern & Santa Fe Ry Co. v. U.S. Dist. Court 408 F.3d 1142, 2005 WL 1175 922 (9th Cir.2005) [trial court affirmed in holding boilerplate objection without identification of documents is not the proper assertion of a privilege.] Continue Reading WHY THESE OBJECTIONS ARE GARBAGE

Have you noticed that you are getting too many objections and very little documents to your document requests?  Have you also noticed that despite months of meet and confers you still don’t have a determination whether or not documents exist; and if they do exist, why they aren’t being produced? Is this scenario more the norm then the exception? Continue Reading Start Preparing Your Motion Because with These Responses You’re Going to Court

 

 

It’s not required that a party amend interrogatory responses to reflect information the party got after responding, but there are situations in which a party may want to do just that.

Here’s why it may be a good idea to amend interrogatory responses:

  1. Don’t make it look like you’re concealing facts. If you or your client learn new information, immediately file amended interrogatory. The court may view a failure to do so as a deliberate attempt to conceal known facts. And when a party deliberately conceals known facts in the answers to interrogatories, it may be subject to imposition of sanctions. See CCP §§2023.010–2023.040, 2030.300(d)–(e).
  2. Avoid arguments of surprise.  When a responding party discovers an error in the initial response or acquires information that would affect the initial response, amending an answer may be the wisest course because it avoids the arguments of surprise and the possibility of the court granting a continuance at trial or excluding the new information altogether.

If you decide to amend an interrogatory response, you don’t need get a court order (CCP 2030.310(a)) or file a motion for relief under CCP §473. You simply serve an amended response that complies with the California Rules of Court and the Code of Civil Procedure sections applicable to interrogatories. For example, the amended responses must comply with Cal Rules of Ct 3.1000, and should be formatted and served in the same manner as answers to interrogatories.

And there’s no limitation on when an amended response may be served. CCP 2030.310(a) (except that CCP §§2016.060, 2024.010–2024.060 provide for a cutoff time by which all discovery, including responses, must be completed). But because a trial judge might be more likely to find prejudice to the propounding party if the “new answer” isn’t disclosed until the time of the trial or hearing, it’s a good idea to correct responses as soon as possible.

Keep in mind that, if you serve an amended response, the propounding party may use the initial response to the interrogatory against your client at the trial or other hearing as far as admissible under the rules of evidence. CCP §§2030.310–2030.410. But you’ll be able to use the amended one. CCP §§2030.310(a), 2030.410.

Note also that a party can offer evidence at trial that differs from or contradicts previous answers to interrogatories (in other words, the contradiction between an answer to an interrogatory and a witness’s testimony doesn’t in itself affect the testimony’s admissibility). That being said, however, the party can be impeached with a prior interrogatory answer.

Don’t confuse amended answers to interrogatories with supplemental responses:

  • An amended response is voluntarily made when counsel or a party discovers information that was inadvertently omitted or mistakenly stated in the initial interrogatory responses;
  • Supplemental responses to interrogatories are made after a specific request under CCP 2030.070 that is seeking any later-acquired information bearing on all answers previously made in response to interrogatories.

For expert guidance on all aspects of propounding and responding to interrogatories, turn to CEB’s California Civil Discovery Practice, chap 7. Also check out the step-by-step advice in CEB’s Obtaining Discovery: Initiating and Responding to Discovery Procedures.

Reprinted from CEB BLOG: Should You Amend Your Interrogatory Responses? copyright 2019 by the Regents of the University of California. Reproduced with permission of Continuing Education of the Bar – California (CEB). No other republication or external use is allowed without permission of CEB. All rights reserved. (for information about CEB publications, telephone toll-free 1-800-CEB-3444 or visit our website – CEB.com.)