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. 28, Kains 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.