What discovery methods do you consider when you are strategizing about the most effective method to obtain the information you need and pin down your opponent? If you have a contract case, think about serving a Demand for Bill of Particulars. A Demand for Bill of Particulars is NOT a discovery device, but an extension of the pleading. It is an old fashioned pleading vehicle but still an effective way to force your opponent to document the evidence of their contract or quasi contract claims, or have a court strike the claims, without the necessity of multiple motions to compel, before obtaining evidence or terminating sanctions.
The Demand Bill of Particulars presumes that the party suing has a “book” or “contemporaneous ledger” or an “account” to support any charges when the complaint was filed, and provides a court process to require that it be presented upon demand. The account, unlike the pleading in a complaint, is supposed to “furnish a defendant with the details of the items charged against him…” Meredith v. Marks (1963) 212 Cal. App. 2d 265, 269. This procedure dates back to early common law when plaintiff sued on an alleged account, and the pleadings gave no specifics as to the nature of the claim –i.e., whether contract, quasi, contract etc. The courts allowed a “Demand for Bill of Particulars” to enable defendant to discover what being claimed and to prepare for trial. Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2016) ¶8:1765.
California has codified the procedure in Code of Civil Procedure section 454 that reads as follows:
It is not necessary for a party to set forth in a pleading the items of an account therein alleged, but he must deliver to the adverse party, within ten days after a demand thereof in writing, a copy of the account, or be precluded from giving evidence thereof. The court or judge thereof may order a further account when the one delivered is too general, or is defective in any particular.
If the pleading is verified the account must be verified by the affidavit of the party to the effect that he believes it to be true; …[or the attorney can verify it in some circumstances].
The first key is what is “an account”, to determine if a demand can be made. According to Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2016) ¶8:1769 “on account” means
“…any action in contract or quasi-contract consisting of one or more items and pleaded in general terms. The most requested case is where the complaint contains one or more of the common counts:
- Open book accounts
- Labor and materials furnished under a contract;
- For monies loaned;
- For “money had and received.”
The Code of Civil Procedure also makes it clear that a Bill of Particulars is not a discovery device and is outside the Discovery Act. Rather, it is an “amplification” of the pleadings, but it is undeniable that there is some overlap in the information actually obtained. Its use enables defendants who have been sued generally on a contract claim or on an account to force plaintiff to itemize the basis of the account on which the complaint is based. See Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2016) ¶8:1765 As an “amplification” of the pleadings, rather than discovery, there are consequences on plaintiff’s pleading and proof. Consequently, at trial, plaintiff is limited to the items, description of services provided and amounts specified in his or her Bill of Particulars. See Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2016) ¶8:1778 citing Baroni v. Musick (1934) 3 Cal. App. 2d. 419, 421. As the First District Court of Appeals stated in Dobbins v. Hardister (1966) 242 C2d 787 at page 795
“While modern discovery devices may serve the same purpose as a bill of particular it should be noted the primary purposes of discovery is the production of evidence for use at trial while that of a bill of particulars is to amplify the complaint ‘in order to make it easier for the defendant to prepare his pleading”.
Furthermore, a Bill of Particulars differs from an interrogatory or other discovery request because if the plaintiff’s response to the Bill of Particulars is too general or defective, the responding party can be precluded from proving the debt owed. See Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2016) ¶6:126.16. In this regard, to draw an analogy to discovery, it is akin to moving straight from a motion to compel further answers to interrogatories to a motion in limine.
Not only is a Demand for Bill of Particulars cost effective with a turn around time of 10 days, if the court finds that any of the line items are deficient it is deficient it can strike the entry and preclude plaintiff from proving the debt owed.