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Thursday, December 1, 2011

Thursday, August 25, 2011

Demanding a bill of particulars in California civil litigation, part two

This blog post is part two of a discussion of the issues involved in demanding a bill of particulars in California civil litigation.

A demand for a bill of particulars is a procedure outside the Discovery Act, but it serves a discovery purpose: It enables 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.

This procedure dates back to early common law. When plaintiff sued on a common count, the pleadings gave no specifics as to the nature of the claim—i.e., whether contract, quasi-contract, etc. Therefore, courts allowed a "demand for bill of particulars" to enable defendant to discover what was being claimed and to prepare for trial. 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.

Advantages:

The bill of particulars has some distinct advantages over Discovery Act procedures:

Inexpensive:

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.

Conclusive:

Answers to interrogatories or deposition questions can be used as evidence against the answering party at trial; but they are not conclusive (contradictory evidence is also admissible). On the other hand, a bill of particulars is conclusive as to the items and amounts claimed; i.e., no other evidence is admissible at trial, unless the court grants leave to amend the bill of particulars .

Does not count against "Rule of 35":

Since it is not an interrogatory, the demand does not count against the numerical limits on specially prepared interrogatories under the Discovery Act. Thus it is particularly useful in limited civil litigation where parties are strictly limited to 35 discovery requests pursuant to Code of Civil Procedure § 94.

Disadvantages:

The big disadvantage is that a bill of particulars is only available in actions on "an account". Therefore, it is not an alternative to depositions and interrogatories in most cases.

Many 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 and thus may not have all of the documentation. I have personally seen at least two instances where creditors dismissed cases when they could not respond to the bill of particulars. And with the rise of securitization of credit card debts and consolidation of credit card issuers this means that it is now more likely than ever that plaintiff may have filed suit while having little, if any, documentation to support their claim.

And as previously mentioned the response of plaintiff to the bill of particulars is conclusive as to the items and amounts claimed; i.e., no other evidence is admissible at trial, unless the court grants leave to amend the bill of particulars.

Attorneys or parties in the State of California who wish to download a sample demand for a bill of particulars can click below.


http://www.scribd.com/doc/25560416/Sample-Demand-for-Bill-of-Particulars-for-California

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

Visit his website at http://www.legaldocspro.net
 

Demanding a bill of particulars in California civil litigation

This blog post will discuss the issues involved in demanding a bill of particulars in California civil litigation. A plaintiff who sues on an account is not required to set forth in the complaint the items of account. See Code of Civil Procedure § 454. Therefore, it is not appropriate for the defendant to demur to the complaint on the ground of uncertainty. 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. See Code of Civil Procedure § 454. This procedure, known as a bill of particulars, thus forces the plaintiff to itemize the total sum upon which the complaint is based.


Demand for a bill of particulars appears to be a little used procedure today. Yet it remains a viable tool for the defendant in an action on an account. Kaneko Ford Design v. Citipark, Inc., (1988) 202 Cal. App. 3d 1220, 1225, (reciting fact that demand was made and complied with.)

Perhaps a reason for its declining use is that 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 and thus may not have all of the documentation. I have personally seen at least two instances where creditors dismissed cases when they could not respond to the bill of particulars.

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. And if the original complaint or cross-complaint was verified the bill of particulars must also be verified.

If, after furnishing the itemization, plaintiff finds that it was incomplete or incorrect, plaintiff must seek leave of court (by noticed motion) to amend the bill of particulars just as he or she would to amend a pleading.

The bill of particulars furnished by the plaintiff is treated as an "amplification" of the pleadings. As such, it has the effect of a pleading. Consequently, at trial, plaintiff is limited to the items and amounts specified in his or her bill of particulars. No additional items can be shown. See Baroni v. Musick (1934) 3 Cal. App. 2d 419, 421.

Apart from actions on a book account, demands for a bill of particulars arise most often in the context of common counts. Kawasho Internat., U.S.A. Inc. v. Lakewood Pipe Service, Inc., (1983) 152 Cal. App. 3d 785, 790. These include actions for:

(1) money had and received-Firpo v. Pacific Mut. Life Ins. Co., (1926) 80 Cal. App. 122, 125;

(2) money lent or paid-Moya v. Northrup, (1970) 10 Cal. App. 3d 276, 280;

(3) services and material-Jensen v. Dorr, (1911) 159 Cal. 742, 746-747;

(4) goods sold and delivered-Ben-Hur Mfg. Co. v. Empire Factors, (1960) 181 Cal. App. 2d 123, 131; and

(5) quantum meruit-Caruso v. Snap-Tite, Inc., (1969) 275 Cal. App. 2d 211, 214-215.

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. Distefano v. Hall, (1963) 218 Cal. App. 2d 657, 677.

An account stated is a new agreement by the parties which supersedes the original contract and account. Jones v. Wilton, (1938) 10 Cal. 2d 493, 498 .

Any action on it is therefore based on only the final balance agreed on by the parties and not on the original individual items of account. Hallford v. Baird, (1938) 27 Cal. App. 2d 384, 398. Therefore, itemization of the account is not possible.

If the information furnished is deemed too general or incomplete, the defendant may make a noticed motion for a further bill of particulars. Burton v. Santa Barbara Nat'l Bank (1966) 247 Cal.App. 2d 427, 433.

If plaintiff delivers no bill of particulars, the court may bar plaintiff from introducing evidence at trial in support of the account claimed if the defendant makes a motion.

Attorneys or parties in the State of California who wish to download a sample demand for a bill of particulars can click below.

http://www.scribd.com/doc/25560416/Sample-Demand-for-Bill-of-Particulars-for-California

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

Visit his website at http://www.legaldocspro.net/

Monday, August 22, 2011

Filing a motion for a further bill of particulars in California

A motion for a further bill of particulars in California is the topic of this blog post. 


Often the response of a plaintiff to a demand for a bill of particulars is too general or is incomplete. Many assignees of credit card companies will respond by simply providing a statement showing the total amount alleged to be due without providing the details of each charge such as the date of purchase of the items set forth or the type of goods purchased. This type of response is clearly defective and the defendant should file a motion for a further bill of particulars on the grounds that a more specific bill of particulars is needed in order for them to prepare a defense.

Code of Civil Procedure § 454 states in pertinent part that, "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 information furnished is deemed too general or incomplete, the defendant may make a noticed motion for a further bill of particulars. Burton v. Santa Barbara Nat'l Bank (1966) 247 Cal.App. 2d 427, 433.

If a defective response to a demand for bill of particulars is received, the defendant should first send a letter to plaintiff requesting a more detailed response. If no further response is received then a motion can be filed.

If plaintiff fails to provide a further bill of particulars after being ordered by the court to do so, the court may bar plaintiff from introducing evidence at trial in support of the account claimed if the defendant makes a motion to preclude the introduction of evidence at the trial.

Attorneys or parties in the State of California who wish to view a portion of a sample motion for further bill of particulars sold by the author including a full memorandum of points and authorities and sample declaration can click below.

http://www.scribd.com/doc/62289322/Sample-Motion-for-Further-Bill-of-Particulars

The author of this article, Stan Burman, is a freelance paralegal with over 15 years of experience in California civil litigation. Visit his website at http://www.legaldocspro.com

Subscribe to my weekly newsletter with legal tips and tricks for California.

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Monday, August 8, 2011

Defending a credit card lawsuit in California

Defending a credit card lawsuit in California is the topic of this blog post. 


There has been a lot of publicity lately about the "produce the note" strategy in foreclosure litigation in the United States. However, the same basic issue is involved in credit card litigation. This blog post will briefly discuss a "produce the assignment" strategy for credit card litigation in California. The main issue discussed will be the issue of whether the collection agency or other assignee is the actual and proper assignee of the credit card company or other creditor, and thus has standing to sue. The author recently worked on a case in Orange County, California where Midland Funding, LLC is the Plaintiff, while they allege in the complaint that they are the assignee of a Chase credit card account and are suing for over $9,000.00, the defendant in the lawsuit received a settlement offer in June 2010 from another collection agency offering to settle the same Chase credit card account for just over $1,800.00.

This situation raises a very important issue in California, and presumably every other state in the United States. In California the plaintiff must be the "real party in interest" with respect to the claim sued upon. Except as otherwise provided by statute, "every action must be prosecuted in the name of the real party in interest." See Code of Civil Procedure § 367; also see Dino v. Pelayo (2006) 145 Cal.App. 4th 347, 353, (citing text); and Cloud v. Northrop Grumman Corp. (1998) 67 Cal. App. 4th 995, 1004, (citing text).

The purpose of the real party in interest requirement is to assure that any judgment rendered will bar the owner of the claim sued upon from relitigating. "It is to save a defendant, against whom a judgment may be obtained, from further harassment or vexation at the hands of some other claimant to the same demand." Giselman v. Starr (1895) 106 Cal. 651, 657; Cloud v. Northrop Grumman Corp. (1998) 67 Cal. App. 4th 995, 1003, (citing text).

Clearly if there are several alleged assignees attempting to collect on the same debt, only one of them is a valid assignee. And as shown previously, in California only a valid assignee can be the "real party in interest". There cannot be more than one "real party in interest".

And the issue of standing to sue is not waived by failing to raise it by either an answer or demurrer and can be raised at any time in a lawsuit, including for the first time on an appeal.

"Contentions based on a lack of standing involve jurisdictional challenges and may be raised at any time in the proceeding." See Common Cause of Calif. v. Board of Supervisors (1989) 49 Cal. 3d 432, 438, lack of standing can be raised for first time on appeal, see Associated Builders & Contractors, Inc. v. San Francisco Airports Comm'n (1999) 21 Cal. 4th 352, 361.

If a plaintiff cannot prove they have standing to sue then the lawsuit must be dismissed. When a party lacks standing to sue, the action must be dismissed, unless the complaint can be amended by substituting a party who has standing. Cloud v. Northrop Grumman Corp. (1998) 67 Cal. App. 4th 995, 1004-1011.

Any party being sued by a collection agency or other assignee should seriously consider the "produce the assignment" strategy. If as is often the case, the credit card company has "assigned" the credit card account balance owing to several different collection agencies this may result in the lawsuit either being dismissed by the plaintiff if they cannot produce an actual assignment, or result in much more favorable settlement terms being offered.

The basic "produce the assignment" strategy in brief is as follows:

The answer to the complaint should include an affirmative defense that the plaintiff is not a valid assignee, and thus lacks standing to sue. However, if the answer has already been filed this is not critical because as previously mentioned, the issue of standing to sue can be raised at any time.

Special interrogatories and requests for production of documents should be used to force the alleged "assignee" to prove that they are in fact the "real party in interest". A demand for a bill of particulars should also be used to force plaintiff to provide the details for each and every charge that is included in their lawsuit.

The author of this article, Stan Burman, is a freelance paralegal with over 15 years of experience in California civil litigation. Visit his website at http://www.legaldocspro.com

Subscribe to my weekly newsletter with legal tips and tricks for California.
http://www.legaldocspro.net/newsletter.htm

To view numerous sample documents sold by the author click below.
http://www.scribd.com/legaldocspro

Tuesday, May 24, 2011

Motion for assignment order in California

The filing of a a motion for assignment order om California is the topic of this blog post.


An assignment order can be very useful to someone attempting to collect a judgment in California.

Many times someone attempting to collect a California judgment will be unable to collect as they cannot locate any assets such as a bank account or car that may be seized to satisfy the judgment. Or the judgment debtor may be self-employed making a wage garnishment impossible. These types of situations are where an assignment order can allow someone to collect on a judgment that would otherwise be uncollectible. Many persons working in the judgment recovery field will testify to the effectiveness of an assignment order.

Code of Civil Procedure § 708.510 authorizes a Court to issue an order directing the Judgment Debtor to assign to a Judgment Creditor, all or part of a right to payment due, or to become due, including

1. Wages due from the federal government that are not subject to withholding under an earnings withholding order;

2. Other payments such as rents, commissions, royalties, payments due from a patent or copyright, insurance policy loan value, accounts receivable, general intangibles, judgments and instruments.

Although the Court may take into consideration all relevant factors, the sole constraints placed on the Court are that the right to payment be assigned only to the extent necessary to satisfy the creditor’s money judgment and that, where part of the payments are exempt, the amount of the payments assigned should not exceed the difference between the gross amount of the payments and the exempt amount.

Note that a California Court of Appeal has ruled that just because a right to payment has been ordered assigned under Code of Civil Procedure § 708.510, that does not preclude a challenge to whether the claims were assignable ab initio; the Legislature specifically noted that § 708.510 does not make any property assignable that is not already assignable. See Kracht v. Perrin, Gartland & Doyle (1990) 219 Cal App 3d 1019, 1022. In this case the Court ruled that a right to receive payment from a malpractice suit could not be assigned.

In an unusual case involving the Estate of Ferdinand Marcos, the Court ordered his Estate to assign the funds held in Swiss bank accounts in favor of the plaintiffs who had sued the Estate for damages resulting from torture, summary execution, and disappearances during his regime. The judgment which was entered in the United States District Court in Hawaii, had been transferred to a district court in California for enforcement purposes.

Estate of former Philippines president ordered to execute assignment of funds in Swiss banks in favor of the class and individual plaintiffs. Case law interpreting California statute on assignment of right to payment in enforcement of a judgment has consistently upheld a court's power to require debtors to assign their interests in debts or other property. The statute and its case law permitted an order of assignment of the estate's interests in the foreign bank accounts for the benefit of the judgment creditors, class action plaintiffs. See In re Estate of Marcos Human Rights Litig. (1995, DC Hawaii) 910 F Supp 1470, 1473.

This case clearly shows that an assignment order can be used to reach almost any asset of a Judgment Debtor.

Code of Civil Procedure § 708.520 authorizes the Court to restrain the Judgment Debtor from assigning or otherwise disposing of the right to payment sought to be assigned upon a showing of need. This is important as otherwise the Judgment Debtor may assign the right to payment to someone else or otherwise attempt to evade collection efforts.

Attorneys or parties in California who wish to view a portion of a sample motion for assignment order for California that is sold by the author please see below.

http://www.scribd.com/doc/51511627/Sample-Motion-for-Assignment-Order-for-California

The author of this article, Stan Burman, is a freelance paralegal with over 15 years of experience in California Civil Litigation. Visit his website at http://www.legaldocspro.net/

Subscribe to his weekly newsletter with legal tips and tricks for California. http://TinyWebLink-001.com/?pid=6585639

Amending a Judgment in California

http://www.legaldocspro.com/blog/code-of-civil-procedure-section-582-5-motion-to-amend-a-judgment-in-california/