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What is a bill of particulars?

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I am requested to send a lawyer a bill of particulars before we meet before a judge for a conference. Do I have to do this by law?



<BLOCKQUOTE><font size="1" face="Arial, Helvetica, Verdana">quote:</font><HR>Originally posted by Linda1900:
I am requested to send a lawyer a bill of particulars before we meet before a judge for a conference. Do I have to do this by law?<HR></BLOCKQUOTE>

My response:

YES !!

Demand for Bill of Particulars: This is also 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. [Ca Civ Pro Sec. 454]

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 (below).

* * * * * * * * * * * * * * * * * * * * * * * * *


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.

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

a. Actions in which available: A demand for bill of particulars may be served on the plaintiff only in an action on "an account." As stated in the Code: "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 after a demand thereof in writing, a copy of the account, or be precluded from giving evidence thereof . . ." [Ca Civ Pro Sec. 454]

(1) "On account": This basically means any action in contract or quasi-contract consisting of one or more items and pleaded in general terms. The most frequent case is where the complaint contains one or more of the common counts:

· Open book accounts;

· For labor and materials furnished under a contract;

· For monies loaned;

· For "money had and received."

(2) Not available where complaint for account stated: But a bill of particulars is not appropriate in an action on an account stated, because an account stated is deemed to merge the various items on which the earlier accounts were based: i.e., there is nothing left to itemize. [Ahlbin v. Crescent Commercial Corp. (1950) 100 Cal.App.2d 646, 648, 224 P.2d 131, 133--plaintiff may ignore defendant's demand]

b. Procedure

(1) Defendant's demand: In the above kinds of actions, defendant is entitled to demand a bill of particulars as a matter of right; no court order or permission is required.

(a) Timing: No time is prescribed by statute. Presumably, therefore, the demand could be made as late as the time of trial.

(b) Form of demand: The demand must be in writing. But no special form is required. It does not even have to be signed (typed name of party or attorney sufficient). [See Ca Civ Pro Sec. 454]

(c) Custody of original: Defendant retains the original, along with plaintiff's response thereto. (They are not filed with the court.) [See Ca Rules of Court Rule 201.5(b)]

(2) Plaintiff's response: The "bill of particulars," itemizing the specifics of the account, must be delivered to the defendant within 10 days after service of the demand. [Ca Civ Pro Sec. 454]

(a) Verification: If the original complaint was verified, the bill of particulars must also be verified. [Ca Civ Pro Sec. 454]

(b) Amendments: 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. [Ca Civ Pro Sec. 454]

(c) Information furnished limits claim: 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, 39 P.2d 435, 436]

(d) Amendment of bill: The court, however, does have authority under Ca Civ Pro § 473(a)(1) to permit plaintiff to amend the bill of particulars under the same terms as amendment of the pleadings generally. (See "Amendment to Pleadings." Such an amendment might even be permitted at the time of trial, if no prejudice to the opposing party is shown.

(e) Enforcement of demand

(1) Defective or incomplete bill furnished: If the information furnished is deemed too general or incomplete, the defendant may make a noticed motion for a further bill. [Ca Civ Pro Sec. 454]

(a) May be waived: If defendant fails to do so before trial, he or she waives any objection as to the sufficiency of the information furnished. [Burton v. Santa Barbara Nat'l Bank (1966) 247 Cal.App.2d 427, 433, 55 Cal.Rptr. 529, 534]

(2) Late: Technically, furnishing the bill late (i.e., after 10 days following the demand) is a breach of the statutory duty, and hence could justify exclusion of evidence. But as a practical matter, unless defendant can show some prejudice resulting from the delay, it is unlikely that any sanction will be imposed. [McCarthy v. Mt. Tecarte Land & Water Co. (1896) 110 Cal. 687, 692-693, 43 P 391, 392]

(3) Failure to furnish any bill: If plaintiff delivers no bill of particulars, the court may bar plaintiff from introducing evidence at trial in support of the account claimed. [Ca Civ Pro Sec. 454]

(a) Discretionary: Ca Civ Pro Sec. 454 seems to make the granting of such order automatic ("[the party] must deliver the account . . . or be precluded from giving evidence thereof"). But courts have interpreted this as merely giving the judge discretion to exclude plaintiff's evidence for failing to furnish a bill of particulars. [McCarthy v. Mt. Tecarte Land & Water Co., supra, 110 Cal. at 692, 43 P at 392]

(b) Procedure: The court has power to make such an order at trial or any time beforehand. [Burton v. Santa Barbara Nat'l Bank, supra]


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Junior Member
Demand for Bill of Particulars


I have a question regarding serving a bill to my Plaintiff.. in previous posting it says we don't have to file it with the court...

"(c) Custody of original: Defendant retains the original, along with plaintiff's response thereto. (They are not filed with the court.) [See Ca Rules of Court Rule 201.5(b)]"

how else judge will now I am requesting something?

Also in what form should I present it? Attach to my Answer as a separate document? should I list all my demans in details?

Thank you,



Senior Member
This thread is ANCIENT. Don't hijack other people's threads. Start your OWN thread if you have a question.

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