Judge: Michael Shultz, Case: 23CMCV00606, Date: 2023-09-14 Tentative Ruling
Case Number: 23CMCV00606 Hearing Date: September 14, 2023 Dept: A
23CMCV00606
TPINE Leasing Capiral, L.P. v. Derrick Courtney Franklin, et al
[TENTATIVE] ORDER GRANTING DEFENDANTS’
MOTION FOR FURTHER BILL OF PARTICULARS AND REQUEST FOR EVIDENTIARY SANCTIONS
I.
BACKGROUND
The
complaint alleges that Plaintiff agreed to lease a truck to Defendants pursuant
to a written agreement. Defendants allegedly breached the agreement by failing
to make monthly payments beginning October 12, 2022. Plaintiff alleges claims
for breach of the lease agreement, breach of personal guaranty, and common
counts for money had and received and alleges damages of $126,705.00.
II. ARGUMENTS
Defendants
argue that they served Plaintiff with a bill of particulars to get a full
understanding of the amounts owed. Plaintiff responded on August 2, 2023, but
the response was defective as Plaintiff provided only objections. The Court
should order Plaintiff to serve a further bill of particulars.
Plaintiff
argues that Defendants assume that Plaintiff’s claims are based on open book
account, which they are not. Defendants have not shown prejudice resulting from
the purportedly defective bill of particulars.
In
reply, Defendants argue they are entitled to a bill of particulars based on the
claim of money had and received. The request is not a discovery device.
III. DISCUSSION
A
party must deliver to the adverse party, within 10 days after a demand is made
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." (Code Civ. Proc., § 454.) Plaintiff
objected on grounds the complaint is based on breach of contract and a
commercial lease agreement, not on an “account.” Plaintiff’s contention is
without merit.
Plaintiff
relies on Distefano v. Hall (1963) 218
Cal.App.2d 657, which does not state that a bill
of particulars can only be demanded on a claim for open book account. Instead,
the Court held that “the requirement that a party produce a bill of
particulars, however, applies only to an action upon ‘an account.’ (See 2
Witkin, Cal. Procedure, § 241, p. 1217.) Section 454 has received a fairly
broad interpretation and has been construed to cover almost any kind of
contract action for a money claim made up of more than one item. (Long Beach
etc. Dist. v. Dodge (1902) 135 Cal. 401, 407; 2 Witkin, Cal. Procedure, §
243, p. 1219.) It has been held, however, not to apply to an account stated (Auzerais
v. Naglee (1887) 74 Cal. 60; Ahlbin v. Crescent Commercial Corp., (1950)
100 Cal.App.2d 646), nor to an action upon a compromise agreement. (Henning
v. Clark (1920) 46 Cal.App.551) … It appears from the foregoing authorities
that, at most, the requirement for a bill of particulars is restricted to
actions based upon contracts seeking to recover ‘items of an account.’” (Distefano at 677.)
Plaintiff construes the section too narrowly.
Plaintiff
alleges that the contract claims are based on violations of two separate lease agreements
for a 2017 Greatdane Reefer (VIN-1280 Truck) and for a 2018 Freightliner
Cascadia (VIN-7546 Truck). (Complaint ¶¶ 11, 13). The complaint alleges “a
money claim made of more than one item.) (Distefano, at 677).
IV. CONCLUSION
Accordingly,
Defendants’ motion is GRANTED. Plaintiff is ordered to provide a further bill
of particulars concerning the claims on both lease agreements and related
personal guarantees within 10 days and without objection.