California Business Lawyer Blog

The Commercial Collection Agency Association (CCAA) reported that its members received a record volume of business-to-business accounts for collection in 2009.

Emil Hartleb, Executive Director of CCAA reported that in 2009 CCAA members received $17, 762,139,514 in accounts placed for collection.

This represents an increase of 33.4 percent over 2008. Account placement in 2008 held the previous record, $13,311,932,553.

Hartleb pointed out that the gain in placement for the Fourth Quarter of 2009 compared to the same quarter in 2008 was particularly strong registering a gain of over 48 percent.

He indicated that the problems in the economy's business sector are not behind us yet, particularly for small and medium sized businesses.

In addition to reporting their account placement statistics, members are surveyed quarterly on their outlook for account placement and the collectability of that placement. Hartleb stated that in the survey conducted for the Fourth Quarter of 2009, 70 percent of CCAA's membership believed that a lackluster economy, marked by high levels of account placement and declining collectability, will continue for at least the next six months. This is an increase of approximately 27 percent from the Third Quarter Survey where 55 percent of the CCAA membership believed that account placement would continue to rise and collectability decline.

Continue reading "ACCOUNTS PLACED WITH COLLECTION AGENCIES SET A NEW RECORD" »

The Ninth Circuit affirmed the district court's ruling in Office Depot v.
Zuccarini agreeing that a creditor may levy against a domain name in the jurisdiction
where the domain name registry is located. The decision is significant for two
reasons. First, it affirms (or reaffirms) that domain names are property
subject to the claims of creditors. Second, it allows creditors to proceed
against domain names where the registry is located, thus allowing creditors to
proceed against domain names in one proceeding and more importantly levy
against domain names located abroad (where the registry is located in the
United States). Overall, this makes getting at a domain name much easier for
creditors says California Collection Attorney Steven C. Peck.

Background: Office Depot originally obtained a judgment against frequent cybersquatting defendant John Zuccarini. Office Depot then assigned the judgment to DS Holdings. Office Depot obtained the judgment in 2000 and it's surprising that 10 years later the judgment is finally being enforced against something. Although Zuccarini is proceeding pro se, it seems
like he was or became well versed in putting up roadblocks and delaying resolution of the litigation.

DS went after 190 .com domain names that were registered in Zuccarini's
name. DS originally tried unsuccessfully to have the domain names transferred
directly to it. (This was the technique successfully used by the plaintiff in Bosh
v. Zavala.) Later, DS sought to have a receiver appointed over the domain
names. The district court granted DS's request to have the receiver appointed,
and Zuccarini appealed. Zuccarini's appeal focused on whether it was proper to
appoint the receiver in the Northern District of California, since the domain
names were not necessarily "located" there.
The court's ruling: The court runs through basic principles
of in rem jurisdiction and what rules apply. The court then looks to federal
rules to determine where the receiver should be appointed in this case. Finding
no applicable federal rule, the court looks to California law. California law
provides that a writ of execution may be issued "in the county where the
levy is to be made." With this in the background, the two questions
presented by the court are: (1) "are domain names property that is subject
to execution?" and (2) "if so, where are the domain names located for
purposes of execution?"

With respect to the first question, the court cites to Kremen v. Cohen, and
easily concludes that (under California law) "domain names are intangible
property subject to a writ of execution." Kremen undermined Network
Solutions, Inc. v. Umbro Int'l, Inc., 259 Va. 759, 770 (Va. 2000), a Virginia
case widely cited for the proposition that creditors cannot get at domain names
because domain names are contract rights rather then property. To the extent
Kremen did not refute Umbro, this decision definitely provides the necessary
ammunition to creditors. (Again, collection is state-specific, and apart from
the analysis of the nature of domain names, the outcome in these cases turns on
the statute in question, which vary from state to state. That said, I think
given the robust marketplace in domain names, Umbro's conception of the domain
name as a personal services agreement seems outdated, and most courts will
easily recognize this.)

With respect to the second question, the court acknowledges that
"attaching a situs to intangible property is ... a legal fiction,"
and the determination must be made in a "context-specific" manner.
Fairness was relevant to the court's determination of the appropriate situs,
and the court was understandably not receptive to Zuccarini's policy arguments
that allowing a court to issue an order directed to the registry would mean
that every .com and .net domain name could be levied through courts in the
Northern District of California. The court also looked to the ACPA, which
provides for in rem jurisdiction over certain cases where the "registrar,
registry, or other domain name authority" is located. Although this was
not an ACPA case, the court found the structure set up by the statute
persuasive and that the writ was appropriately issued from Northern District of
California since VeriSign (the registry for .com domains) is located there.
The decision clears up two things: Although
post Kremen v. Cohen there shouldn't have been much dispute that domain names
are property which are subject to the claims of creditors, the case clears up
any lingering doubt that may have existed. (Kremen and this case applied
California law, but the result shouldn't vary much across other states.)
Second, the decision makes clear that a court which has jurisdiction over the
registry can issue an order allowing the creditor to get at the domain names.
The case also implicitly affirms that getting a receiver appointed to sell the
domain names is the appropriate route for the creditor. Getting the name
transferred to the creditor is not a remedy allowed under California law
(Palacio Del Mar Homeowners Ass'n, Inc. v. McMahon). Additionally, a transfer
of domain names from a cybersquatter to a judgment creditor raises some issues
around potential infringement of third party rights through sales or other
exploitation of the domain names. (See this
post on Bosh v. Zavala for some discussion of those issues.) The method
ultimately used by DS in this case (a receiver) avoids all of these issues, or
at least shifts them over to the receiver rather than the creditor.

As mentioned above, this ruling makes clear that regardless of
whether a domain name is registered through a foreign registrar, a court having
jurisdiction over the registry can issue an order directing transfer of the
domain names to a receiver. With respect to .com and .net domain names, this
means that creditors can try to get at these domain names through proceeding in
the Northern District of California (as the court notes, VeriSign is the
registry for .com and .net domain names and is headquartered in Mountain View).
While the ACPA allows plaintiffs to file in rem suits where the registry is
located, it's nice (for creditors) to have a similar ruling in the
post-judgment context, and one from the Ninth Circuit as well.

Will this cause a rush of similar claims to be filed in the Northern
District of California? It's tough to say, but even post Kremen, it does not
seem like there's been a ton of post-judgment collections activity with respect
to domain names. From a practitioner's standpoint, it's certainly nice to have
this rule on the books.

Continue reading "Creditor May Levy Against a Domain Name in the Jurisdiction Where the Domain Registry is Located" »

Almost every business owner has faced the same problem at one time or another. The business provides a product or service to a customer, the business invoices the customer for payment and the business never receives payment. This situation is frustrating at best and a threat to the business's profitability and its continued existence at worst says California Business Attorney Steven C. Peck.

However, if you provided a product or service to a customer with the agreement that you would receive payment in return then you are legally entitled to payment and there are steps that you can take when faced with this challenging situation. It is important to understand what you can legally do, and what you cannot do, if you have a customer who doesn't pay you. In order to protect your business from nonpaying customers, you might consider:

· Creating your First Invoice Carefully. Your invoice is a contract and should carefully explain the required terms of payment. Most invoices include a payment due date. After that, you may charge appropriate late fees or interest on the uncollected amount due. Your invoice should specify what the late penalties are and include a phone number for your business in case the customer needs to discuss payment terms with you.

· Sending Follow up Invoices. If you do not receive payment within the required time frame then you may send a follow up invoice. If the bill was not paid because of an honest mistake, for instance if it got misfiled or never arrived, then a second invoice will likely result in a payment received. Make sure to mark the invoice as Second Invoice (or something similar) and include the date of the first invoice so that the customer knows that the bill needs to be paid upon receipt.

· Making Follow up Phone calls. Assertive phone calls are often an effective way to receive payment. However, you must make sure that you are following state and federal laws when you make the calls. As general rules, you should only contact the person who owes the debt and not a relative or employer of such person, you should only call the person between 9 am and 8 pm, you should always be truthful in your discussions and you should never be threatening to the customer.

· Using a Collection Agency. A collection agency can take over the collection attempts for you so that you and your employees have the time to devote to the other work of the business. If you decide to hire a collection agency it is important to thoroughly review the agency by requesting references and checking for complaints with your state attorney general's office or local better business bureau office. Your contract with the collection agency should be explicit in terms of what the agency is authorized to do on your behalf and what the agency will be paid.

· Hiring a lawyer. Your lawyer, such as Steven Peck, can help you negotiate with the customer and represent you in any legal proceedings attempting to collect money from the customer.

· Considering Tax Implication. If you already counted the amount invoiced as taxable income then you may be able to deduct unpaid invoices that you decide to forgive rather than collect.

Continue reading "When the Customer Does Not Pay the Invoice When Due" »

Whether you are a business that regularly has customers or clients in collections or you are an individual that is owed money by another person you should seek an attorney that specializes in the field of collections. Too many times people will go either to a collection agency or an attorney they have worked with in the past or have been referred to even though they have no or little collection experience. Usually, these experiences end either ineffectively, costly, or both.

Let's talk about effectiveness. You tell me what is more effective, a letter from a law office or from a collection agency? How about a call from an attorney or a collector? A collector has hundreds if not thousands of accounts on his call list. He treats them all the same because to him they are. He calls, he blows out the person on the other end, and moves on. A collection attorney will take the time to know your file because he is the one that may one day have to appear in court on it. Collection attorneys are also skilled negotiators who will listen when it is time to listen and press when it is time to press. They can, and often do, incorporate many styles of negotiating into a single claim depending upon the situation. Often times they will get a deal on the table when a collector will not.

What about cost? Collection agencies work on volume. Therefore, if you are not providing them with a large number of accounts then you will probably be charged a fairly high contingency rate. Furthermore, they need to incorporate an attorney's rate into their rate in case they cannot collect and the claim needs to go into litigation. For example, if they charge you 33%, they will pay the attorney 25% out of that rate if it goes to litigation. If you go directly to an attorney you may be able to negotiate the same or lesser rate and skip the "middle man", so to speak.

What else does cutting out the "middle man" mean? It means you do not have to assign your claim as is so often required by collection agencies. This means that instead of the legal right to collect the claim being in their name, it stays your name. Granted, if an assignment occurs the agency will owe you a fiduciary duty, however, you are essentially giving up your rights and should never do this. Collection agencies can go out of business overnight and/or collect money and not remit to the original creditor. It has been known to happen. If you go to a collection attorney they represent YOU, and they are not going to risk their practice and years of expensive schooling by not looking out for your best interests.

Maybe you are thinking, "If my account goes to a collection attorney anyway if the agency cannot collect, why not take two bites at the apple?" As we discussed, the collection agency is likely going to charge you a higher contingency. Also, the account may no longer be in your name. Of additional importance is that now that the collection agency is involved they will stay involved even once the account goes into litigation because they have a vested interest in it. So instead of dealing with the attorney directly, you are still dealing with the collection agency who is dealing with the attorney. He is essentially their attorney, not yours.

Continue reading "Collection Attorneys versus Collection Agencies" »

Many of us have one, or two or maybe even three.

We get them to build credit, or earn points for vacations, but the rates and terms for many credit cards are soon changing.

Credit cards can either be your best friend, or your worst nightmare.

But if you keep an eye out, some new changes could prove to be more friendly.

Card holders beware, 22 new changes for your accounts will go into effect on February 22nd, 2010.

"Credit card companies cannot charge you a late fee unless you're 60 days or more delinquent, you usually only have 14 days to pay that bill, that will be extended to 21 days, due dates must remain the same every month, they will not allow you to go over your credit card limit." Says California Business Attorney Steven C. Peck.

The new laws are meant to protect both consumers and lenders.

Especially the debt stricken college aged student who has an average of $3100 worth of debt.

Among the many changes, new restrictions could determine how companies solicit to students, and just who can sign up for a credit card.

"If you are under the age of 21, you will have "If you are under the age of 21, you will have to have a parent or legal guardian's co-signature in order to get a credit card. For parents or guardians out there though, that info will also on your credit report, so you have to be careful about that." Says Peck.

Perhaps the most notable change involves your interest rate. Your credit card company now has 45 days to notify you of a rate change and why it's changing.

"You will somewhere in the wording of the letter they send you, you will either have the option to either call or write a letter to opt out of that rate increase. Once you opt out of that, your rate will go back down but your access to that card will close." Says California Business Lawyer Steven C. Peck.

From clearer wording on bills to other stricter rules and regulations, some think the changes will make the decision between cash or credit a little easier.

"You shouldn't over draw you account, that's just going to cost you a lot of money, they have all kinds of penalties. So, probably have a place where they actually stop and say no- it would help people prevent getting themselves in too deep." Says Los Angeles Business Attorney Peck.

Continue reading "New Credit Cards Changes Go Into Effect on February 22, 2010" »

California provides a distinct and orderly process to sell real property
under a writ of execution. Code of Civil Procedure §§701.510, et. seq. This
method has a number of important safeguards for the debtor built in. These
include:
• Personal service of notice on the debtor;
• An opportunity for the debtor to respond;
• Title report or equivalent is obtained and reviewed;
• Fair Market Value and homestead exemptions are determined;
• Debtor given minimum 120 days from notice to sale; and
• Homestead Property must sell for at least 90% of determined Fair Market
Value.
Due to the strictures of this process, there are a number of reasons why a
judgment creditor might not obtain satisfaction in the end. Consider these
common issues:
• The execution method requires cash on sale or within 10 days and these
days, buyers with cash are looking for a better deal than 10% under fair
market value
• Buyers are not able to walk through and inspect the property before
buying resulting in a lower bid price, especially on questionable properties
• A mistake is made in the process, where the process must begin again
• The sale lacks the benefit of common open market sales like listings on
the Multiple Listing Service, aggressive marketing by a licensed real
estate agent, ability for buyers to obtain financing, inspections and repairs,
etc.
• The sheriff or levying officer has numerous responsibilities and cannot
devote any significant amount of time toward insuring completion of the
sale or other "special attention"
If you are in a situation where you have gone through an execution sale
without success or have a business or collection matter appointment of a receiver may well provide some satisfaction in your case.

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Continue reading "The Realities of Execution Sales in California" »

California provides a distinct and orderly process to sell real property
under a writ of execution. Code of Civil Procedure §§701.510, et. seq. This
method has a number of important safeguards for the debtor built in. These
include:
• Personal service of notice on the debtor;
• An opportunity for the debtor to respond;
• Title report or equivalent is obtained and reviewed;
• Fair Market Value and homestead exemptions are determined;
• Debtor given minimum 120 days from notice to sale; and
• Homestead Property must sell for at least 90% of determined Fair Market
Value.
Due to the strictures of this process, there are a number of reasons why a
judgment creditor might not obtain satisfaction in the end. Consider these
common issues:
• The execution method requires cash on sale or within 10 days and these
days, buyers with cash are looking for a better deal than 10% under fair
market value
• Buyers are not able to walk through and inspect the property before
buying resulting in a lower bid price, especially on questionable properties
• A mistake is made in the process, where the process must begin again
• The sale lacks the benefit of common open market sales like listings on
the Multiple Listing Service, aggressive marketing by a licensed real
estate agent, ability for buyers to obtain financing, inspections and repairs,
etc.
• The sheriff or levying officer has numerous responsibilities and cannot
devote any significant amount of time toward insuring completion of the
sale or other "special attention"
.

Continue reading "Sale of Real Property Under a Writ of Execution" »

The statutory remedy of selling real property under a writ of execution
provides a strict but orderly process that a judgment creditor may follow toward
satisfaction of the judgment. However, judgment creditors may consider the
process to be too complex and the cost prohibitive in light of the nebulous results
attendant to the statutory procedure.
This article discusses use of a court appointed receiver to sell real
property as an alternative to the statutory execution sale. Using a court appointed
receiver to sell real property offers a number of distinct advantages over an
execution sale:
• There is a greater degree of certainty that the property will sell under an
order appointing a receiver-often in the same amount of time (or less) as
a creditor's first run through an execution sale (i.e., about five months);
• Once the receiver is appointed, he handles all of the procedures
necessary to complete the sale with very little effort needed from the
creditor; and
• The receiver can sell the property on the open market, through a real
estate agent, to realize the highest return possible.
Despite the obvious advantages, appointment of a receiver is considered
a "drastic remedy" and many courts will not grant an order to appoint a receiver
unless there are extenuating circumstances and "good cause", such as:
• A previous execution sale against the property was unsuccessful;
• The net amount expected from an execution sale will not satisfy the
judgment in full;
• Non-debtor third parties own an interest in the subject property;
• The property includes a resident business that is also subject to execution
against an interest of the judgment debtor;
• The judgment debtor stipulates to appointment of the receiver in order to
get the greatest value for the property applied toward the judgment; or
• A fraudulent transfer of the property has been made or threatened, or
there are other circumstances indicating fraud or dissipation of the asset.
In the most general terms, the moving party should be prepared to show:
• That the other less drastic remedies provided by statute are inadequate
AND that appointment of the receiver will substantially improve the
outcome; OR
• That the receiver is necessary to preserve the interests of all concerned,
particularly if outside third parties have an interest in the property or there
are "badges of fraud" present.

Continue reading "Use of a Court Appointed Receiver to Sell Real Property" »

A contract is a legally enforceable agreement between two or more parties. So, how do you enforce it if it is broken by one of the parties?

That depends on how exactly the party breaches the contract. A minor, or nonmaterial, breach of contract entitles the non-breaching party to actual damages suffered. Therefore, if your mechanic used a different brand of oil that was of at least the same quality as that named in your contract, then you likely would not have a material breach of contract. You did not suffer any damages and may have, in fact, received a better product.

If, however, a party significantly or materially breaches a contract then the other party is entitled to either force the breaching party to perform his or her responsibilities pursuant to the contract or to pay damages for the breach. In the example of an auto mechanic adding oil to your car, if the mechanic failed to put any oil into the engine after cleaning it and your car broke down as a result of that mistake then you have suffered damages from the mechanic's material breach of your contract and you are likely entitled to damages.

Here are some things to think about when deciding whether a party's breach was material:

The extent to which the breach has caused the nonbreaching party a denial of benefits under the contract which he or she reasonably relied upon;
Whether the injured party can be compensated for the breach;
The likelihood that the breaching party will correct his or her failure. (When considering this likelihood it is important to consider all past performances by the party as well as any reasonable assurances the party has provided);
How the breaching party's behavior comports with fair business and good faith;
Whether the breach was under the breaching party's control or whether the breach was due to outside influences.
If a party materially breaches a contract then non-breaching party can consider the contract to be terminated.

Ultimately, a material breach of contract is one that goes to the very core of the contract. If you hire a videographer, for example, to take a video of your wedding and that videographer forgets his video camera and instead shows up with a point and shoot camera then the videographer has materially breached the contract. You hired him to make a video of your wedding, an event that cannot be recreated, and he did not do that. Since the videographer materially breached the contract you can consider the contract void and refuse to pay him.

However, it is important to remember that a material breach is a legal term and if you have any doubts about whether a breach was in fact material then you should contact your attorney. Otherwise, if the breach is not in fact a material breach then any failure to perform your own obligations pursuant to the contract could make you liable for damages!

Continue reading "Enforcement of a Broken Contractual Agreement" »

What Is A Writ Of Attachment And Why Do You Need It?

If you have filed a lawsuit, and want to make sure that the defendant's assets will be
available to satisfy a judgment, a writ of attachment allows you to levy on and obtain a lien against the defendant's California property. The writ of attachment establishes your lien priority-without it an unsecured creditor risks being subordinated to other liens imposed on the defendant's property prior to the creditor obtaining a judgment and perfecting its judgment lien.

A writ of attachment is available in a contractual action involving a claim or claims for
money. CCP §483.010(a). A writ of attachment is also available in an unlawful detainer actionto the extent of the unpaid rent at the time the action is filed plus estimated rent, computed at the lease rate, through the estimated date that the plaintiff will gain possession. CCP §483.020.

The claim must be fixed or ascertainable in an amount not under $500, exclusive of costs
interest, and attorney fees, but claims can be aggregated. CCP §483.010(a). The claim cannot be secured by real property unless, through no act of the plaintiff or the person to whom thesecurity was given, the security has become valueless or has decreased in value to less than theamount owed on the claim, in which case the writ of attachment is for the difference between the value of the security and the amount of the claim. CCP §483.010(b). Attachment is allowed on claims secured by real property or by fixtures under the Commercial Code. CCP §483.0 1D(b).

A writ of attachment encourages and promotes settlement, because it forces the defendant to seriously consider the merits of your claim. If you can obtain a writ of attachment, it is possible to deprive the defendant of the use of their assets you have attached-throughout the course of the lawsuit!

In collection cases, where the defendant is incurring business losses, concealing assets, or about to leave the state; or where several creditors are all trying to establish priority~a writ of attachment can quickly protect you from losing out on collecting what you are owed.

Continue reading "Awesome Prejudgment Collection Remedy: The Writ of Attachment" »

Times are tough. The economy has fallen off a cliff and has only very slowly begun to claw its way back up. In the State of California real estate and the construction trades are slow. Bills are piling up. The phones are starting to ring. And who's on the other end of the line is not your long lost sweetheart from whom you haven't heard in a billion years, but a debt collector with what seems to be serious in collection an overdue bill.

That's where the Fair Debt Collection Practices Act comes in.

This law was first passed by Congress in 1977. It has been amended seven times since, most recently in 2006. The law was adopted in response to abusive collection practices which, in turn, led to an increase in personal bankruptcy filings. The stated purpose of the act is to provide guidelines and accepted practices for debt collection agencies and debt collection attorneys when seeking to collect on legitimate debts.

The Act is also meant to grant certain protections to consumers, to shield them from unscrupulous debt collection practices, and to provide consumers with certain remedies against rogue debt collectors. It is important to note that the federal act is generally supported by complimentary state laws which vary from one state to the next.

The act extends to personal, family and household debts. Included under its protections are debts associated with the purchase of a vehicle, mortgage debt, debts associated with medical services, and money owed on credit card accounts.

What debt collectors are subject to the act? Lots of them. The act is specifically targeted to apply to any person or entity who regularly collects debts owed to third parties, including lawyers who regularly perform debt collection services. In-house collection departments are not generally included under the act. If, for example, you owe a local merchant a debt, the law will not regulate the merchant or prevent him from contacting you about the debt. If, however, the merchant employs an outside debt collection service, the law will likely will apply.

Here are some of the restrictions:

• Debt collectors may not contact neighbors, friends, relatives or employers of the debtor except when that party is a co-signer for the debt.

• They may not falsely threaten to refer your account to an attorney, harm your credit rating, repossess property or garnish wages;

• They may not repeatedly call at unreasonable times (before 8 a.m. or after 9 p.m.), unless you have given the debt collector permission to contact you during those hours.

• They may not call you at an inconvenient place (most commonly, contacting you at work in violation of a known policy of your employer or after being requested not call at work).

• Debt collectors may not inform your employer of the purpose of the call, unless first asked by the employer.

• They also may not use foul, abusive, or obscene language or employ racial slurs or insults, send letters which appear to have come from a court, seek collection fees or interest charges not permitted by your contract or by law, request post-dated checks with the intention of prosecuting if they bounce, sue in courts distant from where you live, or threaten you with arrest if you do not pay the debt.

Continue reading "Fair Debt Collection Practices Act: Let the Creditor Beware" »

Claim and Delivery is a provisional California Collection Law remedy that enables the plaintiff in an action for recover of specific, tangible personal proeprty in the defendant's possession to obtain possession of the property prior to judgment.

The Claim and Delivery procedure is most often used when the personal property sought is security for the repayment of a debt now in default. It is also used by California Collection lawyers to reclaim personal property which has been loaned, leased or bailed to another; or to obtain personal property which is the subject of a dispute over ownership.

Upon the filing of a complaint for Claim and Delivery the plaintiff shall seek a writ of possession as long as the plaintiff can show that it is more probable than not that he or she will ultimately obtain a judgment for the possesion of the personal property.

Continue reading "Claim and Delivery: An Action to Recover Specific Personal Property " »

The common count known as "book account" or "open book account" is based upon the indebtedness shown by a detailed statement kept by the creditor, which constitutes the principal record of one or more transactions between the creditor and the debtor.

Book account is defined in California Code of CivilProcedureSection 337a, must (1) arise form a contract or fiduciary relation, (2) show the debits and credits in connection with the relationship, (3) be entered in the regular course of business conducted by the creditor, and (4) be kept in a reasonably permanent form and manner (a) in a bound book, or (b) on a sheet or sheets fastened in a book or to backing, or (c) on a card or cards, or (5) be kept in other reasonably permanent form and manner.

Continue reading "California Collection Law: Common Counts Pleading - Book Account" »

The object of a Bill of Particulars, per California Collection Law, is to give the party demanding it reasonable notice of the items constituting the claim sued on so that he or she may prepare for trial.

Because the creditor need not set forth in a complaint on common counts the particular items of an alleged claim, the complaint does not usually provide the debtor with adequate notice.

Within ten (10) days after service of a written demand, the plaintiff must deliver to the defendant a copy of the accouint "or be precluded from giving evidence there ". See California Code of Civil ProcedureSection 454. Delivery has then effect of limiting the plaintiff's evidence to the items specified but does not constitute competent admissible evidence of them.

When a Bill of Particulars shows that the amount of the claim is less than that prayed for in the complaint, the bill limits recovery to the lesser amount.
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Continue reading "The Effect of the Demand for Bill of Particulars" »