DEFENDANT’S MOTION TO PRECLUDE EVIDENCE OF ACCOUNT PURSUANT TO CCP § 454
Velocity Investments LLC v. James Potter 25CV002473
DEFENDANT’S MOTION TO PRECLUDE EVIDENCE OF ACCOUNT PURSUANT TO CCP § 454
TENTATIVE RULING: The motion is DENIED.
The moving party failed to include in the notice of this motion proper notice of the Court’s tentative ruling system as required by Local Rule 2.9. Moving party is directed to immediately provide, by telephone call AND email, the missing notice to opposing party/ies forthwith. The requirements for requesting oral argument under Local Rule 2.9 remain in effect. However, the Court may grant belated requests for oral argument or continuance of hearing, made by any party who represents it did not timely receive the required notice, regardless of whether or not moving party is present at the hearing.
A. PROCEDURAL MATTER
Defendant James Potter (“Defendant”) moves, pursuant to Code of Civil Procedure section 454,3 for an order precluding Plaintiff Velocity Investments, LLC (“Plaintiff”) from giving evidence of the account alleged in the Complaint. The motion is made on the grounds that Plaintiff failed and refused to deliver a verified Bill of Particulars within ten (10) days after a written demand was served by Defendant.
B. LEGAL STANDARD
Section 454 is a discovery procedure outside of the Discovery Act dating back to early common law. (Weil & Brown, et al., Cal. Practice Guide, Civ. Proc. Before Trial (The Rutter Group 2026), Ch. 8 Discovery, § 8:1765.) It enables defendants who have been sued generally on an account to force a plaintiff to itemize the account on which the complaint is based. (Ibid.) Although interrogatories and depositions can now be used for the same purpose, the bill of particulars remains an alternative and supplemental procedure. (Ibid.)
The express language provides: “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.” (§ 454.) The court has power to make such an order at trial or any time beforehand. (Burton v. Santa Barbara Nat'l Bank (1966) 247 Cal.App.2d 427, 433
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C. DISCUSSION
Plaintiff’s Complaint asserts a single cause of action for breach of contract with a demand for $40,905.55. (11/24/25 Compl.) The Complaint alleges that, on October 31, 2022, Cross River Bank issued a Consumer Loan to Defendant, account number -7034. (Id., ¶ 13, Exh. A.) 3 All subsequent statutory references are to the Code of Civil Procedure unless otherwise specified.
Defendant agreed to repay amounts advanced, but breached the agreement by failing to make payments as agreed. (Id., ¶ 14.) The date of last payment was July 31, 2023. (¶ 16.)
Here, Defendant presents evidence that he served Plaintiff’s counsel of record with a formal Demand for Bill of Particulars (“Demand”) on April 28, 2026. (Declaration of James Potter (“Potter Decl.”), ¶ 2, Exh. A.) The Demand sought: (1) a line-item accounting to resolve a material $28,000 discrepancy between the alleged principal disbursement and the actual deposits made to Defendant, and (2) verification of the chain of title from Cross River Bank to Plaintiff. (Mem., pp. 3-4.)
The deadline for Plaintiff to respond to the Demand expired on May 13, 2026. (§ 454.) Defendant sent a meet and confer email to Plaintiff’s counsel on May 14, 2026. (Potter Decl., ¶ 5, Exh. C.) As of the date Defendant executed his declaration, Plaintiff had not responded to either the Demand or the meet and confer communication. (Id., ¶ 6.)
Plaintiff implicitly concedes the foregoing by failing to file an opposition to the present Motion.
As a starting point, the Court must first determine whether the present action is subject to section 454—i.e., whether the complaint sues generally on “an account.” “A demand for bill of particulars may be served on the plaintiff only in an action on ‘an account.’” (Weil & Brown, et al., supra, § 8:1768.) Defendant does not expressly address this point. Rather, Defendant’s argument and requested relief through his Motion assume that section 454 applies to the subject Complaint.
The Court does not find that the present Complaint is made on “an account” such that section 454 is applicable.
“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.” (Distefano v. Hall (1963) 218 Cal.App.2d 657, 677.) “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.’” (Id., § 8:1769.) Section 454 is not available where the complaint is for account stated or for damages for a breach of contract. (Distefano v.
Hall (1963) 218 Cal.App.2d 657, 677-78 [adopting reasoning that “an action for damages for a breach of contract is not an action to recover ‘items of account’ and that, accordingly, it was proper for the [plaintiff] to ignore a demand for a bill or particulars]; see also Ahlbin, supra, 100 Cal.App.2d at 648.) Where section 454 does not apply, a plaintiff may simply ignore a defendant’s demand. (Ibid.)
Here, the Complaint does not assert a common count cause of action. It asserts a breach of contract for a single specified account, upon which Defendant defaulted, and it pleads the specific amount owed as a result. This does not appear to be the type of Complaint that the benefit of the bill of particulars under section 454 is intended to benefit. Even assuming arguendo that section 454 applies to the instant action, where a plaintiff fails to deliver a bill of particulars in response to a demand, the consequence is that the Court may bar the plaintiff from
introducing evidence at trial in support of the account claimed. (McCarthy v. Mt. Tecarte Land & Water Co. (1896) 110 Cal. 687, 693.) The exclusion of evidence is not mandatory, and, in light of the foregoing analysis, the Court would not be inclined to exercise its discretion to order the evidence excluded here.
Based on the foregoing, the Motion is DENIED. This ruling is without prejudice to Defendant’s rights under the Discovery Act to request the specific information sought by his purported Demand.
Elena Flores Beteta v. French Laundry Restaurant 26CV000626 Corporation et al
DEFENDANT’S MOTION TO COMPEL ARBITRATION AND STAY THE PROCEEDINGS
TENTATIVE RULING: The motion is GRANTED. Plaintiff’s request for an evidentiary hearing is DENIED. Plaintiff is ordered to remit her individual PAGA claim to arbitration forthwith. Plaintiff’s representative PAGA claim is STAYED pending completion of the arbitration. Defendants’ request for sanctions under sections 128.5 and 128.7 is DENIED. A Review Hearing Re: Status of Arbitration is set for December 15, 2026, at 8:30 a.m. in Dept. A. The Case Management Conference on August 27, 2026 is VACATED.
The moving party fails to include, in the notice of this motion, the current version of the Tentative Ruling notice required by Local Rule 2.9, effective 1/1/26. The current version allows a party or counsel to request a hearing by calling the Court or emailing the Court, at JudicialReception2@napa.courts.ca.gov and providing specified information set out in Local Rule 2.9. The moving party is therefore directed to immediately provide, by telephone call AND email, the current Tentative Ruling notice explicitly required by Local Rule 2.9 to opposing party/ies forthwith.
The requirements for requesting oral argument under Local Rule 2.9 remain in effect. However, the Court may grant belated requests for oral argument or continuance of hearing, made by any party who represents it did not timely receive the required notice, regardless of whether or not moving party is present at the hearing.
A. PROCEDURAL MATTER
Defendants French Laundry Restaurant Corporation; French Laundry Partners L.P.; and KRM, INC. d/b/a Thomas Keller Restaurant Group (collectively “Defendants”) move, pursuant to the Federal Arbitration Act (“FAA”) Code of Civil Procedure sections 128.5 and 128.7, 4 for an order compelling the arbitration of Plaintiff Elena Flores Beteta’s (“Plaintiff”) individual Private Attorneys General Act (“PAGA”) claims against Defendants and staying Plaintiff’s representative PAGA claims pending completion of the arbitration. Defendants further move, pursuant to sections 128.5 and 128.7, to recover costs and fees associated with bringing the instant Motion to Compel Arbitration, in the amount of $5,000.
4 All subsequent statutory references are to the Code of Civil Procedure unless otherwise specified.
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