Gilmore v. Hill

California Court of Appeal Jul 30, 1957 No. Civ. 17424Published

Before: Draper

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Holding. The court held that the trial court abused its discretion in precluding the plaintiff from presenting evidence, as the third amended bill of particulars provided sufficient detail to satisfy the requirements of Code of Civil Procedure section 454.

Issues

Whether the third amended bill of particulars provided sufficient detail to satisfy the requirements of Code of Civil Procedure section 454.
Whether the trial court abused its discretion in precluding the plaintiff from presenting evidence based on the alleged insufficiency of the bill of particulars.

Disposition. reversed

Quotations verified verbatim against the opinion

“Measured by the standards set forth in the reported decisions, the bill is amply detailed. Indeed, it is difficult to see how more detail could be given.”

“Even though practical considerations may indicate lack of success at trial, the litigant is entitled to present his proof under his detailed bill of particulars.”

DRAPER, J.

Plaintiff filed a creditor’s claim for $65,000 against the estate of Jay Maurice, deceased. Upon rejection of this claim by defendant administrator, plaintiff brought this action for the reasonable value of services rendered and goods furnished to decedent for a period of 11 years, pursuant to an alleged oral agreement by decedent to execute a will leaving her all his property. Defendant, later joined by interveners, demanded a bill of particulars, and when bill and amended bill were furnished, moved for further bills of particulars. On March 8, 1956, the case had been set for trial for April 16. After filing of the second amended bill, defendant moved for a further bill. This motion was granted April 2. The third amended bill of particulars was filed April 10. On the same day, defendant moved to preclude plaintiff from giving evidence, upon the ground that the third bill was insufficient. This motion was heard (by a judge other than the one who tried the case) and granted April 13. The case came on for trial April 16, and plaintiff was, pursuant to the order of April 13, precluded from giving evidence as to her account. Judgment went for defendant, and plaintiff appeals.

Appellant’s sole contention on appeal is that the third amended bill of particulars was adequate, and that therefore the order precluding evidence was an abuse of discretion.

Section 454 of the Code of Civil Procedure 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. The court or judge thereof may order a further account when the one delivered is too general, or is defective in any particular.”

We find no decision precisely fixing a standard of the detail required in a bill of particulars. However, it has been said that the purpose of the code section upon this subject is “to give the adverse party reasonable notice of the items

[883]

constituting the claim which he is required to meet, so that he may prepare for trial.”

(Ames

Gilmore v. Hill

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DRAPER, J.

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