![]() 2d 603, which discusses the previous section 426b under which particulars were sought by means of a demurrer for uncertainty-and that failure to state a cause of action can be raised at any time. 687, 692.)ĭefendant, if we understand him, seeks to argue that a complaint which alleges cruelty in general terms, although sufficient absent a demand, fails to state a cause of action once a demand has been made-referring to language in Heller v. It would be to the last degree oppressive to hold that a plaintiff must lose his cause of action because, though he furnished the copy of his account more than forty days before the trial, he had served it upon the sixth instead of the fifth day after demand." (McCarthy v. ![]() If the demandant receives the copy long enough before the trial to enable him to examine it and prepare his defense, so far as he is concerned the statute has fulfilled its usefulness. If the demand is not complied with, then, for the refusal or gross neglect, the prescribed penalty may be exacted. The language used by the Supreme Court in McCarthy is equally appropriate here: "In the simplification of pleadings it is designed to protect the adverse party from embarrassment upon the trial, by enabling him to demand and obtain in advance a detailed statement of the items charged against him. We think the same result follows under section 426b. prevented the defendant from preparing his defense." fn. By writ of mandate, the court was directed to exercise a discretion "in determining whether the failure to deliver the list within the statutory time. Superior Court, supra (1963) 214 Cal.App.2d 551, 561, the trial court had treated this provision as mandatory and rejected evidence. ) Similarly, section 20052 of the Elections Code requires a contestant to deliver a list of allegedly illegal votes at least three days prior to the date set for hearing an election contest under the sanction that "No testimony may be received of any illegal votes except those which are specified in the list." In Benson v. Under section 454 of the Code of Civil Procedure, a party who fails to file a bill of particulars within 10 days after demand therefor is "precluded from giving evidence thereof." As early as 1896, the Supreme Court held that, where the bill was filed one day late, but over 40 days prior to trial, the trial court had a discretion to allow evidence to be introduced, the court suggesting, also, that the remedy was by way of a pretrial motion to exclude evidence and not by objection at the trial. However, there is precedent for decision of the same point with reference to two other statutory provisions of the same class. We are cited to no cases construing section 426b in its present form, and our research has disclosed none. 4 We think the contention to be totally without merit. The sole argument is that, the amendment having been five days late, it was mandatory on the trial court to sustain the objection to plaintiff's evidence. ![]() It is not here contended that plaintiff's amendment, when served and filed, was insufficient in its allegations of specific acts. Plaintiff was granted an interlocutory decree and defendant has appealed. 3 that, at that time, defendant objected to evidence as to the specific acts and that such objection was overruled. 2 No further action was taken until seven months later, when the action came on for trial. Section 426b is barred from proving any acts of cruelty at the time of trial." fn. Nine days thereafter, defendant answered, denying the acts as alleged and alleging also that "plaintiff by failing to comply with C. 1 Fifteen days later, plaintiff filed her amended complaint, setting out sundry specific acts. Defendant husband duly filed his demand, pursuant to section 426b of the Code of Civil Procedure, for a more specific statement of the acts of cruelty relied on. Plaintiff wife filed suit for divorce, alleging extreme cruelty in general terms. The sole issue raised on this appeal relates to the construction and effect of section 426b of the Code of Civil Procedure. Gallagher for Defendant and Appellant.ĭavid L. ![]() ROBERT ELVIN KRAUSE, JR., Defendant and Appellant.ĭonald C.
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