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Random interesting legal tidbits

Ways of getting your attorney fees paid

  • Suing a common carrier who was notified and failed to stop
  • Getting a permanent injunction in some states. For example, in California, B&P 17200 , which provided an additional basis for an injunction, allows for attorneys fees when an attorney provides a public good, one example of which is an injunction. See also CCP 1021.5.

If the company goes out of business (bankrupt or ceases operations)

When a corporation incurs debt, one of two things happens:

1) Bankruptcy
If a company is upside down like Fax.com (i.e. failed to retain enough assets to pay contingent liabilities like the FCC forfeiture), the fiduciary responsibility goes to the creditors, not stockholders, and you can pretty easily show fraudulent transfers.

According to the bulk transfer aspects of debt law, when a company is upside down -- liabilities exceed assets -- it triggers a host of things, including a fiduciary duty to creditors over stockholders. Contingent liabilities, like judgments and FCC fines, as well as pending lawsuits count in that equation.

Fax.com has been upside down for a long time. You can rollback a lot of things. Once the company is upside down, they can't take out retained profits, earnings. distributions, etc. If they do, they become PERSONALLY liable for such transfers.

2) No bankruptcy
If there is no bankruptcy, and the company simply ceases operations or is dissolved, the debts of the company become debts of the stockholders.

However, when a corporation cannot pay its creditors, then the shareholders become liable TO THE EXTENT that they received distributions. That's it for shareholder liability  UNLESS there is another basis for finding a shareholder liable, such as piercing the corporate veil, alter ego, etc.

Finding a local process server

Complaint (logistics)

  • in small claims, bring just one copy. they'll give you pack service copies (with a stamp on them showing they are service copies) and copy for your files
  • CCP 116.340(a)(3) allows substituted service without having first tried personal service

Motions (logistics)

  • In small claims, you file a motion form which is returned with your court date. you can then serve the other parties with the documents.
  • In big court, you generally pick a date you want to go in with your motion (check with the court).
  • See CCP 1005; you have to have the motion filed (and served on all parties) with the court 16 court days before the hearing.
  • so you serve on all parties and get a POS before filing with the court
  • the proof of service filed with all parties should be an unsigned proof (since you can't sign it until it is sent)
  • they must serve and file opposition within 9 court days and you can reply in 5 court days.
  • you can combine motion requests on one paper or create separate ones. you can almost always get away with combining into one motion because the clerks aren't going to read the request. And it's much less work for the clerks.
  • If you have a proposed order with your filings, you should include a sase so the court can mail you the order.
  • Each separate item (each item with a cover page) should be stapled together
  • Always put your name/address in the upper left corner, including proposed orders. So in case things get lost, they can call you.
  • when filing always bring at least one copy of stuff (e.g., original and a copy). Stamp one as "Original". Stamp the other as "COPY". The court will stamp the original and file it and stamp your copy to return to you.
  • Order of docs: notice of motion should be the first, then declaration, then proposed order, then POS. Each document with a cover page (as well as the POS), will get a unique document number in the case docket. So everything with a staple, or standalone, gets a document number entered in the computer.
  • Always serve all parties with all papers and make separate copies for each party even if they are the same person, e.g., the company and person served would be the same person.

Perjury vs. contempt

Contempt

  • You can get terminating sanctions anytime you get a court order and the order is not obeyed. Judges don't mind when someone breaks the law but the get pissed if their orders are not followed. You will probably get one more chance before the judge issues terminating sanctions.

Venue

  • if you file in the wrong venue, your opponent gets to pick the venue but must select a valid venue within the state

Personal jurisdiction issues (from the Covington case against fax.com):

D.     Personal Jurisdiction Over Mr. Kevin Katz and Mr. Eric Wilson is Proper.

       [*6] Covington seeks summary judgment against corporate officers Kevin Katz and Eric Wilson in their individual capacity. The District of Columbia extends personal jurisdiction over    nonresidents who (1) transact business in the District of Columbia or (2) cause "tortious injury" in the District by an act or omission elsewhere if the defendant "regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial business revenue from goods used or consumed, or services rendered in the District of Columbia." See D.C.Code Ann. 13-423(a)(1), (4) (2003). In addition, there must be some "act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Hanson v. Denckla, 357 U .S. 235, 253 (1958) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 319 (1945)).

   Fax.Com purposefully availed itself of the privilege of conducting activities in the District of Columbia by sending 1,634 faxes to Covington & Burling. Because Mr. Katz and Mr. Wilson are the only corporate officers of Fax.Com and are involved with all functions of the company, personal jurisdiction can also be extended to them. Defendants rely on Flocco v. State Farm Mutual Automobile Insurance Company, 752 A.2d 147, 163 (D.C.2000), stating that "[p]ersonal jurisdiction over the employees or officers of a corporation in their individual capacities must be based on their personal contacts with the forum and not their acts and contacts carried out solely in a corporate capacity." Thus, "the corporation ordinarily insulates the individual employee from the court's personal jurisdiction." Id. (emphasis in original). However, in this case, Mr. Katz and Mr. Wilson are more than employees of the corporation, they are the only corporate officers of Fax.Com and set company policies and procedures. See Katz Depo. at 62; Wilson Depo. at 31-32. They also admit they are active in day-to-day operations of the company. See Katz Depo. at 7, 8; Wilson Depo. at 7; Katz and Wilson Responses to Request for Admission No. 6. Due to their involvement and supervision of all aspects of the company, Mr. Katz and Mr. Wilson are more than mere employees of Fax.Com and are not insulated from this court's jurisdiction.

 

Power of a state court to enjoin a defendant

A state court can enjoin any party properly before it from engaging in any particular behavior REGARDLESS of where that behavior takes place.

That means a California state court which has jurisdiction over a junk faxer in Florida can order that junk faxer not to send junk faxes ANYWHERE in the country since state courts get to enforce the federal law and the power to issue that order comes from the federal statute.

Federal district courts

In some ways, their power is more limited since their orders only reach within their district. So you have to register in the fed court you want enforcement from. that is easy.

Subpoena costs

There are proscribed rates in California, under the Evidence Code sec 1563, referenced in the Discovery Act at sec 2020(d)(4).

Bascially, you send a subpoena to the custodian of records, and usually the custodian furnishes copies of the subpoenaed records. The custodian is entitled to be paid the "reasonable costs" actually incurred. Payment is supposed to be demanded simultaneously with delivery of the records. Look at CCP 2020(f) and Evid. Code 1563(b) (2),(6).

Under Evid. Code 1563(b)(1), "reasonable" means $24 per hour, per person, for the clerical expense in locating the records and making them available; also, copying costs of .10 per page, or .20 per page if copied from microfilm; also, actual shipping or postage charges.

In addition, there is language that you "reasonable costs" includes actual costs in retrieving the records and returning them to storage. I can't remember off the top of my head if there are any cases on that.

You can have some fun with Evid. Code sec. 1563(b)(4) which provides for a put up or shut up method of challenging charges. We used it against Sprint, and they shut up.

Here's the whole subsection:

The requesting party may petition the court in which the action is pending to recover from the witness all or a part of the costs paid to the witness, or to reduce all or a part of the costs charged by the witness, pursuant to this subdivision, on the grounds that those costs were excessive. Upon the filing of the petition the court shall issue an order to show cause and from the time the order is served on the witness the court has jurisdiction over the witness. The court may hear testimony on the order to show cause and if it finds that the costs demanded and collected, or charged but not collected, exceed the amount authorized by this subdivision, it shall order the witness to remit to the requesting party, or reduce its charge to the requesting party by an amount equal to, the amount of the excess. In the event that the court finds the costs excessive and charged in bad faith by the witness, the court shall order the witness to remit the full amount of the costs demanded and collected, or excuse the requesting party from any payment of costs charged but not collected, and the court shall also order the witness to pay the requesting party the amount of the reasonable expenses incurred in obtaining the order including attorney's fees. If the court finds the costs were not excessive, the court shall order the requesting party to pay the witness the amount of the reasonable expenses incurred in defending the petition, including attorney's fees.


Subpoena tricks

  • There is no extra burden (justification) required to subpoena a witness vs. records. And you don't have to pay the witnesss fees till later (you have to offer them). So if you want the records early delivered to you, check the "required as a witness with the records" and then mention in the document request that you can be excused from appearing if you produce the records 15 days from date of service.
  • If they don't comply, either do an OSC/motion to compel (have the judge sign the OSC), or if you are at trial (since small claims subpoena are actually witness+documents at trial requests, have the judge sign an order like this one (which causes your case to be re-calendared):  Order to comply with subpoena
  • Under CCP 1992, a nonparty deponent who disobeys a deposition subpoena is subject to the statutory penalty and the payment of damages, which is set out in the statute. Its $500 plus damages. A witness who disobeys a subpoena forfeits to the party aggrieved the sum of $ 500 and all damages caused by the witness's failure to attend. As the statute says, you recover this in an independent action, which means you file another case in small claims court.

    Also, pursuant to CCP 2020(h), a nonparty deponent who disobeys a deposition subpoena in any manner described in CCP 2020(g) may be punished for contempt under CCP 2023 without the necessity of a prior court order directing compliance by the witness. You can always ask the court to hold the person in contempt.

    The remedy is usually had by filing a motion. For a motion, you simply fill out form SC-105. Call it a motion to compel. You ask the court to make an order compelling whatever it is you want done. For the declaration you say that (1) all the facts are of your own personal knowledge (2) you went through the process of getting a subpoena (3) you went through the process of serving the subpoena (4) the deponent failed to obey the subpoena. It's that simple. The court will set a hearing date for you. Under Rule 314(a), no points & authorities are required.

    Since an entity can only act through its agents, and is only capable of violating an order if its agents fail to act, an order directed at a corporation is binding on whichever corporate officer is responsible for compliance with that area of responsibility. He can personally be held in contempt, whether specifically named in the order or not. See Ex Parte Chambers, 898 S.W.2d 257 (Tex. 1995); Wilson v. United States, 21 U.S. 361 (1911); United States v. Laurins, 857 F.2d 529 (9th Cir. 1988), cert. denied, 492 U.S. 906 (1989).

  • Witness fees are controlled by CCP 1987(a) and Gov't Code 68093. $35 per day, .20 per mile to and from -- this is for personal appearance. For business records, pay costs for preparing and providing record IF witness submits an itemized statement of costs. YES, if you prevail, you get this back as costs from the losing party -- see CCP 1033.5
  • Generally, a witness who actually lives in California at the time of service must appear. CCP 1989. California residents at the time of service may be compelled to attend before *any* court, judge, justice, or other authorized officer, *anywhere* in the state. CCP 1989. The statute is written in the negative, but it is clear enough.

Financial subpoena records objections

Out of state depositions

Small claims OSC re: contempt

  • if Defendant doesn't return the assets form (or returns it with lies or omissions), he's in contempt. Says so right in the statute: CCP 116.830(d). To do this, give the clerk an OSC/contempt order for the judge to sign asking him to appear and explain why he shouldn't be held in contempt accompanied by your affidavit of the facts saying you haven't received the form and you tried in good faith to get the form and citing the CCP statute authorizing contempt. Tell the clerk will have the judge sign it and set a date for the OSC hearing. You then mail the signed OSC notice on the Defendant and you file the proof of service with the court. At that point, you're set.
    • if the defendant appears,  he'll be held in contempt. He'll be arrested at that point with bail set at the judgment amount plus interest.
    • If the defendant doesn't appear, a bench warrant will issue for his arrest with bail set at the judgment amount plus interest.

    If you've sent them a small claims subpoena that was stamped by the court, that is already a court order. You get to go directly to contempt. See CCP 2020(h). I've verified our pretty conservative Small Claims Commissioner would do this and not ask you to do an OSC/compel first.

    Note that small claims commissioners don't have contempt power, only judges. So they can't sentence the deadbeat to 5 days in jail/$1,000 fine like a judge might.

    So I asked our comissioner about the OSC case since the clerks working there have never seen one (in 10 years).

    For small claims, unlike for superior court, you'd file the OSC re: contempt proposed order and your affidavit with the clerk. Judge will sign it the OSC without a hearing if he likes your affidavit. You then serve the signed OSC on the deadbeat. Affidavit should state the facts and your attempts to get the stuff and what happened; also any dates the deadbeat says he's available to appear.

    if he doesn't appear at the OSC hearing, the judge will issue a bench warrant for his arrest assuming you appear and you have proof of service.

    if he does appear and doesn't bring the goodies you asked for (assuming they are discoverable), the judge might ask him to come back tomorrow with the stuff. otherwise, he might get arrested with a high bail amount. For a party, this might be the judgement plus interest. For a nonparty, I don't know what they'd set the bail at or who gets to keep it.

    You can do the same thing if they don't return their statement of assets form.

    If you send the debtor interrogatories post judgment, then i believe that will definitely require an OSC/compel before the OSC/contempt.

    If person doesn't respond, judge can order him back in court the next day and keep repeating every day until he complies or he doesn't show. If he doesn't show, you get the bench warrant and win.

OSC re: contempt: who gets arrested

If you expect non-compliance to the OSC re: contempt on a corporation, serve it on the person you want arrested. Who the warrant is issued for is decided at the OSC hearing when no one shows up for the corporation. The decision probably will depend a lot on who was served with the OSC. If it was a major officer of the corporation, it is pretty easy. If it was someone less important, you would argue that it be the president and it would depend somewhat on what evidence you had showing the president was involved with the whole matter and must have known about the hearing. The judge might well decide that only a person that was served with the OSC can be arrested. Anyone who had knowledge of the hearing, had the ability to attend, had a responsible position could be sentenced to jail for failing to attend. But, again, it depends a lot on the facts about who was served, etc.

Collections

  • Instead of doing an ORAP, you can do interrogatories and subpoenas so that is much more efficient. you can do 35 questions and more if you aren't jerking the guy around. Using that, you get a basis for his assets. If he moves things, you can then use other subpoenas to find out where they moved to then grab them there. See CA Codes (ccp708.010-708.030) for the interrogatories and CA Codes (ccp708.110-708.205) for the Orap. personal service creates a lien on all personal property for 1 year.
  • at ORAP, you can compel 3rd party attendance at an ORAP
  • See TCPA Litigation for interrogatories and motion to compel.

Lawsuit costs

$5 to 10K for very simple. 20-100k medium 100 to 200k big.

Foreign business records protection acts

Worthless. See GlaxoMotionCompel

Geisthomsipatriotact

Business Records Protection Act

Appeal a vacate request

While the Code of Civil Procedure section 116.710(a) denies Plaintiffs the right to appeal a Small Claims Judgment, there is no prohibition against an appeal of a Request to Vacate.

Further, the Code of Civil Procedure section 1294 specifically states that “An aggrieved party may appeal from: … (b) An order dismissing a petition to confirm, correct or vacate an award.”

Disobeying a discovery orders/subpoena (p. 8E-63, p. 8E-105)

  • file a Motion to Compel [8:609.1, 8:787] with a declaration in support showing good cause (only required if it is a party) and if sanctions are desired, (b) facts indicating a good faith attempt to resolve [8:844]
  • Serve the motion via mail.
  • The court will hear the motion 
  • If you win, the court will sign your proposed OSC re: an order to Comply and and must award monetary sanctions against the loser unless substantial justification [8:717.1, 8:845].

Discovery inaction (practical tips)

If they don't deny the request for admissions, each and every question is deemed at admitted. that will be the basis of my msj (but in calif, you need to get a court order first). Also, the fact that they failed to respond to the discovery means they won't be able to offer testimony.

Subpoenas [8:535 general; 8:609 is sanctions]

  • You must specify compliance date which MUST be no sooner than 20 days after issuance of the subpoena or 15 days after service of the subpoena [8:545]
  • If does, comply with Motion to Comply, then use this section.
  • For a subpoena, you can skip the above steps and start here because a subpoena is a court order [8:822]. See also CCP 2020(h).
  • They recommend [8:609.2] you do the above procedure (Motion to Compel) because, unless the party is a known scumbag, judges will be reluctant to issue sanctions if they haven't first tried to convince the party to behave. But it is not theoretically necessary since subpoena is an order [8:610, 8:822]
  • These 3 remedies are available against nonparties who flout the discovery process [8:609, 8:617.5]:
    • motion to compel [8:609.1] (above)
    • Contempt [8:610, 8:852, and for parties 8:862]
    • Civil damages action for $500 plus damages under CCP 2020(h) and CCP 1992 [8:618]
  • If it is a party that is disobeying, the following sanctions are also available:
    • Issue sanction [8:862]
    • Evidence sanction [8:863]
  • If no compliance, choose one or more of the above remedies.
  • For contempt,  file the affidavit with the court [8:612] and the proposed OSC re: Contempt  for the judge to sign. [8:612]  Affidavit should should explain the disobedience and that the party got the subpoena. The proposed OSC should explain the sanctions that are sought. 
  • Take the signed OSC (with the date of appearance and the judges signature) and the affidavit and serve it PERSONALLY on the witness [8:613]
  • The hearing will be before the law & motion judge.
  • You then have a hearing on whether the sanctions requested in the OSC should be granted.
  • If a contempt sanction is sought, the contempt order issued by the judge must recite the specific facts giving rise to contempt [8:615]
  • The contempt order is a fine of up to 1K or imprisonment up to 5 days [8:616]. Alternatively, he could issue civil contempt which is jail until agree to comply [8:616]
  • A broad range of sanctions can be sought in the OSC re: contempt under CCP 2023(b) [8:852, 8:862]:
    • CCP 2023(b)(5): Contempt up to 5 days in jail and/or a fine of up to $1,000 per contempt. Must be proved it is willful and the moving party must establish the facts beyond a reasonable doubt.
    • CCP 2023(b)(2): Issue sanction under where it is construed as you claimed and (c) good cause for the production (only if they are a party to the action)
    • CCP 2023(b)(3): Evidence sanction prohibiting them from introducing the evidence (only if they are a party to the action)
    • CCP 2023(b)(1): payment of attorney fees and expenses incurred as a result of the conduct

    OSC Contempt Forms: 

  • Wilson OSC Contempt
  • Wilson OSC Contempt Affidavit
  • fax/action/WilsonOSCExhibits.pdf

    Bench Warrants

  • WilsonBenchWarrantApplication2005_02_03.pdf
  • WilsonBenchWarrantIssued.pdf

     

    • For contempt, file a noticed motion [9:350, 9:355] for an OSC re: contempt to be issued. file the affidavit with the court [9:713] and the proposed OSC re: Contempt  for the judge to sign. [8:854]  Affidavit should should explain the facts and that the party got the subpoena. The OSC should explain the sanctions that are sought. 
    • for small claims, you can apply for the OSC ex parte. The OSC is signed and a hearing date assigned. Then you personally serve that on the person.

Contempt types

  • See Contempt of Court
  • Criminal contempt: punish for a past act that they were forbidden to do.
  • Civil contempt: coerce to perform an act, e.g., IT IS ORDERED holding Defendant P. Doulgas Combs in civil contempt of court for the willful disobedience of a subpoena that he received.
  • “The distinction between refusing to do an act
    commanded,—remedied by imprisonment until the
    party performs the required act; and doing an act
    forbidden,—punished by imprisonment for a
    definite term; is sound in principle, and generally,
    if not universally, affords a test by which to
    determine the character of the punishment.”
  • Indirect contempt: witness’s failure to obey a subpoena may not be summarily punished because the reason for the witness’s absence is not within the personal knowledge of the judge.
  • Direct contempt: “When any contempt is committed in the immediate view and presence of the court, the court may punish it summarily by fine, or imprisonment, or both.”* MCL 600.1711(1); MSA 27A.1711(1). Thus, when direct contempt occurs, the proceedings are often referred to as “summary contempt proceedings.”
  • A. Direct Criminal Contempt
    The elements of direct criminal contempt are:
    • the wilful doing of a forbidden act, or the wilful refusal to comply with
    an order of the court,
    • that impairs the authority or impedes the functioning of the court,
  • • committed in the immediate view and presence of the court,
    • where the court seeks to punish misconduct that has altered the status
    quo ante so that it cannot be restored, or the relief sought by the original
    court order can no longer be obtained, or
    • order in the courtroom cannot be restored unless criminal contempt
    sanctions are used.
  • B. Direct Civil Contempt
    The elements of direct civil contempt are:
    • the doing of a forbidden act, or the failure to comply with an order of the
    court,
    • that impairs the authority or impedes the functioning of the court,
    • committed in the immediate view and presence of the court,
    • where the court seeks to coerce compliance and the contemnor is under
    a present duty to comply with the court’s order, is in present violation of
    the court’s order, and still has the ability to perform the act ordered by
    the court, or
    • it is still possible to grant the relief originally sought by the court order,
    or
    • it is still possible to restore order in the courtroom.
  • C. Indirect Criminal Contempt
    The elements of indirect criminal contempt are:
    • the wilful doing of a forbidden act, or the wilful refusal to comply with
    an order of the court,
    • that impairs the authority or impedes the functioning of the court,
    • committed outside the immediate view and presence of the court,
    • where the court seeks to punish past misconduct and civil contempt
    remedies are inappropriate (the contemnor is not under a present duty to
    comply with and is not in present violation of the court’s order, the
    conduct has altered the status quo ante so that it cannot be restored, or
    the relief sought by the original court order can no longer be obtained).
  • D. Indirect Civil Contempt
    The elements of indirect civil contempt are:
    • the doing of a forbidden act, or the failure to comply with an order of the
    court,
    • that impairs the authority or impedes the functioning of the court,
    • committed outside the immediate view and presence of the court,

all orders and judgments of courts must be complied with promptly"; those who disobey "generally risk criminal contempt even if the order is ultimately ruled incorrect

Rule on service

  • notice is the key factor: International Litigation & Arbitration Newsletter Newsletter - Volume 3, Issue 5 - July 2004
  • general rule is must serve like a summons (formally) until they enter an appearance (file something with the court and pay a fee)
  • only if defendant authorizes his attorney in writing to accept service, you can serve the attorney.
  • Once the attorney makes an appearance, they can be served.
  • can't serve by fax unless they agree in writing (see the POS form)
  • you can always serve the registered agent by personally delivering it to their address; certified mail may fail if they refuse it, but they can't refuse a dump at their address.

Hard to serve defendants

  • It's easier to serve them in federal court. FRCP Rule 4(f)(3) allows service in any manner directed by the court so long as the method of service does not contravene an applicable international agreement and is reasonably calculated to give notice. In federal court in the Ninth Circuit, as a result of the Rio Properties Inc. v. Rio International Interlink case in 2002, you can serve them via email if there isn't any other way. See CATCH ME IF YOU CAN: SERVING UNITED STATES PROCESS ON AN ELUSIVE DEFENDANT ABROAD. In the Rio case, they used email, service on an agent, and service on their attorney.
  • California has CCP 413.40 which says:
    • Where no provision is made in this chapter or other law for the service of summons, the court in which the action is pending may direct that summons be served in a manner which is reasonably calculated to give actual notice to the party to be served and that proof of such service be made as prescribed by the court.
  • Also CCP 415.40:
    • A summons may be served on a person outside this state in any manner provided by this article or by sending a copy of the summons and of the complaint to the person to be served by first-class mail, postage prepaid, requiring a return receipt. Service of a summons by this form of mail is deemed complete on the 10th day after such mailing.

International service

  • Hague convention on service abroad: HCCH Full text
  • Note: You can't serve a subpoena duces tecum under Hague; only a complaint!
  • To get subpoena done, get your local court to issue a Letters Rogatory that you prepare requesting the court in Ontario for assistance.  Judge in small claims should be able to sign the letter. Nothing that prohibits this.
  • Hague Conference on Taking Evidence Abroad Legal Language Services
  • Note: Canada s not a party to the Convention of March 18, 1970, on the
    Taking of Evidence Abroad in Civil or Commercial Matters! see lse_20catot_e
  • Quebec has a Business Concerns Records Act that prohibits any business records from going out unless authorized by a Quebec court.
  • US State department info: Obtaining Evidence Abroad
  • see SERVICE OF PROCESS ABROAD
  • International Litigation & Arbitration Newsletter Newsletter - Volume 3, Issue 5 - July 2004 points out the following:

    Burda Media, Inc. v. Blumenberg
    No. 97 Civ. 7167, 2004 U.S. Dist. LEXIS 8804 (S.D.N.Y. May 18, 2004)

    The court emphasized that the Federal Rules of Civil Procedure “stress actual notice, rather than strict formalism” and that “there is no indication from the language of the Hague Convention that it was intended to supersede this general and flexible scheme.” Thus, the court found that it was within its discretion to decide if service was properly perfected under the Hague Convention where Plaintiffs attempted in good faith to comply with it and where Defendant received sufficient notice despite a technical defect.

    In the instant matter, “the failure of compliance was solely on the part of the French authorities.” Further, Defendant never claimed that “he was not given actual notice of the lawsuit that had been filed against him.” Thus, the court held that Defendant “may not void the judgment on the grounds that the French authorities failed to complete the Certificate before returning the USM-94 to [Plaintiffs].”

  • Great pages on service at www.state.gov. For Canada, can use International Registered Mail. See Judicial Assistance in Canada for details. 

  • Canadian service:

They will do the service (in my cases a subpoena), if I send $50.00 (Canadian) and complete and send a form "USM 94" (which is available on the net or at the US Marshall's office), or at http://www.hcch.net/e/conventions/text14e.html. Mail the $50.00 w/completed form and the Orig/copy and 1 xtra copy to - Minister of Finance, Ontario Court of Justice, 393 Main Street, P.O. Box 1208, Haileybury, Ontario, Canada P0J1KQ...therefore, the company or person (s) have no excuse for not responding...

  • The 50 signatories to the Hague Convention are: Antigua and Barbuda, Argentina, Bahamas, Barbados, Belarus, Belgium, Botswana, Bulgaria, Canada, China, Cyprus, Czech Republic, Denmark, Egypt, Estonia, Finland, France, Germany, Greece, Ireland, Israel, Italy, Japan, Korea, Kuwait, Latvia, Lithuania, Luxembourg, Malawi, Mexico, Netherlands, Norway, Pakistan, Poland, Portugal, Russian Federation, San Marino, Seychelles, Slovak Republic, Slovenia, Spain, Sri Lanka, Sweden, Switzerland, Turkey, Ukraine, United Kingdom, United States, and Venezuela.

Insurance issues

See the Junk fax Q&A for the question on insurance. Basically, you're entitled to know whether the Defendant has insurance.

Interestingly, is that if the sender goes bankrupt you can reach its insurance; insolvency of the insured does not reduce the carrier's obligation and in (I believe) all states one can sue the insurance company directly where the insured is in bankruptcy.  This is a matter for the state insurance code.

Marc S. Mayerson of spriggs.com is an expert on these issues.

See also Insurance Scrawl and Insurance Scrawl Blast Fax -- Policyholders Continue to Obtain Defense Coverage.

Service on out of state company

In California small claims, you have to serve the company in state. So if the out of state company doesn't have a California presence, you can serve the California Secretary of State. This works for companies located in other states and in any other country! So you can sue comapnies in Canada who send you a junk fax in California.

Here's the form to do that for small claims. Here's an editable on for Santa Clara County: OrderToServeSS.PDF

You hand it to the clerk and the judge signs it and returns it to you. No hearing is needed.

Then you have to send the form and the complaint and have a private process server actually Serve the Secretary of State with the 2 documents and a check for $50 for them to serve the party. 

here is the latest fee schedule for the Sacramento Sheriff: civil_fees. But they say it is $60 for their fee (two documents served) plus $55 for the secretary of state. But the secretary of state says government code 12197 sets the fee at $50. The latter is correct.

Here are instructions (see the second page here):

Serving an out of state corporation using the California Secretary of State

The orange county version is a bit more complete:

Serving an out of state corporation using the Secretary of State

Service on a PO Box

As for USUAL MAILING ADDRESS and PMB (Private Mail Box)

The statute to start with is Cal Code Civ Pro 415.20. The case to start with is Ellard v. Conway (2001) 94 Cal.App.4th 540, 545-547, 114 Cal.Rptr.2d 399, 402-403.

In Ellard, substitute service was proper where a process server first attempted to personally serve defendants at their last known residential address, and, upon learning they no longer lived there, obtained a forwarding address from the U. S. Postal Service.

This amounted to reasonable diligence in attempting personal service thus making substitute service available.

Substitute service at a private/commercial post office box was proper, because that was the forwarding address provided to the Postal Service, thus making it defendants' "usual mailing address,"

Also, the manager of the facility knew the defendants and told the process server they received mail there.

Under the circumstances, it was more likely than not the manager would deliver the summons and complaint, and no facts suggested personal or substituted service was available at any other address or on any other individual.

Thus, CCP 415.20(b) authorized substitute service on defendants at their private post office box.

Many cases have followed Ellard, most are unpublished California cases.
There is a good federal case that followed Ellard. I say good because Ellard itself actually distinguished a federal case that went the other way.
The case is Smilde v. Melchner, No. C-00-2687 JCS (N.D. Cal. Feb. 15, 2002).
2002 U.S. Dist. LEXIS 3809, and it discusses the matter at some length.

Subpoena results and time frame

practically speaking they end up sending you the info you request directly.

but by default, it's supposed to be sent to the court, but I've NEVER seen this (except when they are a party and they bring it with them).

But you can over-ride the default simply by specifying it in the subpoena itself.

The 15/20 day minimum time period for compliance is in the calif ccp. 2020(d)(1). 20 days from issuance, 15 days from service, whichever is later.

Out of state service of a subpoena/ Domestication

Here's an example for Georgia where i needed something from Suntrust bank

  • In speaking with an attorney service in Georgia, they advised me they would need a certified copy of the California Subpoena on the Georgia bank. They will then process a Georgia civil subpoena and the court will issue the Georgia subpoena based on the California one. No hearing or Motion will be required. There will be a fee involved, but since I did not know which county in Georgia, I don’t know the amount since they vary from county to county.

Craig Robinson at Accurate Attorney Services (678) 597-1353.

$8 check to bank for processing
$40 for them to get the civil subpoena
$45 to serve it on bank
http://www.accurateattorneyservices.com/

In general, pick the state with jurisdiction over the party/nonparty:

You don't have to domesticate it in Ca... you can domesticate it in any state that has general jurisdiciton over Verizon... such as Texas.

A subpoena is a directive, under the authority of the court, to an entity to provide documents or information, sit for a deposition, etc. A person is not required to submit to such a request unless the court making the request has personal jurisdiction over them. That's civil procedure 101.

Find ANY state with personal jurisdiction over the phone company, shop for the one with the most hospitible domestication of subpoena rules, and domesticate it.

That's the way the process works. Use it.

Study this article carefully:

http://www.utahbar.org/barjournal2000/html/january_february_2001_2.html

 

Bad apple attorneys

  • crime fraud exception to the attorney-client privilege (see Crime-Fraud Exception Defined; California Evidence Code section 956)
  • the id of the client is not privileged and is discoverable

Out-of-state collections

  • if you have a small claims judgment, you may not be able to get it sister-stated in another state. But you also might be able to file in superior court to consolidate the judgments, then that may be able to be sister-stated.
  • if they are out of state, they don't have to comply with a subpoena and if they don't accept service, could be liable if they do.
  • personal records (state or national bank, brokerage, doctor), must notify the consumer through a special notice. due to bank privacy laws.
  • if accept service (lawyer or person authorized to accept service) then there is no controversy.
  • in superior court, can serve via return receipt if they accept it.
  • in small claims service, says Defendant must be served in california.
  • 116.340(d) on small claims service on the Defendant.

Subpoena requests on consumer accounts: Financial and phone records

  • Serving the consumer
    • 982a155 form, but instead use this Acrobat-enabled Version: NoticeToConsumer.pdf
    • a copy of the subpoena.
    • if the consumer is NOT a party to the action, then include a "Notice of Privacy Rights"
    • Must serve 10 days before production of records are required
    • He can then object with a motion to quash and we have a hearing to talk about it.
    • Can get a court order to shorten the time or waive notification of the consumer if there is "good cause"
  • Serving the custodian of the records
    • Must wait at least 5 days after serving consumer
    • Must give 15 days to produce (i.e., before the due date)
    • Production must be at least 20 days after subpoena issued and 15 days after being served
    • 982 form,
    • Proof of Service of that form on Heysek (and the privacy rights if applicable); for phone records, a consent to release is required
    • a copy of the subpoena,
    • a certification of compliance: "I hereby certify that the applicable provisions of the Right To Financial Privacy Act of
      1978, 12 U.S.C. Secs.3401-3422, have been complied with as to the..." and "Pursuant to the Right To Financial Privacy Act of 1978, good faith reliance upon this certificate relieves your institution and its employees and agents of any possible liability to the customer in connection with the disclosure of these financial records." see: http://www.dol.gov/ebsa/oemanual/cha33_appP.html. This is a handy form to use:  rfpa_certificate
  • Detailed information is in Rutter Group: Civil Proc. before Trial (see [8:580])
  • Also good is: GENERAL GUIDELINES FOR RESPONDING TO "RECORDS ONLY"
    DEPOSITION SUBPOENAS UNDER CALIFORNIA LAW

Statement of assets/ORAP

  • Virtually all people fail to fill it out. That gives justification for you to get the judge to ORDER an ORAP which if he doesn't show up, then you can get him arrested.

Assignment of judgments

  • Yes, the people who win may assign judgments to you. It requires two items: 1) An assignment agreement (a contract - do not file this with the court); and 2) An acknowledgement of assignment which must be served on the debtor(s) and filed with the court.

Misc litigation

  • RICO is an interesting law that might be handy for these cases
  • Malicious prosecution suits are relatively hard to prove and win (in case you've been threatened). They have to prove malicious intent.
  • fax.com filing a countersuit against people who sue them is an excellent intimidation tactic since most people cave rather than pony up a $25K retainer agreement to defend themselves since even if they win and get attorney fees, getting fax.com to pay the judgment is still hard.

Fees

  • If fax.com sues us, we bring up SLAP defense in California and get attorney fees
  • if you sue a common carrier and win, they have to pay

Venue

  • You can always sue someone in his home court; to sue in your court, you must be "damaged" there
  • If you are the plaintiff, generally, the defendant is deposed in his home location, not yours

Discovery

  • In discovery, the evidence you ask for doesn't have to be admissible (i.e., relevant), it just has to be calculated to lead to the discovery of admissible evidence, i.e., the statute is very broad.
  • phone companies keep records of everything for years. So you can subpoena or get a judge to order them to produce records of the calls of the junk faxers.
  • "Relevant" means that the evidence can help determine whether the defendant is guilt or innocent.
  • If people don't comply with your subpoena, you can write a judge's order and file a motion to compel the production of the documents and get the judge to sign that. They can't "reject" that.
  • if you subpoena evidence and the party with the evidence has it and doesn't comply, you get to construe that the evidence is what you thought it was.

Damages

  • Until you win, you can't get punative damages. cross complaint against individuals because they were the ones who brought the suit and they didn't go with the coordinated action. alter ego acknowledge.
  • Punative damages must be a "single digit" multiple of "actual damages"

Levy

You don't need the account number, but you need to know the branch.

Domesticate to california

You file an application for a sister state judgment and serve it on the defendant as if it were a lawsuit. They then have 30 days to file an objection. If they do then there is a hearing. If they do not object then it becomes a CA judgment. The grounds to object are quite limited. The judgment is presumed to be valid. In almost every case the CA judge will tell them if they have a problem with the judgment they need to take it up with the court in the other state.

If you are representing a corporation only a CA attorney can represent them here. if it an individual they can do it pro per.
 

Injunction tradeoffs

Here is a more detailed understanding of these requirements. Temporary injunction should issue if: (1) you, as the Plaintiff, are found to be "likely to prevail on the merits" or if your case "raises serious questions going to the merits to make them fair ground for litigation"; (2) the balance of hardship favors you as the party requesting the injunctive relief; and (3) the public interest is served by issuance of the injunction. You need not demonstrate risk of irreparable injury, but you must at least show you will suffer a degree of hardship that outweighs the hardship the opposing party might suffer if the injunction is not issued. Similarly, as moving party you need not demonstrate that you definitely will succeed on the merits; instead, you must show only that the cause presents serious questions of law worthy of litigation. Thus, as plaintiff you need only demonstrate irreparable injury and either likelihood of success on the merits or sufficiently serious questions going to the merits to make them fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting injunctive relief. Regarding the interplay of these factors, if the balance of harm tips decidedly toward you as the plaintiff, then you need not show as robust a likelihood of success on the merits as when the balance tips less decidedly. This means that courts have recognized a continuum of injury for the purposes of determining whether to issue injunctive relief: as the injury is more serious, the importance of likely success on the merits decreases and vice versa. The more the balance of irreparable damage favors issuance of the injunction, the less the party seeking the injunction has to show the likelihood of his success on the merits. Likewise, the greater the probability the party seeking the injunction is likely to prevail on the merits, the less he has to show that the balance of irreparable damage favors issuance of the injunction

Requiring an undertaking if hit with a SLAPP suit

  • Motions for an undertaking are made by defendants (not plaintiffs) and are directed toward out-of-state plaintiffs. A motion for an undertaking under Code of Civil Procedure Section 1030 was enacted to "afford security for an award of costs which the defendant might otherwise have difficulty enforcing against a non-resident plaintiff." Law Revision Commission Comment to 1980 Amendment to Section 1030; see Shannon v. Sims Service Center Inc., 164 Cal.App.3d 907(1985).

    There are two requirements for Section 1030 to apply. First, the plaintiff must reside out of state or be a foreign corporation. Second, the defendant must establish that there is a "reasonable possibility" that it eventually will obtain judgment. Section 1030(b). If both of these requirements are satisfied, the trial court "shall" require the plaintiff to post an undertaking in an amount sufficient to secure an award of costs and attorney fees that may be awarded in the action. Section 1030(a), (c).

    When an unsuccessful defendant appeals, a prevailing plaintiff ordinarily can enforce the judgment unless an undertaking is given to assure effective relief if the judgment stands. (See, e.g., Code Civ. Proc., 917.1, 917.2, 917.4, 917.5.)

Recent changes in California law (AB 1742)

  • The bill would require that proof of service of the claim and order be filed at least 5 days before the hearing. 
  • The bill would authorize a party to make only one motion to correct a clerical error or set aside and vacate a judgment and provide that a party may have 30 days after the clerk mails notice of entry of judgment to the parties to make that motion.
  • Existing law requires a person to be granted access to a staffed gated community for a reasonable time period for the purpose of performing lawful service of process, as specified. This bill would also authorize access to a staffed gated community for the purpose of serving a subpoena.

Other useful pages:

Note that references in [] typically refer to sections in Calif Practice Guide: Civil Procedure Before Trial by The Rutter Group and appear with permission.