How to get $2,500 or more per junk fax you receive
I wrote this page to collect advice I received from various people and I use
it for my own reference and to jog my memory as to what to do. It is posted here
for my convenience, but you may find some of the information here useful as
well. You should always consult an attorney before taking any legal action.
The simplest thing is not to sue yourself, but join an existing litigation.
This minimizes your time and trouble:
Junkfax registration for lawsuit participation
If you still want to sue yourself, keep reading...
Simplified step-by-step instructions for what I did to sue people who sent me
illegal faxes can be found here:
Otherwise, here is some useful background information
- You must first find out who is faxing you. See How to identify who is sending you
- Decide who to sue: the advertiser or the fax broadcaster, or both. Decide
whether you want to sue the people individually or just the company or both.
Generally, suing in small claims means you are confined to people who live
in (or are physically present in) your state and companies that have a
presence or do substantial business in your state. Sue parties that you
think you can collect from at the end of the day. Suing a sleezy advertiser
might be a waste of time. I'd suggest you name as many people and companies
in your state as you can. See the fax.com
profile for people at fax.com you can sue. I typically ask for $2,500 per
fax (unsolicit + ID violation limited to the Calif small claims $2,500
limit). So you can end up with a $25,000 judgment for a
few hours worth of effort which is a reasonable return on your time investment.
The nice part is you're helping to make the world a better place by reducing the
number of junk faxers. See for example, this case
against Robert Battaglia.
- Call the junk faxer. Tell them about this website. Tell them about your
other victories in small claims or district court (if you have any, this
always helps). Offer to settle for $400 per fax if they save you the trouble of taking them to
court and suing for a minimum of $500 and a maximum of $1,500. But if
the headers are not compliant, then you can, and should ask for more. Please
see the Q&A for details on
how to get $6,000 per page.
- The greater the number of victories you have in court, the higher the
likelihood that a defendant will settle over the phone. Most will not
believe you are serious and the more evidence you have that it's cheaper to
pay now than pay later, the more likely you will be to get a settlement
- In order to sue in small claims court, you must first send them a demand letter. Here is the
demand letter Propel uses and the settlement
agreement Propel uses and a sample Settlement Agreement
that I use personally which you'll want to customize to your
situation, e.g., by talking about how you've filed against other junk faxers
and collected. If you have a particularly good demand letter, send it to us
and we'll post it here.
- I can tell you the demand letter works sometimes. We've settled several cases on the basis of
a demand letter (one as high as $10,000) because they know we are serious because we are serious. We
have a demonstrated track record of taking people to court who don't settle. We
file class actions against these companies so their downside is very high if
they don't settle.
- The flakey companies will ignore you because they plan on disappearing
before your lawsuit comes to trial. Therefore, it's best to focus your time
on those companies that have "staying power."
- Honest companies will settle. Unfortunately, I've found that the vast
majority of junk faxers will ignore your letter, so you have to take it
to the next step, which is to begin small claims process if applicable
(i.e., the blaster or the advertiser is within the same state as you are). Otherwise, skip to to "If you aren't eligible for small
- If you are diligent, you will win. The law is on your side. You may win in
small claims if you get a
good judge as Robert Fenerty did and as Lawrence
Markey got, or you may have to appeal. But if you are persistent, you
- If the sender of the fax (the company that originated the content) is
located in your state, you can sue them in small claims. If the fax
broadcaster is located in your state, you can sue them in small
claims. If you can "catch" them in your state and serve them,
you can sue them in small claims.
- You can always sue in small claims. They can't force you to consolidate
your claims and force you out of small claims. Conversely, you can't split a
claim to get into small claims but that doesn't apply here.
- You can sue them either in your state or their home state (or in federal
court if you are in different states and you have >50 faxes).
- If the fax is from out of state, you may still be able to use small claims
if you can get the judge to sign the form allowing you to serve your
secretary of state (details below). Otherwise, you'll need to file in Superior Court.
That means you'll need a lawyer and it can get expensive. Don't do this
unless you have at least 10 faxes from the same advertiser and that
advertiser has staying power (i.e., you're likely to collect because it is a
legitimate business). Otherwise, you'll lose money. Here's a list
of attorneys who handle junk fax cases.
Small claims court overview
See California Courts Self-Help Small Claims Small Claims Court Basics
for more info or the small claims website for your state. We've also
prepared a short document that describes the process: How
to Sue in Small Claims Court
In general, here
are the steps:
- First, find out whether small claims cases in your state have been
successful. They work in California, New Jersey, Maryland, etc.
- Save the original fax. Mark the date it was received if there is no date
on the fax already. You can sue for four year from when the fax was received
(the TCPA is a federal law and the 4 year federal statute of limitations
- Send a demand letter by certified mail. What's really cool is you can now send
a certified letter online without having to go to the post office. Here's the demand
letter I use. Here's another junk fax demand
letter. And here's another Junk Fax Demand Letter.
Keep a copy. You'll need to hand the demand letter and the
original fax to the judge when you appear in front of the judge. I sent mine
electronically via USPS - NetPost Certified Mail,
but you don't have to send it this way. I find out their email address and
send it to them. Here's an aggressive
junk fax Demand Letter and Settlement agreement.
- In your demand letter, always include a deadline (such as 10 days from
receipt) and I'd strongly suggest including a "ready to file" copy
of the complaint with the demand letter. You'll be amazed at how much more
effective that is. Here is a draft complaint you can
- If you don't get a response within 30 days, file the paperwork with the
court. You'll be assigned a court date. In CA, if you're including a count
under the state statute (which is not the case for junk faxes), you're
required to notify the Defendant via cert mail, return receipt requested a
minimum of 30 days prior to filing suit.
- Pay a process server
to serve the Defendant the suit you filed. Be sure to
allow enough time before your court date; for example, if the Defendant is
outside your county, you must allow additional time before the court date
- Show up in court, explain the facts of the case (that you got a fax
without your consent), hand the judge the original fax and a copy of the demand
letter. Also hand the judge any correspondence between you and the
Defendant. It also helps to hand the judge a copy of the "one
pager" summary of the law appropriately modified for your case. See
also the list below for what to bring to court.
- If the other party doesn't show up, and you get a good judge, you'll get a
judgment for $500 or $1,500 on the spot (double that if the headers are not
compliant). If the other party shows up, the
judge will take the case under submission and mail you his decision within
- The Defendant then has 30 days to pay you. If they don't, you can give it to a
collection agency (often this is the same agency you used to serve the
- When they pay you, immediately return the judgment form to the court, or
you can be fined.
How to get up to $6,000 per page ($2,500/pg in Calif small claims)
- Most junk faxes have two violations: sent unsolicited, and violating the
header regulations (see the Q&A for details).
- The law says if the Defendant willfully or knowingly violated the TCPA,
the judge may award $1,500 per violation. The "or" is important.
- "knowingly" meant that the act was done voluntarily and
intentionally and not because of mistake or accident.
- "willfully" does not require a criminal or other bad motive on
the part of the responsible person, but simply a voluntary, conscious and
- So the fact that the advertiser entered into an agreement to send faxes
which probably had an indemnification clause demonstrates both knowingly and
- Here are some actual fax.com
advertiser contracts and case law on willful and knowingly. In Jobe, the
Court of Appeals defined what constitutes 'knowingly'; where in Newsome, the
Court of Appeals defined 'willfully'. Both of these cases are from the Fifth
Circuit, so they may not specifically apply to the Ninth Circuit. As you can
see from the contracts, item 11 places the 'buyer' on notice of the possible
legal repercussions of fax broadcasting by the seller, and by implication
said notice can be inferred to the 'seller.' The contracts were between
different 'buyers' than the indemnity agreement buyer.
Serving your claim
Here's a web page to find a process
server in any area of the US.
Pricey alternative: PFI - Nationwide and International Process Servers - Process Forwarding International).
You can use substituted service without due diligence if you are using small
Here's info about serving a PO Box.
Here are some notes about substituted service if you can't serve them
directly. Note that due diligence is NOT required in small claims. You can sub
serve them on your first attempt!
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
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
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.
If I can't get him in three attempts of personal service, Calif law allows
me to subserve with a responsible adult and drop a 2nd copy of the suit in
Since fax.com people tend to dodge service, it doesn't matter if you get
within earshot and throw the papers at them. Here's the scoop:
The well settled rule, supported by a plethora of authority, was
succinctly stated by a California intermediate appellate court: "A person
may not deny personal service of process on the grounds of lack of delivery
where the delivery was deliberately prevented by the action of the person to
be served." Hankla v. Governing Board, 46 Cal. App. 3d 644, 655 (1975). In
other words, a person may not intentionally "refuse" service of process.
Such a person is deemed to have been served.
A great case on this is In re Ball, 2 Cal. App. 2d 578, 38 P.2d 411
(1934). A process server attempted to serve papers on a businessman. The
same process server had previously served other papers on this same
businessman. The server approached the man, coming within 12 feet of him,
and said, "I have here another one of those things for you." The man
replied, "You have nothing for me," and began to walk away. "While [the
businessman] was moving away in a sidewise manner and looking at the server,
the server handed or tossed the process toward [the businessman], it falling
a few feet from him, at the same time saying, `Now you are served.' [The
businessman] did not pick it up but continued to walk away from the
premises." Id., 2 Cal. App. 2d at 579.
The issue before the California appellate court was whether the service
of the process was valid. The court held that it was. "We take it that when
men are within easy speaking distance of each other and facts occur that
would convince a reasonable man that personal service of a legal document is
being attempted, service cannot be avoided by denying service and moving
away without consenting to take the document in hand." Id.
Your case involves the resident agent of a corporation who allegedly "refuse[d]
to accept service of process." A corporate agent's refusal of service was
the issue in Khourie, Crew & Jaeger v. Sabek, Inc., 220 Cal. App. 3d 1009
(1990). A California statute permitted service on a corporation by "leaving"
the process with the person who is "apparently in charge" of the office, and
then by mailing the process to the office. Id. at 1013, citing Cal. Code Civ.
Proc. sec. 416.10.
The process server in the case went to the defendant's place of business,
but was faced with a locked door. The server rang the bell, and spoke with a
woman who refused to give her name and refused to unlock the door. The
server "explained his purpose and she stated that she was `not accepting the
papers.'" Id. at 1012. The server then told the woman that he was leaving
the papers outside of the locked door. He subsequently mailed copies of the
papers to the office.
A default judgment was later entered against the defendant, and the issue
before the appellate court was whether the corporation had been properly
served. The court answered in the affirmative. See id. at 1012-1014. "It is
established that a defendant will not be permitted to defeat service by
rendering physical service impossible." Id. at 1013, citing In re Ball,
For other California cases on the issue, see Crescendo Corp. v. Shelted,
Inc., 267 Cal. App. 2d 209 (1968), and Sternbeck v. Buck, 148 Cal. App. 2d
829, 835 (1957).
Courts in other jurisdictions have followed this rule in various factual
contexts. As the Tenth Circuit stated, "a defendant cannot refuse or avoid
service on a technical ground, and then exclaim he has not been correctly
served." Nikwei v. Ross School v. Aviation, Inc. 822 F.2d 939, 946 (10th
Cir. 1987). In Thomas Organ Co. v. Universal Music Co., 261 So.2d 323 (La.
Ct. App. 1972), the court considered a case involving Louisiana's long-arm
service statute, which allowed service on an out-of-state defendant by
registered or certified mail, or by personal delivery by a commercial
courier. The court said that "to allow a defendant to defeat service of
process by refusing to accept a registered letter . . . would make a mockery
of R.S. 13:3204 and render it completely ineffective." Id. at 327.
For other cases involving "refusals" to accept service of process, see
Reliance Insurance Co. v. Mast Construction Co., 150 F.3d 1278 (10th Cir.
1998); European American Bank v. Abramoff, 608 N.Y.S.2d 233 (N.Y. App. Div.
1994); Patel v. Southern Brokers, Ltd., 289 S.E.2d 642 (S.C. 1982); Cortez
Development Co. v. New York Capital Group, Inc., 401 So.2d 1163 (Fla. Dist.
Ct. App. 1981); Ahlers v. Ahlers, 384 So.2d 474 (La. Ct. App. 1980); McIntee
v. Minnesota Dep't of Public Safety, 279 N.W.2d 817 (Minn. 1979); Howard
Avenue Realty Corp. v. McIntosh, 352 So.2d 348 (La. Ct. App. 1977); Merriott
v. Whitsell, 476 S.W.2d 230 (Ark. 1972).
Therefore, being "cute" can end up getting someone "burned." Defendants
who refuse service of process may find themselves on the receiving ends of
default judgments. See Huffer v. Cicero, 667 N.E.2d 1031 (Ohio Ct. App.
Important tips: it's all about collectability
- Make sure that you only name Defendants that are "collectible",
i.e., do some research and make sure the have assets and are not likely to
be a flight risk (to another country or just "disappear" or
- Always name at least two Defendants. There are usually many people
responsible: the advertiser company, the blaster company, the officers of
both companies, the companies and officers of any "middlemen" that
have been notified of the violation
- Always name the principals personally. It's a mistake just to name the
companies. Companies come and go, but people rarely do. Having the ability
to collect against both increases your chance of collectabilility.
- Always file for the maximum $ amount. Due to high filing fees, you should
get the max return on investment. For California, the maximum is $2.500 so I
always file for 2 faxes on each claim form. I give up $500 potential remedy
in doing so, but it means half the paperwork for everyone and maximize the
return on investment in your time and minimizes your filing fees in the
event it is not collectible.
- Small claims subpoenas can be very powerful in what you can ask people to
supply. As long as it is relevant to your case, you can ask for it. If the
judge admits it as evidence, you can then give it legally to others to use
in their cases. I've asked for phone records, contracts, removal numbers for
each advertisement, list of all advertisements, etc. Very powerful.
Preparation for court
To bring with you to court
- Trial brief: Here's a short trial brief you
- TCPA information: Hand this to the judge
and/or include it in your filing so he can read it ahead of time. This is
the single most important thing you can do. Judges have a lot of cases and
the simpler you can make it for the judge the better. This document
summaries on a couple of pages the whole story. Keep the facts as short as
possible as this document shows.
- The second thing is to bring a judgment from a similar court in your area,
if you can find one. For example, for California, you can use this and
either file it or bring it to court: Fenerty
- In California, I always bring a copy of the Enrolled Bill Report for §17538.4
makes it quite clear that the original California law was enacted to be a stopgap
protection until federal law takes effect (see page 2 of the report). I also
bring a copy of Kaufman
v. ACS Systems (July 22, 2003, B155804) _Cal.App.4th which confirms that
California courts have determined that opt into the TCPA is not required and
junk fax suits are legal in California. A copy of AB
2944 may also be helpful which shows the repeal of the California law in
September 2002 paving the way for the federal law to apply.
Small claims process
- First of all, people have won in small claims court. But you have to be
serious about pursuing what you're entitled to. Here's the small
claims court judgment from Robert Fenerty's case. The defendants
appealed the decision to higher court, but they settled with him out of court, right
before the case was going to go to trial. Lawrence Markey won his small
claims case against IDC Solutions (a fax.com advertiser), and Markey
also won on appeal.
- In California, you must send a demand letter (doesn't have to be return
receipt), and you must give the Defendant a "reasonable time" to
respond, e.g., 10 days is more than reasonable before you file your claim.
- You must file in the proper courthouse (the nearest to where you live). So
even if there are 2 courthouses in Santa Clara County, you have to go to the
- There are typically at least 2 judges who do small claims and there might
be a judge on call if you don't want your case heard by the judge pro tem.
- If you can't serve all the Defendants in time on a given claim, you can
drop the D's you couldn't serve when you appear in court.
- Check the rules for your state. In California for example, the defendant
must be served in California (see the next paragraph). Otherwise, you'll have to sue in Superior Court. Secondly,
in California, you're limited to the number of suits you can file per year
over $2,500. So if you keep your claims under this and you can file as often as you
like against the same defendant....sue them one or two faxes per complaint
(and ask for $2,500 if you have two faxes). You can file up to 2 claims per year up to $5,000.
The filing fee is only $20 (rises to $35 if you file a lot per year). See California Courts Self-Help Small Claims Small Claims Court Basics
for more info.
- Even if the company is located out of state, if they do business in the
state (which you can verify by calling them and asking them if they'll take
your money), you can sue the company using a special form that you need to
get your local judge to sign to serve your own secretary of state who then
will serve the defendant. Here's the form
used by Orange County to serve out of state defendants. To get the
form in Santa Clara County, I had to call the Los Gatos small claims advisor
(it isn't on the web!) to fax it to me. The whole trick here is getting the
judge to sign it. The law covering this is CA Codes
- Be sure to serve the Defendant at least 20 days before the hearing (15 if
in the same county).
- If you lived in San Diego, you were probably out of luck in small claims court. All
the judges have decided that they will throw out any junk fax cases by
reasoning the California law (CA Business & Professional Code
17538.4) "opts out" of the TCPA. Of course, this isn't true. I
spoke with the author of that law (Richard Katz) and he had no clue there
was a TCPA. He never intended to make it easier for people to junk fax in
California. So much for judges interpreting the letter and/or intent of the
law. So you have to sue in Superior Court and appeal it to find a judge who
knows how to interpret the law. However, now that we have the appellate
court decision, everything is clear
- All proceedings are informal, including the appeal. Rules of evidence
apply: it must be admissible (no hearsay, nothing stolen, etc) and it must
be relevant to be admitted into the proceeding. Evidence that is accepted by a judge, and not put under seal,
is part of the court record and thus publicly available for use in other
cases. Actually, the exhibits are returned to the parties, so the evidence
is not kept by the court and there is no transcript unless a court reporter
is there, which is usually not the case. You normally get a copy of this when you walk out of the courtroom
since both sides are required to give copies of the evidence to the other
- However, even though you are free to use the information that was
admitted, be careful HOW you use it. For example, if you have a debtor's
exam and get a list of someone's assets and bank account information, and
you then post that information to a website (or cause it to be posted), then
you can be liable for invasion of their privacy. If you post someone's
home address and phone and then tell all your friends "this is where
you can find the guy whose been faxing you," then you can be liable. If
you send an email saying "go after this guy", you can be liable.
But you can tell people you know of your success. You can post information
that tells people how to sue junk faxers. But you can't tell people
"you should go sue this particular person and here's how."
- Be sure to focus first on establishing the facts, then talking about the
law. In a bench trial, such as small claims, the judges decides on facts and
law. If you went to Superior Court and had a jury trial, it is separated
out: juries decide on the facts, the judge decides on the law.
- One disadvantage to starting in small claims is that if you lose in small
claims court, you may not appeal. But the defendant loses, he can appeal.
Also, the judgments can be simple one liners like "the defendant
doesn't owe you any money" or it can be an multi-page, well written
decision as with Robert Fenerty's case.
- If you reach a settlement outside the courtroom, come back in and tell the
judge. They'll record it in case the other party doesn't pay.
- See How
to Use a Federal Law to Make Junk Faxers Pay You. Make no mistake. If
you choose to pursue junk fax cases, they will definitely consume some of
your time. And the settlements and judgments you get will only recompense
you for your time (although you can add on your collection costs). This is
not a money-making venture. Those who do it, do it for principle, somewhat
like the Minutemen, who shed their blood so others could be free. See also Small
Claims Court Enforcement of Federal Unsolicited Fax Law.
- Follow the process for your state. If you live in California, here are
three really useful links:
Courts Self-Help Small Claims
to Prepare, File, and Serve a Claim
to Collect On a Claim
For more details see the contributed article "How
To Sue in Small Claims Court". In general the process will be something
- Download small claims complaint form
- Fill out and file at courthouse
- Serve the defendant and make sure proof of service is sent to the
court before your hearing
- You are notified of court date.
- Come to see what happens before your date to familiarize yourself with
what to expect
- Appear on court date. Use the script provided below (bring the fax and
any backup documents such as the Q&A if needed)
- When you win, see
to Collect On a Claim
- If the defendant appeals, you'll get a date in superior court. It's
just like small claims. You don't need a lawyer. Chances are good the
judge will re-affirm the original judgment, but you'll have to argue
your case all over from scratch.
An innovative way to always get paid
The judge is unlikely to give you treble remedy if you are suing a "poor
advertiser" for the first time (even though he could). So suggest to the
judge to award you the minimum $500 per violation x 2 violations (header and
unsolicited)=$1,000 if the Defendant pays in 30 days; otherwise, the judgment is
Advice on filling out forms
For your claims, you fill them out, file with the clerk, and you get back a
service copy and your copy; the court keeps the original. When you serve it, you
send in the original proof of service.
For subpoenas, it's different! You need to bring in 3 copies to the clerk. They stamp one
as the original, the other 2 are stamped as copies; one for you, one for the subpoenaed
party. They give you all three copies back! You serve one of the copies. Then
you return the proof of service with the original subpoena back to the
For filing for changes, make sure you use one form per case number. File the
signed originals with the court.
You are required to show the other side anything you'll give to the judge.
But you are not required to give them a copy of the evidence you submit to the
judge. So don't. Keep a copy for yourself, and a copy for the judge.
With subpoenas, you can legally get only stuff that is admissible, and not
overly broad or burdensome. This applies both ways (since the D may use a
subpoena against you).
To be admissible, evidence must be relevant, Fed. R. Evid. 402, with
relevance defined as "the tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less
probable than it would be without the evidence." Fed. R. Evid. 401.
If you subpoena a witness, you'll have to pay a fee. I just subpoena
documents and don't require them to appear. My subpoenas are pretty broad and
I've gotten them signed off by the clerk. You should only ask for stuff
that is relevant. Don't go overly broad or burdensome or they can legitimately
The big advantage of a subpoena is that as long as the judge allows it as
evidence, that information can then be used for other cases legally since it is
admitted into evidence.
At the hearing, be sure to ask for a copy (or the "copy"
brought by the Defendant), or that the court hold the evidence in the court file
so you can go back and get a copy. They will charge you 50 cents to $1/pg.
You're entitled to get a copy of any public record (anything in a court/case
file). You can ask to see the contents then ask that you be given copies of
specific pages you request. Here's the scoop:
Actually, the Federal Freedom of Information
Act will NOT be helpful. And, to boot, even the California Public
Records Act (http://snipurl.com/5wt1),
by which otherwise one would gain access to California agency records,
WILL NOT be helpful either (for the courts in California are not
"agencies" covered by that act either).
Public policy requires public records and
documents to be available for public inspection to prevent secrecy in
public affairs. Craemer v. Superior Court (1968) 265 Cal. App. 2d 216,
222, 71 Cal. Rptr. 193. "[W]here there is no contrary statute or
countervailing public policy, the right to inspect public records must
be freely allowed." (Ibid.)
"[I]t is a first principle that the people
have the right to know what is done in their courts." In re Shortridge
(1893) 99 Cal. 526, 530, 34 P. 227. The public has a legitimate
interest in access to court documents because "[i]f public court
business is conducted in private, it becomes impossible to expose
corruption, incompetence, inefficiency, prejudice, and favoritism."
Estate of Hearst (1977) 67 Cal. App. 3d 777, 784, 136 Cal. Rptr. 821.
Although there is no specific statutory
requirement for access to court documents, both the federal (U.S.
Const., 1st Amend.) and the state (Cal. Const., art. I, § 2, subd. (a))
Constitutions provide broad access rights to judicial records in
criminal and civil cases. Copley Press, Inc. v. Superior Court (1992) 6
Cal. App. 4th 106, 111, 7 Cal. Rptr. 2d 841. "A trial is a public
event. What transpires in the court room is public property. . . .
There is no special perquisite of the judiciary which enables it, as
distinguished from other institutions of democratic government, to
suppress, edit, or censor events which transpire [in] proceedings before
it." Craig v. Harney (1947) 331 U.S. 367, 374, 67 S. Ct. 1249, 1254, 91
L. Ed. 1546.
Court records are available to the public in
general, including news reporters, unless a specific exception makes
specific records nonpublic. Estate of Hearst, supra, 67 Cal. App. 3d
777, 782. Statutory exemptions to disclosure of court records exist
(see Government Code section 6254 [the California Public Records Act]
for exemptions), as do judicially created exceptions, which generally
are temporary in nature. Id. at p. 783.
The court . . . [possesses] limited power,
exercisable under exceptional circumstances and on a showing of good
cause, to restrict public access to portions of court records on a
temporary basis." Estate of Hearst, supra, 67 Cal. App. 3d 777,
784-785. Policy reasons to restrict access are "anything which tends to
undermine that sense of security for individual rights, whether of
personal liberty or private property, which any citizen ought to feel
has a tendency to be injurious to the public or the public good."
Craemer v. Superior Court, supra, 265 Cal. App. 2d 216, 222.
The burden rests on the party seeking to
deny public access to court records to establish compelling reasons why
and to what extent the records should be made private. Estate of
Hearst, supra, 67 Cal. App. 3d 777, 785. Where the relief extends to
sealing permanent court records, the court must be careful to limit its
denial of access by narrow and well-defined orders. Id. at p. 785. Due
to its temporary nature and its infringement upon the public right to
know, a sealing order in a civil case is always subject to continuing
review and modification, if not termination, upon changed
circumstances. Mary R. v. B. & R. Corp. (1983) 149 Cal. App. 3d 308,
317, 196 Cal. Rptr. 871.
Pursuant to subdivision (c) of Rule 243.1 of
the California Rules of Court ("Rules")(see
http://snipurl.com/76g0, titled "Sealed Records"), "[u]nless
confidentiality is required by law, court records are presumed to be
open." By "open," the Rule means "open to inspection by the public"
(compare definition of "sealed" in subdivision (b)(2) of Rule 243.1).
In California, Court records may be sealed
only by statute or by a court order setting forth findings that (1)
there exists an overriding interest supporting sealing; (2) there is a
substantial probability the interest will be prejudiced absent sealing;
(3) the proposed sealing order is narrowly tailored; and (4) there is no
less restrictive means of achieving the overriding interest. (CRC 243.1,
243.2, NBC Subsidiary, Inc. v. Superior Court, 20 Cal.4th 1178 (1999);
Copley Press v. Superior Court, 63 Cal.App.4th 367 (1998)). The order
must specify the documents and pages, or portions of pages, that are to
be sealed. Sealed records may be reviewed only upon an order of the
• -- Material not introduced in, or filed
with the court is not public. Court records are not covered by the
California Public Records Act. Thus, the Act’s provisions on access,
time, and cost do not apply.
Anyone is entitled to see any evidence
introduced in open court and any unsealed court record (including
transcripts) in the court file. No fee is required to view records, but
there may be a fee for copies.
• -- Criminal: Executed search and arrest
warrants after the 10th day after issuance (Penal Code §1534); grand
jury testimony that resulted in an indictment after 10 days following
delivery of the transcript to the defendant; (Penal Code §938.1)
probation officer reports for the 60 days following sentencing or grant
of probation (Pe-nal Code §1203.05); old probation reports when the
subject is charged with a new crime; written victim statements (Penal
Code §1191.15) after sentence is entered.
• -- Civil: Settlement agreements that are
filed in court. A party seeking to keep an agreement secret must show
that the need for secrecy outweighs the presumption of public access
(Matter of Hearst, 67 Cal.App.3d 777 (1997)). If a party to the
settlement is a public agency, the settlement is public under the Public
Records Act (Govt. Code §6254(b)); Freedom Newspapers v. County of
Orange, 158 Cal.App.3d 893 (1984)).
Criminal: Records of grand juries that do
not enter an indictment (Penal Code §924.6); juvenile court records (Welf.
& Inst. Code §827), except some records when minors escape detention
facilities (Welf. & Inst. Code §828), and after a §602 petition has been
sustained for a Welf. & Inst. Code §676(a) offense; pre-sentencing
mental evaluation records (Penal Code §1203.03) [the contents may be in
Probation Officer Reports]; indigent applications (Penal Code §987.9);
any record for which the court finds disclosure would jeopardize a
defendant’s right to a fair trial.
Civil examples: Examples of confidential
records to which public access is restricted by law are records of the
family conciliation court (Family Code, § 1818(b)), in forma pauperis
applications (Cal. Rules of Court, rule 985(h)), and search warrant
affidavits sealed under People v. Hobbs (1994) 7 Cal.4th 948. The sealed
records rules also do not apply to discovery proceedings, motions, and
materials that are not used at trial or submitted to the court as a
basis for adjudication. (See NBC Subsidiary, supra, 20 Cal.4th at pp.
1208-1209, fn. 25.) Other examples of records with restrictions on
public access are adoption records (Fam. Code §9200); trade secret
information (Civ. Code §3426.5); civil attachment records for 30 days
upon request of the plaintiff (Civ. Proc. Code §482.050); discovery
records such as deposition transcripts, interrogatory answers and other
documents obtained in discovery, until filed in court records or
introduced in evidence. But a party may be willing to share them.
If perchance the clerk tells you the records
indeed are sealed, ask for a copy of the order that sealed them. If
they truly are sealed make a motion to have them unsealed (good luck).
Most people don't comply with the subpoena. If they don't, it looks really
bad for them. You have the choice of re-scheduling where they are ordered to
produce the documents or be fined by the court. Usually, what happens is that
the failure to produce the documents are held against you.
A witness is entitled
to fees of $35 per day and 20 cents a mile each way at the time of service
When you request a
Subpoena Duces Tecum for telephone records and certain other personal consumer
records, the privacy rights of the consumer are protected and he/she is entitled
to advance notification that the records are being sought. (CCP 1985.3)
If you are serving a subpoena on someone out of state, they are not legally
bound to comply with it unless you do a bunch of complicated maneuvers to get
their state to issue your subpoena. If they try that trick (ignoring my subpoena
if issued by a state other than their own), I let some people in their home
state know about what I'm trying to do since sometime they might be requesting the
same information for their case. If they do and their judge allows the evidence,
it's public record and I can use it in my next case.
The better way is to serve them in your state, either via their agent for
service in your state, or by serving the secretary of state in your state.
Live Leads Corp refused to respond to my discovery request of:
1. Produce a copy of all documents related to any lawsuits against
Defendant Live Leads that allege any violation of the Telephone Consumer
They said : "This information is a public record, discoverable by the
Plaintiff and are not relevant to the civil claim by the Plaintiff"
I assume that "public records" in possession of the Defendant are
subject to discovery by the Plaintiff. Otherwise Defendants would simply make
all their documents obscurely available in various public places, and then
claim that the Plaintiff must go looking for them in the Juno Alaska Library
where they are publicly available.
I also assume that these documents are relevant since they may be used to
convince the court that Defendants continue to violate the law and are thus
subject to trebled willful damages in the instant case.
[the Plaintiff is exactly right]
If they file a motion to quash, be sure to attend the hearing on the date
stamped by the court on the form. The party requesting the motion to quash will
probably be overruled by the judge (99% of the time). And if they don't show, their motion gets
If you are working on stuff or doing research regarding a case with a lawyer,
your research (including sources you talked to and what they gave you) can be
excluded from discovery as work-product derived material.
Also pro per litigants such as you may assert work product protection for
their own work, such as interviewing witnesses, even without an attorney.
Dowden v. Superior Court (1999) 73 Cal.App.4th 126, 136. Generally work
product of an attorneys' agents, such as yourself when acting on
instructions from your own attorneys, is also protected. Rodriguez v.
McDonnell Douglas Corp. (1978) 87 Cal.App.3d 626, 647-648
See CA CODE OF CIVIL PROCEDURE SECTION
2016-2036 for more info on this and work product (see 2018).
If they don't comply, the judge can issue discovery sanctions, which
can be your attorneys fees (none in a small claims case) or a presumption
that the documents say whatever you wanted them to say which of course is a
really cool way to make sure that they comply or you win. They can be held in
contempt and fined or jailed until they comply, but there is almost no way that
Request (if you are issuing) or bring (if you were served a subpoena) 2
copies of the material: one for the judge, one for you. Don't give the
Defendants a copy; you don't have to.
They may threaten to sue you back for malicious prosecution. This is a joke to
scare you. They have to win first (which they won't if you do your homework),
then show the case was brought without any merit.
Also, be sure to check whether your state has an anti-SLAPP statute.
Massachusetts does, and it's been construed as applying to private lawsuits.
Someone who files a malicious prosecution or similar suit against you merely
because you've sued them is subject to a special motion to dismiss that gets
expedited handling by the court AND entitles you to attorney's fees when you
Appeal by the defendant
The Defendant can appeal only if he showed up at the original trial (116.710(d)).
This is just like the original trail; everything is informal. Everything must
be presented fresh. You are in front of a real judge. You may be represented by
Infomation for small claims appeals: Code of Civil Procedure sections and SMALL CLAIMS
COURT: How to vacate a default judgment
You cannot appeal a default judgment; you have to vacate it first. In order
to vacate, you have to show the judge why you didn't show (and have proof). If
he vacates, he'll hear the case at that time.
If the judge goofs
I've had a judge give me $50 per page instead of the statutory minimum remedy
of $500 per page.
In such cases, if you won, you can ask to vacate the judgment within 30 days.
If the judgment is vacated via a C.C.P. 116.725 motion, you get a trial de novo
with a different judge, just like a small claims appeal (except no attorneys
allowed in this case).
I see no reason why the process couldn't go on and on, other than the fact
that most C.C.P. 116.725 motions are rejected. Make a good
supporting brief to go along with the motion.
Of course anyone can be jailed for contempt of court but they have to be
charged with it. One court won't jail someone for contempt of another court.
However, in many states you can be jailed for refusing to comply with an
"informational subpoena" a device served after judgment used to assist the
plaintiff in determining where the defendant's assets are. You get one chance to
not appear. If you blow that, you can be arrested. Be sure to serve the ORAP
with a registered process server or sheriff to ensure this.
Only if you first get an injunction and then after they violate it they can
get up to 6 months in jail for each violation. They cannot get jail time for
violating the TCPA but violating a court order will get you jail time. You can't
get an injunction in small claims court, however.
Make sure you can collect. You can start collecting this 30 days after the judgment
(which allows them time to file an appeal) if they
haven't appealed or filed a motion to vacate. Assuming they filed to vacate
under CCP 116.740 then the court may order that enforcement of the judgment be
suspended under section 116.740(d). So it depends on whether the court ordered
that -- if not the judgment is still enforceable. Usually they don't order that.
In the case of an appeal, the judgment is enforceable as soon as small-claims
court receives the appeal paperwork back from Superior Court.
If you do it yourself, if the judgment is on someone who is out of state, you
need to have it domesticated in the debtor's home state first. This will cost
you less than $200 per case. If the Defendant is outside your state (which means
either you served the secty of state if you are in calif or in other states you
can serve out of state D's) , you need to get the "sister-state
judgment" form for his state, fill it out, and file it with the court in
his location, and serve that form. See the example: CovingtonJudgment.
See also Enforcing a judgment against an out-of-state debtor
which is an excellent summary. For example, if you were to enforce a judgment
from out of state in California, here's what you do: Sister-state
The simplest is to have a collection agency handle this. They can do it in
all 50 states because they can do it all by mail.
You can have the sheriff put a keeper (person who stands around all day
waiting for money to come in) at the location.
You should always also start with sending them a form to fill out listing
their assets. If they don't return this to you, you can haul their ass into
court for a debtor's exam. You can ask the Social Security number, bank accounts, payroll amount
or any sales commissions received or due, etc. If you really want to be mean ask
the judge if you can have the debtor's rings to pay your judgment, be sure to
get bank accounts, amount of cash on them right then, places of employment,
addresses, and supervisors, owners of any liens on their personal or real
property (these are all legitimate questions but they will be humiliating to the
debtor and next time he or she may pay you quicker).
If you get paid part of what you are owed, file a partial satisfaction of judgment
form. Here are all the forms you need: California Courts Forms
If they change their company name, you can file a form to amend the judgment.
The other side will have an opportunity to appear and oppose (which they won't).
See California Courts Self-Help Center Small Claims Collect Your Judgment Collection Problems & Special Situations
If they don't show up for the Debtor's exam, you get to add your
attorney's fees and have them arrested. However, you have to hold the exam
in their county (per CCP 708.160 (b)).
CCP 708.110 e) The order shall contain the following statement in 14-point
boldface type if printed or in capital letters if typed: "NOTICE TO
JUDGMENT DEBTOR. If you fail to appear at the time and place specified in this
order, you may be subject to arrest and punishment for contempt of court and
the court may make an order requiring you to pay the reasonable attorney's
fees incurred by the judgment creditor in this proceeding."
CCP 708.170. (a) If an order requiring a person to appear for an
examination was served by a sheriff, marshal, a person specially appointed by
the court in the order, or a registered process server, and the person fails
to appear: (1) The court may, pursuant to a warrant, have the person brought
before the court to answer for the failure to appear and may punish the person
for contempt. (2) If the person's failure to appear is without good cause, the
judgment creditor shall be awarded reasonable attorney's fees incurred in the
examination proceeding. Attorney's fees awarded against the judgment debtor
shall be added to and become part of the principal amount of the judgment.
This 150 mile thing for examining a debtor in court needs some clarification.
Normally, an examination is held in the court where the judgment was entered.
CCP 708.160(a) However, an examinee may not be required to attend an examination
before a court that is: (1) located outside the county in which the person
resides or has a place of business; and (2) more than 150 miles from the
examinee's residence or business. CCP 708.160(b).
If the person you want to exam, and this applies to examinations of third
parties or persons, is not within the above limitations then you may hold the
examination in a court of similar or higher jurisdiction in the county where the
judgment debtor (or third person) resides or has a place of business. CCP
To conduct an examination in a court other than the one in which the judgment
was entered, you must: (1) File an abstract of judgment in the court where the
examination is sought and pay a $12 fee; (2) File a declaration stating the
examinee's place of residence or business; and (3) Make any necessary affidavit
or showing for the examination pursuant to CCP 708.110, and 708.120
These steps are found in CCP 708.160(d).
NEVER attempt to notice an examination in the wrong judicial district. It is
most likely a violation of the Federal FDCPA venue restrictions. See Fox v.
Citicorp Credit Services, Inc. (9th Cir. 1994) 15 F.3d 1507 for further
information. Briefly, in that case, it was a violation of the FDCPA venue
provision to obtain a garnishment writ in county where judgment debtors neither
resided nor signed contract sued upon.
All of this is true for examination of third parties and persons as well.
If the lawyer tells you the Defendant is about to declare bankruptcy and
wants to settle for a lesser amount, don't believe it:
You are being lied to. I do a lot of bankruptcy law. Never believe someone
who is "about" to go bankrupt. It doesn't happen. you are being
played. No one goes bankrupt over a few thousand dollars. If they are going to
file bankruptcy the last thing they are going to do is pay any money on a
dischargeable debt. The next time he tells you he is going bankrupt say that
is just fine with you, but until he does your efforts to collect the full
amount will continue.
To clarify: any payment to a creditor within 90 days of the bankruptcy
filing that's for an antecdedant debt is subject to recovery by the trustee,
since it allows the preferred creditor to receive more than he would have if
he had shared with other unsecured creditors.
The only claims that would not potentially be discharged in the bankruptcy
are those for faxes that arrive after the petition is filed. It is
significantly easier to recover on a claim that's been reduced to judgment
than on one that hasn't, but there's otherwise no difference between them. It
does no particular good to have a perfected judgment lien against an
individual debtor if the property to which the lien attaches is exempt, as
real estate in FL, TX and a bunch of other places is likely to be. This is
because the debtor can avoid judicial liens to the extent of his exempt
I just got back from a debt collection seminar at which some of our local
Massachusetts experts said the same thing as Ken and Steven: ignore threats of
bankruptcy until some counsel you respect sends you a petition that's all
ready to file listing you as the only major creditor.
See California Courts Self-Help Center Small Claims Collect Your Judgment More Ways to Collect a Judgment
This is a great resource and it talks about seizing and selling assets (like
their car, home, bank accounts, and possessions). Seizing cars works great. You
have to be very specific about the property to be seized and your costs are
added to the judgment if you file a Memo of Costs. You can also have people
evicted from their own home (check out Ca Code Civil Procedure 700.080(c)).
Liens are nice, but levies (seize and sell) on bank accounts, stuff in their
home, etc. are much better.
Collecting a Judgment Sacramento Small Claims Advisory Clinic
is also excellent. It tells you how you can have the person arrested if he
doesn't show up for his debtor's exam and how you can add on your collection
costs. Interest at 10% accrues from the time the final judgment is entered. You
can collect for 10 year and renew for another 10 (over and over again). You get
to collect on interest on the interest if you renew after 5 years (see
Introduction to Collecting Your Judgment for more info on interest on
interest; see Introduction to Collecting Your Judgment
for info on fees you can recover)
Restitution Guide page 2
is a good resource too.
Under California law, inadequate capitalization alone is sufficient for
piercing the corporate veil. So you can go after the officers in this case.
CCP 685.040. The judgment creditor is entitled to the reasonable and
necessary costs of enforcing a judgment.
From people experienced in collections (note a turnover order requires them
surrender the property to a sheriff and is used for small property):
For your OEX / ORAP (Order to Appear for Examination),
you may want to consider a turnover order after examination (CCP §708.205).
If you have one prepared blank, the judge can sign an order forcing turnover
of any non-exempt property identified in the examination. Just leave space to
write in the property description. Not nearly as expensive as a seizure
Even better, a Turnover Order comes under the Court's contempt powers
and will subject a debtor to arrest.
Also be aware of exemptions the judgment debtor may have. My state has a
$5700 personal vehicle exemption. If you seize personal property that is
exempt YOU may be liable in trespass with punitive damages available.
Here's a great story:
Patience is sometimes required to collect on a judgment. I got a non-TCPA
judgment for $7000 in a case filed in 1995. D was an attorney who moved away
during the pendency of the case and was careful to keep such a low profile for
years that I could not execute on my judgment. But, eight years after I filed
the suit, he got a little too comfortable and bought a nice car for his wife
in his own name (he leases his own car). Car registration check a month ago
(available to judgment creditors) showed that the car was free of any clouds
on title. Sheriff towed his car away this morning. I had a certified check in
my hands this afternoon. There can be justice.
For going after a company like fax.com, 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 liek the FCC forfeiture), the
fudiciary responsibility goes to the creditors, not stockholders, and you can
pretty easily show fradulent xfers.
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
Ask the question... is Fax.com still an operating corp?... go from there.
Force them into an involuntary chapter 13, show evidence of fraudulent
transfers, and go after Katz's bank accounts.
You can use an Affidavit of Identity to establish aliases for the debtors.
CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 699.510-699.560
CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 680.010-680.380
Orange county Affidavit of Identity form:
an excellent book is NOLO Press book: How
to Collect When You Win a Lawsuit in California.
see Google Directory - Business Financial Services Credit and Collection Collection Services Court Judgments
Questions for debtors Exam.
You also get up to 35 interrogatories. See
TCPA Litigation for interrogatories
and motion to compel.
Bring a turnover order and get cash, jewelry, cell phone and other items.
Be sure to ask for
a lien at the conclusion of the exam. See also: California Courts Self-Help Center Small Claims Collect Your Judgment Introduction to Collecting Your Judgment Sample Questions to Ask a Debtor
Debtor's exam is described:
You can examine every 120 days, or more frequently if you can justify it (CCP
In Missouri they are generally a waste of time, as the debtors assert their
5th amendment rights and don't answer. If you are clever you get a grant of
immunity from the county prosecutor, and that can short-circuit that trick.
Also, I always have a general execution and a sheriff on hand so I can take
their wallet and watch. Funny (unless they are up on their personal
I recently won a default judgment against Bridge 21 & Brewer
Accounting. Brewer has refused to answer rogs, so I ordered up a contempt
hearing (still a month away). In the mean time, I have been making regular
collection calls. Mr. Brewer has tended to duck those calls over the past few
days, and he never returns a call. On the odd occasion when I have reached
him, he would always tell me that "Bridge 21 is going to handle this;
their attorney will be in touch with you soon." Today, the sheriff served
Mr. Brewer with the contempt motion/summons.
This afternoon I received a call from a nasty guy who claimed to be an
attorney for Brewer. He ordered me to cease contact with his client regarding
this case. He demanded that all future communications should be through HIM,
as he is now entering an appearance in the matter (a day late & $7500
short). When I asked when he would have my check ready, he told me I wouldn't
be receiving a check from him. I pointed out that I have a valid judgment and
that this is now a collection matter, so I would continue my collection calls
to his client until I get paid. (That didn't make him happy at all.) According
to the attorney, Bridge 21's counsel has filed a motion to vacate the default
judgment (ought to be interesting). I told the attorney that if the judgment
is vacated, I'll stop attempting to collect, but barring that, the only way to
stop the collection process is to pay the bill. (That really pissed him off.)
The remainder of the conversation consisted of him yelling that I'd better
stop contacting his client and me advising the attorney that his client STILL
sends me faxes, even though I have repeatedly requested that they stop. I
asked why he believes his client should be insulated from contact from me when
I am still forced to receive direct communication from him. At this point, the
attorney was so angry that he hung up on me. I wish I would have gotten his
name, but I assume I'll receive something (though probably not my check) in
the mail from him soon. It's nice to see that Defendants are finally starting
to take this process seriously. All it took was a contempt motion.
Note: harassing or other conduct that rises to the level of a state law
tort will get you in trouble. Professional Collectors have
certain legal restrictions (such as the hours they can call you, etc). If you
aren't a professional collector, you have more leeway. The federal law doesn't
apply to a creditor who's directly trying to collect a debt, but some state
laws do. Read up on that before you find yourself on the wrong end of a
treble-damage lawsuit. Apart from those laws, abusive or harassing conduct can
be actionable as well.
For cashing checks, it's easiest to require a certified bank
check. Otherwise, try this advice:
If there is any concern over whether a check will clear or not, take it
to your bank and have it sent as a collection item, as opposed to depositing
it as a regular item. Your bank will send it to the payee's bank, who will
effectively cash the check and send back a bank/cashier's check in return.
In the event that there aren't sufficient funds in the account when it is
presented, you send it with instructions to "hold X days". They will wait
for sufficient funds to be available up to the amount of time you have
specified. Of course, if the account is closed, there is anything irregular
about the check (e.g. bogus signature), or sufficient funds do not become
available, it will then be returned unpaid.
The cost is set by your bank. It will be listed on your bank's schedule
of fees for your account type. My bank charges around $20 to send items for
For out of state judgments, see National Judgment Network
where you can find someone specializing in the state where the assets are.
You must get your judgment domesticated in the state where the debtor's
assets are located. So if you have a California defendant, who banks in Boston,
you will need to get a sister-state judgment in Massachusetts, and then have
that court issue a writ against the assets in that state. For more info, see Enforcing a judgment against an out-of-state debtor.
Here's the California
sister-state form ej105 that you'd use to collect against someone in
California. If they live here, you have to wait 30 days for them to object
before you get a Writ. If they don't live here (i.e., just have assets here),
you can get the writ immediately on the same form.
Here's a guy Charles Perez who
collects only in Calif, charges 35% on a minimum judgment of $3500. No recovery,
no fee. If he can't recover in 6 months, he gives it back to you. The basic rule is due to the effort involved, unless they can make
$1000, it's not economical for them to spend time to collect. So you should
expect to pay 50% if you have a judgment of $2000. A reasonable structure is they
keep the first $1,000 plus 35% of any amount above that. That gives them
incentive to collect as much as they can and ensures that they make money on the
Heartland Collection Services will
collect nation wide for a 50% fee. Not a bad deal considering. There are no
minimums (i.e., they'll collect on any sized judgment).
Lee at JDR Inc. has a 85% recovery rate (only fails when they go bankrupt)
and charges 40%. No minimum $ amount. He collects nationwide. 229-385-8905
Typically, you shouldn't pay more than 33% plus costs so 35% all inclusive is
a good deal.
If you are suing a common carrier like GCC or Global Crossing, they'll pay
your attorney fees for suing them and collecting. The rule is this: post
judgment attorneys fees are awardable if authorized by contract or statute. The
statute Title 47 USC 206 certainly allows them for those types of judgments. To
actually recover them you have to bring a noticed motion under California Rule
of Court 870.
Best ways to collect against a person:
- wage garnishment (they can't adjust his salary even if they are in
cahoots with him)
- bank levy
- ORAP/OEX (they get arrested if they don't show up if the notice was
served by a registered process server); you then apply for a bench warrant.
You pay $57 for the warrant. They will make 3 attempts to arrest at home.
Else, it goes on DMV. Bail out of jail for $1,000 cash goes to your judgment
payoff. If they don't show again, you repeat the process, but this time it
is 2,500 to get out of jail. Then $5,000, etc.
Both of these can be done by a registered process server and you get much
faster turnaround (they can do anything that isn't "physical"). To find out
their bank, it's best to ask someone who pays them or who they pay. You can use
the account info off of that. by subpoenaing their bank records (or getting it
in an OEX), you can get a list of people you can contact. If someone receiving
money cooperates with you (e.g., using subpoena if needed), they can give you
the banking info, e.g., right before they try to cash the check. If someone who
sends money to cooperates with you, you can ask them for the cancelled check and
get the bank info off the check. Some banks require you to serve the actual
branch where the account is located.
A process server can levy bank accounts statewide. You will need to have the
clerk issue a writ of execution specific to the county where the financial
institution is in. You will also need a letter of instruction to the sheriff.
Even though a process server serves it, the bank remits to the sheriff. The
process server will check with the appropriate sheriff for the local rules, and
let you know the specifics.
Best way to collect against a business:
- levy against a third party that owes the debtor money ("any and all
monies owed to the judgment debtor" by the third party)
- 48 hour keeper
- bank levy
Basically, a deputy sits there for 48 hour to make sure nothing goes in or
out. During that time, the sheriff does an inventory. If they don't pay off the debt,
they typically will seize, store, and sell whatever they can..
You probably won't be able to get a turnover order, assignment order, or seizure order
in small claims. While this is theoretically possible (and listed on the
California Courts Self-Help Center Small Claims Collect Your Judgment More Ways
to Collect a Judgment), nobody's heard of it being done before. The court
clerks haven't seen it done and the process servers haven't heard of it being
done either. If you've seen it done, let us know.
Assignment orders are done all the time. Seizure orders are rare. Turnover
orders are popular at the end of debtor's exams. There is no minimum time for a
48 hour keeper...they can seize and move it out immediately if you want; the 48
hour keeper is really an anachronism since the law has changed. You can
typically have 8 hour keepers tapping the till for as long as it is profitable
for you. Best ways to collect: Assignment order, bank levy, wage garnishment,
inventory seizure of ongoing business. Once you have a judgment, attorneys are
allowed to represent you at all proceedings, e.g. your attorney can do the ORAP.
You can do an ORAP of a third party or subpoena records in conjunction with an
ORAP (since it sets a date for the info to be produced). You can file in
superior court to consolidate your small claims judgments into a single
judgment. If there are >50 creditors, you can file a class action to do this so
there is a single creditor class that goes after them.
Beware of previous liens on assets, e.g., FCC judgment. So you can spend a
lot of money and be 2nd in line after the FCC.
Bryan Sampson (Sampson & Associates) in
San Diego (619) 557-9420 specializes in
hard to collect debtors. This guy is truly the master. $250/hr ($100/hr for
paralegal). 3 attorneys; 3 paralegals.
After they pay you
Be sure to inform the court. You must file a short Acknowledgement of
Satisfaction of Judgment portion of the Notice of Entry of Judgment. However, if
you recorded an Abstract of Judgment with the County Recorder, you must file the
full page Acknowledgement of Satisfaction of Judgment (Form SC-12a) after
signing it in front of a notary public and recording it in every county where
you filed the abstract.
If you aren't eligible for small claims
- If the defendants are out of state, or you a facing an appeal, or you want
to file a class action, you need to file in Superior court.
- You will have to file a complaint and serve the defendant.
- Here is a sample Superior Court
complaint that you can just fill in the blanks and file. You can have an
attorney represent you in court. This is pretty cheap if the other side
- If you want to do a bit more work, here is the
actual complaint that Covington and Burling filed against fax.com which
is excellent that you can modify to fit your circumstances.
- If the other side has a history of fighting lawsuits in court (get on the JunkFax-L
list and ask; fax.com will fight in court for example) then you have a
choice...There are two ways to do this: on your nickel or on your attorney's
nickel. I'd suggest the latter approach (unless you are wealthy and desire
to find out how poor people live). So you need to find a lawyer who will
take your case on a contingency basis. This means they don't charge you a
dime (except some small expenses) and split the rewards with you. But
they'll typically only do this by pursuing class actions, though sometimes a
demand letter from an attorney with a track record of winning in court will
be sufficient. They can often get a settlement quite quickly if they are
serious and the
defendant believes they are serious. This means that you've got to be willing to pursue
the case if they don't settle. The more cases you pursue and win, the more
credible your demand will be. I've personally made thousands of dollars at
no risk to myself by hiring an attorney (on a contingency basis) that the
other side knows will file if they don't settle. See Junk fax attorneys
for a list of attorneys in your area who take on these cases.
Small claims courtroom script
Explain purpose of the case
Explain facts of the case
- I received a fax from xxxx on date y (show the fax to the judge)
- Explain that the fax was sent without your express invitation
- Ask for treble remedy of $1,500 since the fax was sent willfully (see the Junk fax Q&A)
Explain that the TCPA applies to this case
If the judge hasn't seen one of these cases before, provide documents about
47 U.S.C. §
The term ''telephone facsimile machine'' means equipment which has the
(A) to transcribe text or images, or both, from paper into an electronic
signal and to transmit that signal over a regular telephone line, or
(B) to transcribe text or images (or both) from an electronic signal
received over a regular telephone line onto paper.
U.S.C. § 227(a)(4)
The term ''unsolicited advertisement'' means any material advertising
the commercial availability or quality of any property, goods, or services
which is transmitted to any person without that person's prior express
invitation or permission.
U.S.C. § 227(b)(1)(C)
It shall be unlawful for any person within the United States to use any
telephone facsimile machine, computer, or other device to send an unsolicited
advertisement to a telephone facsimile machine;
U.S.C. § 227(b)(3).
A person or entity may, if otherwise permitted by the laws or rules of
court of a State, bring in an appropriate court of that State -
(A) an action based on a violation of this subsection or the regulations
prescribed under this subsection to enjoin such violation,
(B) an action to recover for actual monetary loss from such a violation, or to
receive $500 in damages for each such violation, whichever is greater, or
(C) both such actions.
the court finds that the defendant willfully or knowingly violated this
subsection or the regulations prescribed under this subsection, the court may,
in its discretion, increase the amount of the award to an amount equal to not
more than 3 times the amount available under subparagraph (B) of this
Interpreting the law
- The TCPA pre-empts all
less restrictive state law. California law does not pre-empt federal law; California law provides
- The federal TCPA applies to all faxes, intrastate and intrastate
- TCPA been found to be constitutional (it's been around since 1991; if it
wasn't constitutional, you'd never see such major awards). The 9th circuit has upheld it as constitutional
(applies to California only... your circuit depends on where you live)
- The proper venue is state court; small claims court is applicable if
the amount is small
TCPA was designed as a deterrent, not to provide compensation for actual damages
(it is a remedial statute and provides a $500 statutory remedy)
- The court has no discretion in deciding whether to award the remedy - it must
rule based on the law, and if it finds for the plaintiff, the remedy of $500 is
- The judge is constitutionally bound by the laws of the U.S.
Congress when ruling on even small claims matters, and that he lacks any
discretion in this regard.
- If the court finds that the sender intended to send out unsolicited
advertisements, such as by purchasing a list of fax numbers or using a fax
broadcasting service or using some other list than a list of existing
customers, then the court may, at its discretion, assess a remedy of $1,500 per
- Ambiguity of "opt in" isn't ambiguous except to a few judges (see Junk fax Q&A).
Calfornia has not opted out of the TCPA.
- The burden is on the plaintiff to prove his case. However, if the
plaintiff says no express consent and the fax looks like a broadcast ad,
then the balance shifts to the defendant to show with preponderance of the
evidence that the recipient gave prior express invitation or permission.
Publication of a fax number does not constitute an invitation to send a fax.
Win a few TCPA cases before you try to argue the finer points of "per
violation" vs. "per fax" as most judges do not understand the
distinction. If you confuse the judge, you may lose.
For those of you outside California who win small claims judgments against
companies inside California, email email@example.com
and he will send you the very simple California Judicial Council form in .PDF
format to domesticate your judgment in California. An out of state judgment
against a California company means nothing until it gets domesticated. Then
the corporate credit reporting bureaus pick it up.
You do not have to name all joint tortfeasors in a suit. You can elect to
sue just one of them if you want. If a party is found to be indispensable,
then you can be compelled to join the minto the suit. That question can be
state specific, i.e., you don't have to name everyone.
See the Junk Fax Small
Claims Court Success Stories for examples of real cases. See also
Junk fax case status.
Have you had success in district court or small claims court? Will you write
up what your process and submit it to our site? Send it to us at Junk fax contact info.
For interesting legal tidbits, see
Lawsuit tips and tidbits