JunkFax.org - User contributions [en]

Legal Tips

2022-07-19T14:40:14Z

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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===

*Try Yahoo yellow pages in the zip code of the person being served. Enter the zip or city first, then type "process server"
*Also, many process servers will figure out how to serve anywhere for you.
*Other links:
**[http://www.canadianprocessserving.com www.canadianprocessserving.com]
**[http://www.unitedstatesprocessserving.com/ www.unitedstatesprocessserving.com]

===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 requires an [http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=us/249/378.html obstruction of the operation of the court (EX PARTE HUDGINGS , 249 U.S. 378 (1919)]. See also: [http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=us/326/224.html IN RE MICHAEL, 326 U.S. 224 (1945)]
*So perjury by itself is not a contempt. But refusing to answer a question after being ordered to (e.g., in a JDX) would be a contempt since it is interfering with the judge's process. Similarly, doing a 170.6 on a judge based on false testimony would be a contempt since it would be like a failure to appear which delays a trial.

===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 [[Media:DC_Laws.pdf|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,'' [http://laws.lp.findlaw.com/us/357/235.html 357 U .S. 235, 253 (1958)] (''quoting International Shoe Co. v. Washington,'' [http://laws.lp.findlaw.com/us/326/310.html 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 [[Media:Flocco.pdf|''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).

:Basically, 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): [[Media:OrderToComplyWithSubpoena.pdf|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===

*3294 and 3295 might be raised, but this protection only applies if the sole reason for the discovery is for punative damages only.
*[http://www.adminpolicies.ucla.edu/APP/Number/120.1 UCLA Procedure 120.1 Producing Records Under Subpoena Duces Tecum and Deposition Subpoenas] is a great overview.

===Out of state depositions===

*Many states, like Florida, have adopted the Uniform Depositions Act. See [https://web.archive.org/web/20111014203618/www.utahbar.org/barjournal2000/html/january_february_2001_2.html How to take 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: [https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CCP&sectionNum=116.830 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 [https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=CCP&division=2.&title=9.&part=2.&chapter=6.&article=1. CA Codes (ccp708.010-708.030)]] for the interrogatories and [https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=CCP&division=2.&title=9.&part=2.&chapter=6.&article=2. 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 [https://web.archive.org/web/20110126054928/www.tcpalitigation.com/ 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 [[Media:GlaxoMotionCompel.pdf|GlaxoMotionCompel]]

:[[Media:Geisthomsipatriotact.pdf|Geisthomsipatriotact]]

:[[Media:Business_Records_Protection_Act.pdf|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:

*[[Media:WilsonOSCcontempt.pdf|Wilson OSC Contempt]]
*[[Media:WilsonOSCcontemptAffidavit.pdf|Wilson OSC Contempt Affidavit]]
*[[Media:WilsonOSCExhibits.pdf|fax/action/WilsonOSCExhibits.pdf]]

:Bench Warrants

*[[Media:WilsonBenchWarrantApplication2005_02_03.pdf|WilsonBenchWarrantApplication2005_02_03.pdf]]
*[[Media:WilsonBenchWarrantIssued.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 [http://home.earthlink.net/~geoffbryan/contempt.html 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: [[Media:International_Litigation.pdf|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 [http://jolt.law.harvard.edu/articles/pdf/v17/17HarvJLTech211.pdf 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===

*In general, you can serve a document on a foreign entity via process server in that country, international register mail, or forwarding the document to the sheriff in the county where the entity is. These [http://hcch.e-vision.nl/index_en.php?act=conventions.pdf&cid=17 methods of service of process are called out in Article 10 of the Hague Convention]. For example, see [https://travel.state.gov/content/travel/en/legal/Judicial-Assistance-Country-Information/Canada.html Judicial Assistance in Canada].
*Simplest: [http://www.pfiserves.com/ PFI - Nationwide and International Process Servers - Process]
**See [https://www.hcch.net/ Process Forwarding International (PFI) – The Hague Service Convention]
*For help in Preparation and instructions for what to do with it, have your attorney contact: Legal Language Services, 800-755-5775; ask for Cara. She is THE expert on this. It's complicated:
**You may or may not need a translation
**You have to write a $50 check in Canadian funds (bank check?)
**You need a $650 bank check to the US Embassy
** Everything has to be sent to the proper place
**etc.
**You may be able to bypass the diplomatic channel in some countries.
**see [https://travel.state.gov/content/travel/en/legal/travel-legal-considerations/internl-judicial-asst/obtaining-evidence/Preparation-Letters-Rogatory.html Preparation of Letters Rogatory] at [http://www.state.gov/ www.state.gov].
**See also: [http://www.processnet1.com/Canada.htm Canada process service]
**If you do it in Quebec, you have to get a translation of everything into French. Allow 3 months if you do it the fast way with a lawyer in Quebec accepting the letters Rogatory (instead of diplomatic channels)
**Fastest way is if they voluntarily accept it.
*This is really good: [https://web.archive.org/web/20070815105919/cobrands.business.findlaw.com/business_commercial/legal/source/business_events/be20_5foreign.html FindLaw How to Serve a Foreign Party The Basics]
*State dept pages:
**[https://travel.state.gov/content/travel/en/legal/Judicial-Assistance-Country-Information Judicial Assistance in Canada]
**[https://travel.state.gov/content/travel/en/legal/travel-legal-considerations/internl-judicial-asst/Service-of-Process.html Hague Convention on Service Abroad] (see informal delivery section)
*Hague convention on service abroad: [http://hcch.e-vision.nl/index_en.php?act=conventions.text&cid=17 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.
*[http://www.legallanguage.com/Hague/haguetx20e.html 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 [[Media:lse_20catot_e.pdf|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: [https://travel.state.gov/content/travel/en/legal/travel-legal-considerations/internl-judicial-asst/obtaining-evidence.html Obtaining Evidence Abroad]
*see [http://www.abanet.org/genpractice/magazine/oct99bur.html SERVICE OF PROCESS ABROAD]
*[https://web.archive.org/web/20050323002643/www.bakernet.com/NewsLetters/Article.asp?ArticleID=4284&EditionID=508&URL=%2FNewsLetters%2FNewsletter.asp&NLID=30 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 [http://www.state.gov/ www.state.gov]. For Canada, can use International Registered Mail. See [https://travel.state.gov/content/travel/en/legal/Judicial-Assistance-Country-Information/Canada.html 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 [https://www.hcch.net/en/instruments/conventions/full-text/?cid=17]. 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 [https://web.archive.org/web/20101108101140/www.insurancescrawl.com/ Insurance Scrawl] and [https://web.archive.org/web/20090703002639/www.insurancescrawl.com/archives/2006/03/blast_fax_--_po.html Insurance Scrawl Blast Fax -- Policyholders Continue to Obtain Defense Coverage]. 

==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:

:[https://web.archive.org/web/20081214210749/www.utahbar.org/barjournal2000/html/january_february_2001_2.html]

==Bad apple attorneys==

*Crime fraud exception to the attorney-client privilege (see [http://www.lectlaw.com/def/c180.htm 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
**[https://www.courts.ca.gov/documents/subp025.pdf 982a155] form, but instead use this Acrobat-enabled Version: [[Media:NoticeToConsumer.pdf|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: [https://web.archive.org/web/20160215212130/www.dol.gov/ebsa/oemanual/cha33_appP.html http://www.dol.gov/ebsa/oemanual/cha33_appP.html]. This is a handy form to use: [http://www.bankersonline.com/forms/rfpa_certificate.pdf rfpa_certificate]
*Detailed information is in Rutter Group: Civil Proc. before Trial (see [8:580])
*Also good is: [https://web.archive.org/web/20061206212548/www.calbuslit.com/recordsdepo.asp 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:===

*[[Collection Tips]] and tidbits
*[[CA How to Sue|How to get $2,500 per junk fax (California only)]]
*[[How to Sue|How to sue people (general legal tips)]]
*[[How to Sue in Sm Claims Ct|How to sue in small claims court]]
*[[Media:NoticeToConsumer.pdf|NoticeToConsumer.pdf]]
*[[Media:debtorsExam.pdf|debtorsExam.txt]]
*[[Pump and Dumps|How to sue on pump and dump faxes]]
*[https://andersonwanca.com/practice-areas/junk-faxes/ Junk Fax Class Action Lawsuits]

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

How to Sue

2022-07-19T14:35:26Z

Proceedinnovative: /* More information */

==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:

*[[CA How to Sue|How to get $2,500 per junk fax (California only)]].
*If you are not in California, it's more complicated; see [[Outside How to Sue|How to get $2,500 per junk fax (Outside California)]].

Otherwise, here is some useful background information

===Process===

* You must first find out who is faxing you. See [[How to ID|How to identify who is sending you junk faxes]].
* 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 [[Media:faxcomBattaglia.pdf|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 [[Junk Fax 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 early.
* In order to sue in small claims court, you must first send them a demand letter. Here is [[Media:sampleDemandLetter.pdf|the demand letter Propel uses]] and the [[Media:sampleSettlement.pdf|settlement agreement Propel uses]] and a [[Media:FirstCharteredSettlement.pdf|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 claims."
* If you are diligent, you will win. The law is on your side. You may win in small claims if you [[Media:fenerty.pdf|get a good judge as Robert Fenerty did]] and as [[Media:MarkeyIDC.jpg|Lawrence Markey got]], or you may have to appeal. But if you are persistent, you will win.

===Which court?===

* 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 [[Junk fax attorneys|list of attorneys who handle junk fax cases]].

===Small claims court overview===

See [http://www.courtinfo.ca.gov/selfhelp/smallclaims/scbasics.htm 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 Sm Claims Ct|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 applies).
* Send a demand letter by certified mail. What's really cool is you can now [[www.usps.com/netpost/certifiedmail/|send a certified letter online]] without having to go to the post office. Here's [[Media:KirschDemandLetter.pdf|the demand letter I use]]. Here's another [[Media:BlockDemand.pdf|junk fax demand letter]]. And here's [[www.keytlaw.com/faxes/demandltr.htm|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 [[www.usps.com/netpost/certifiedmail.htm|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 [[tinyurl.com/ywlo3|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 [[Media:TCPAbrief.pdf|draft complaint you can modify]].
* 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 48 hours.
* 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 Defendant).
* 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 intentional act.
* So the fact that the advertiser entered into an agreement to send faxes which probably had an indemnification clause demonstrates both knowingly and willfully.
* Here are some actual [[Media:faxComContractsAndWillful.pdf|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 [http://www.serve-now.com/ process server in any area of the US].

Pricey alternative: [http://www.pfiserves.com/ PFI - Nationwide and International Process Servers - Process Forwarding International)].

You can use substituted service without due diligence if you are using small claims court.

Here's info about [[Media:ServiceOnPOBox.pdf|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 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.

: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 U.S. Mail.

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, supra.

: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. 1995).

===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 declare bankruptcy)
* 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===

* This is excellent overview that is concise: [[www.inyocourt.ca.gov/small%20claims.htm|Small Claims]]
* For additional background, read [[smallclaim.info/zen.php|Zen and the art of small claims]]
* Read this: [[Judge Info|TCPA information]]
* Save all your junk faxes!
* Read this [[Media:fenerty.pdf|small claims court judgment for the Plaintiff]]
* Read [[Junk Fax Q&A]]
* Read [[Defenses|defense arguments]]
* Read [[Cases|what others are doing]]
* Read excellent step-by-step guide to [[www.consumerwatchdog.org/other/fs/fs001543.php3|How to Use a Federal Law to Make Junk Faxers Pay You]] and [[www.keytlaw.com/faxes/junkfaxlaw.htm|Federal Junk Fax Law]] which is a single page summarizing the law and how to take action to recover payment.
* Read the process below
* Read [[www.keytlaw.com/faxes/ninetips.htm|How to Collect Money from Arizona Junk Faxers]] which is excellent and applies in all states.

===To bring with you to court===

* Trial brief: Here's a short [[Media:TCPAbrief.pdf|trial brief you can modify]]
* [[Judge Info|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: [[Media:fenerty.pdf|Fenerty decision]].
* In California, I always bring a copy of the [[Media:EnrolledBillReport.pdf|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 [[Media:Kaufman_v_ACS_Sytems.pdf|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 [[info.sen.ca.gov/pub/01-02/bill/asm/ab_2901-2950/ab_2944_bill_20020919_chaptered.html|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 [[Media:fenerty.pdf|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 [[Media:MarkeyIDC.jpg|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 right one.
* 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 [http://www.courtinfo.ca.gov/selfhelp/smallclaims/scbasics.htm 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 [[www.occourts.org/locforms/l1189.pdf|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 [[www.leginfo.ca.gov/cgi-bin/displaycode?section=corp&group=02001-03000&file=2100-2117.1|CA Codes Corp 2111]]
* 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 ([[ist-socrates.berkeley.edu:7015/bpc17538.html|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 side.
* 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 [[Media:fenerty.pdf|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 [[www.consumerwatchdog.org/other/fs/fs001543.php3|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 [[www.imc.org/imc-spam/smallclaims.html|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:
** [http://www.courtinfo.ca.gov/selfhelp/smallclaims/ California Courts Self-Help Small Claims]
** [http://www.courtinfo.ca.gov/selfhelp/smallclaims/howtoprepare.htm How to Prepare, File, and Serve a Claim]
** [http://www.courtinfo.ca.gov/selfhelp/smallclaims/collect.htm How to Collect On a Claim]

:For more details see the contributed article "[[How to Sue in Sm Claims Ct|How To Sue in Small Claims Court]]". In general the process will be something like:

:* 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 [http://www.courtinfo.ca.gov/selfhelp/smallclaims/collect.htm How 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 for $3,000.

===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 court.

For filing for changes, make sure you use one form per case number. File the signed originals with the court.

===Sharing evidence===
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.

===Subpoenas===

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 object.

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 ([[snipurl.com/5wt1|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 [[snipurl.com/76g0|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).

:Other Rules relating to court records in California include Rule 243 of the California Rules of Court ([[snipurl.com/76fw|http://snipurl.com/76fw]], titled "Court Records"), Rule 243.2 ([[snipurl.com/76g4|http://snipurl.com/76g4]], titled "Procedures for Filing Records Under Seal"), and Rule 243.3 ([[snipurl.com/76g5|http://snipurl.com/76g5]], titled "Request For Delayed Public Disclosure").

: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 court.

:• -- 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.

:What's Open

: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)).

:What's sealed

: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 Protection Act.

: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 denied automatically.

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 would happen.

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.

===Countersuits===
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 win.

===Appeal by the defendant===

The Defendant can appeal only if he showed up at the original trial ([[www.leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=00001-01000&file=116.710-116.795|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 an attorney.

See [[www.occourts.org/locforms/l1177.pdf|California Information for small claims appeals: Code of Civil Procedure sections]] and [[www.co.monterey.ca.us/court/vacate_a_default_judgement.html|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 [[Media:VacateRequest.pdf|good supporting brief to go along with the motion]].

===Jail time===

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.

===Collecting===
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: [[Media:CovingtonJudgment.pdf|CovingtonJudgment]]. See also [[bankruptcy-law.freeadvice.com/collections/enforce_judgment.htm|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: [[consumer-affairs.co.la.ca.us/SmallClaims/Sister%20State%20Judgmnts.htm|Sister-state judgments]]

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: [[www.courtinfo.ca.gov/forms/|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 [http://www.courtinfo.ca.gov/selfhelp/smallclaims/collectproblems.htm#correctname 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 708.160(c).

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 equity.

: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 [http://www.courtinfo.ca.gov/selfhelp/smallclaims/collectmoreways.htm 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 [[info.sen.ca.gov/cgi-bin/displaycode?section=ccp&group=00001-01000&file=700.010-700.200|700.080(c)]]). Liens are nice, but levies (seize and sell) on bank accounts, stuff in their home, etc. are much better.

[[www.scacadvice.com/pages/collecting.htm|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 [http://www.courtinfo.ca.gov/selfhelp/smallclaims/collectintro.htm#howmuch Introduction to Collecting Your Judgment] for more info on interest on interest; see [http://www.courtinfo.ca.gov/selfhelp/smallclaims/collectintro.htm#outofpocket 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 ('''O'''rder to '''A'''ppear for '''Ex'''amination), 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 order...

:'''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 stockholders.

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. See

:[http://caselaw.lp.findlaw.com/cacodes/ccp/699.510-699.560.html CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 699.510-699.560]

:[http://caselaw.lp.findlaw.com/cacodes/ccp/680.010-680.380.html CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 680.010-680.380]

:Orange county Affidavit of Identity form: [[www.occourts.org/locforms/l2527.pdf|l2527]]

See also:

* [[experts.about.com/q/912/index.htm|Collections Law Previous Question List]]
* [http://www.courtinfo.ca.gov/selfhelp/smallclaims/collect.htm How to Collect On a Claim.]
* [[www.studentlegal.ucla.edu/Crtjdgmt.htm|HOW TO COLLECT A COURT JUDGMENT]]
* [[www.las-elc.org/collections.pdf|collections]]
* [[www.gibblaw.com/article8.htm|Turning Judgments Into Dollars]]

an excellent book is NOLO Press book: [http://www.nolo.com/lawstore/products/product.cfm/ObjectID/6E36E0CE-5D53-4556-B39A66E48DA6B987 How to Collect When You Win a Lawsuit in California].

see [[directory.google.com/Top/Business/Financial_Services/Credit_and_Collection/Collection_Services/Court_Judgments/|Google Directory - Business Financial Services Credit and Collection Collection Services Court Judgments]]

Questions for [[Media:debtorsExam.pdf|debtors Exam]].

You also get up to 35 interrogatories. See [[www.tcpalitigation.com/|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: [http://www.courtinfo.ca.gov/selfhelp/smallclaims/collectsampquest.htm 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:

* [http://www.courtinfo.ca.gov/selfhelp/smallclaims/collectintro.htm#debtorsexam California Courts Self-Help Center Small Claims Collect Your Judgment Introduction to Collecting Your Judgment]

You can examine every 120 days, or more frequently if you can justify it ([[www.leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=00001-01000&file=708.110-708.205|CCP 70.110(c)]]).

More Advice:

: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 exemptions).

---------------------------

: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 collection.

For out of state judgments, see [http://www.nationaljudgment.net/ 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 [http://bankruptcy-law.freeadvice.com/collections/enforce_judgment.htm Enforcing a judgment against an out-of-state debtor]. Here's the [http://www.courtinfo.ca.gov/forms/fillable/ej105.pdf 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 [[resultsrecovery.com/|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 deal.

[[www.getmycash.com/|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
* Vehicle
* 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 [http://www.courtinfo.ca.gov/selfhelp/smallclaims/collectmoreways.htm#seizure 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.

More info:

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 [[Media:sampleComplaint.pdf|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 doesn't show.
* If you want to do a bit more work, here is [[Media:covington.pdf|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 [http://www.junkfaxes.org/junkfax-l.htm 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 the TCPA

===The law===

[http://www4.law.cornell.edu/uscode/47/227.html 47 U.S.C. § 227(a)(2)] 
The term ''telephone facsimile machine'' means equipment which has the capacity 
(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.

[http://www4.law.cornell.edu/uscode/47/227.html 47 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.

[http://www4.law.cornell.edu/uscode/47/227.html 47 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;

[http://www4.law.cornell.edu/uscode/47/227.html 47 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.

If 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 paragraph.

===Interpreting the law===

* The TCPA pre-empts all less restrictive state law. California law does not pre-empt federal law; California law provides additional restrictions
* 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
* The 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 mandatory.
* 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 violation.
* 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.

===Additional tips===

: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 [mailto:ifmds@earthlink.net ifmds@earthlink.net] 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.

===Success Stories===

See the [[Small Claims Success Stories|Junk Fax Small Claims Court Success Stories]] for examples of real cases. See also [[Cases|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 [[Contact|Junk fax contact info]].

===More information===

For class action lawsuits, see https://andersonwanca.com/practice-areas/junk-faxes/