Stalking Law Hurts Small Claims Courts

MARCH 22, 2011


California’s Small Claims Courts are in trouble. Every year, fewer people take their cases before the local Judge Judy. But no one seems to know why this is happening, or even that the problem exists — or even if it is a problem at all.

In 20 years, annual Small Claims case loads have fallen by a third, from approximately 330,000 to 232,000 while the state’s population has increased by a fifth, from 29.7 million to 36.9 million

There is no evidence that fewer tree branches fall on neighbors’ cars now than 20 years ago, or that fewer tenants skip out on rent, or that landlords no longer fail to return security deposits.

And there is no evidence that Californians have become less litigious. In fact, the official 2010 report of the Judicial Council of California indicates that the number of so-called “limited cases” filed in Superior Courts have exploded over the same period, from under 500,000 to nearly 800,000. Limited cases are smaller civil suits, involving sums under $25,000, that are tried under rules that streamline both the trial and pre-trial preparation.

As in many social changes, it is possible that a number of factors contributed to the decline in the Small Claims caseload. But there is little, if any, research on the subject. Law journals rarely publish articles on Small Claims cases or procedural issues. Few lawyers want to read about them because there isn’t enough money involved — Small Claims cases can now have a maximum value of $7,500, but most involve far less.

It is possible that on the high end, many cases are siphoned off, to become limited cases. It is also possible that changes in public attitudes have reduced demand for Small Claims services. No one seems to know.

But one possible reason for the decline is that a single very good law — intended to foil violent stalkers — has had an unintended but damaging effect on the ability of plaintiffs to seek justice.

Why Small Claims Courts Matter

First of all, it should be understood that Small Claims Courts are a good thing. They resolve minor disputes that the traditional, and very expensive, legal system is not designed to handle.

According to Whittier Law School professor Radha Pathak, who specializes in civil litigation, “Small Claims Courts allow for recovery in cases where getting a lawyer is prohibitive.”

Just as important, they tell ordinary good people that the system is working for them on a very personal level, and ordinary bad people that they can’t get away with cheating others.

Let’s say that you lent a friend a thousand bucks, but he won’t pay you back. Or you bought an English antique that turned out to have been made last year in North Korea.

As Pathak says, it wouldn’t be practical to hire a lawyer in such cases. After a few consultations, legal bills would eat up everything you might recover, never mind the cost of a court appearance.

In Small Claims Court, lawyers aren’t allowed in the room. Filing fees are low. Procedures are informal, and rules of evidence are relaxed. Judges ask most of the questions.

All you, as the plaintiff, have to prove is that your neighbor broke the potted plant he borrowed, or that a carpenter didn’t do the work that he was paid to do, and what it would cost to set everything right. Unless the defendant confesses, receipts, pictures and estimates are usually necessary.

Like the fabled Judge Judy, Small Claims judges — usually “commissioners,” experienced lawyers hired to perform as judges — know what they’re doing and are quick to get to the bottom of cases. They’ve heard all of the excuses, and don’t suffer fools gladly. Unless the judge feels that the case touches an unusual point of law, judgment is very quick. Decisions are often rendered before the plaintiffs finish presenting their cases. And there’s no jury to be confused.

“But I have more evidence…” a surprised plaintiff once told a Small Claims judge.

“Don’t complain,” the judge told him. “You’ve already won. Sit down.”

Sadly, for many people, the Small Claims Court system doesn’t work well, and hasn’t worked for two decades. A major reason for the decline of Small Claims Courts, perhaps the single major reason, appears to be fallout from an infamous 1989 stalking murder.

The Rebecca Schaeffer Law

On July 18, 1989, a stalker went to the front door of my former neighbor on Sweetzer Ave. in West Hollywood, and shot her to death. My neighbor was a popular young television actress by the name of Rebecca Schaeffer, who was recently featured in the CBS comedy series “My Sister Sam,” starring Pam Dawber, of “Mork and Mindy” fame. I had moved from Sweetzer Ave. roughly 18 months before.

The killer, an unemployed drifter from Arizona by the name of Robert John Bardo, found Schaeffer’s address by looking her up at the Department of Motor Vehicles. (Bardo was subsequently prosecuted by Los Angeles Deputy District Attorney Marcia Clark, who later made something of a name for herself in the O.J. Simpson murder case.)

In response to this senseless crime, Rep. Ed Royce, then a state senator, introduced pioneering legislation that prevented stalkers, and anyone else, from gaining access to DMV records. Gov. George Deukmejian signed the bill into law in 1990 and it became effective the following year. Soon, all other states adopted similar provisions.

As an unintended consequence, in California, at least, scoundrels and miscreants can hide in plain sight. If an unlicensed contractor provides a phony address on his invoice, you can’t ask the DMV where he actually lives. The records are sealed to everyone except the police while investigating crimes, lawyers, and private investigators.

This means that you can’t sue someone if you don’t know where he lives because you can’t serve him with a subpoena. And if you manage to subpoena him, but he subsequently moves, you can’t collect. Online phone directories can help, but their information is incomplete and not always up to date. Private investigators can easily find the information online, but they can charge more money for a few Internet clicks than many injured parties could expect to recover from a lawsuit.

The result is a system that is limited to people who know each other, and well-established brick-and-mortar businesses. In California, you can sue an ex-friend, or Fred’s Computer Store, but not the guy who sold you a broken laptop on Ebay or Craigslist.

This doesn’t happen everywhere in the United States. Congress adopted the Driver’s Privacy Protection Act in 1994, establishing a national standard for such laws. The federal statute, now codified in Section 123 of Title 18 of the United States Code, does not prohibit the use of DMV records in legal matters. According to the act, records may be released:

For use by any government agency, including any court or law enforcement agency, in carrying out its functions, or any private person or entity acting on behalf of a Federal, State, or local agency in carrying out its functions.

In this case, the federal law appears to be more flexible than California’s. Anyone “carrying out the functions” of a court of law would be able to make use of DMV records. This would include a marshal or deputy sheriff tasked to deliver a subpoena. Legal language matching the Driver’s Privacy Protection Act would allow marshals or deputies to serve subpoenas based on addresses already in their possession.

A Bad Experience

The problem of subpoena service in Small Claims Court came home to me a few years ago after my car broke down. I needed another one immediately, so I bought a used car through Craigslist. The seller brought over a Nissan, and we made a deal. But I soon discovered that the car was held together with chewing gum, leaked oil and needed more repairs than it was worth.

I filed a case with Small Claims, but the local sheriff’s department — some counties use deputies, others use marshals — wouldn’t deliver the subpoena. “The address is wrong,” the deputy said. “He’s moved.”

As it turned out, the deputies knew precisely where the deadbeat had moved, but wouldn’t deliver the subpoena to the new address because I didn’t know what it was.

“It’s the law,” a sheriff’s sergeant said, in a not very friendly way, and that was that.

I called Craigslist, but they have a non-disclosure policy as well. They would release the information if subpoenaed, but the local sheriff’s department wouldn’t drive north to San Francisco to deliver one.

Nevertheless, I found the business address of the cheat’s associate and had him served at work. I presented my evidence, my receipts and photos. The judge was smart, and brooked no nonsense from the defendant. He awarded me everything I asked for, including punitive damages.

So I had my day in Small Claims, not that it did any good. I couldn’t collect a dime because I ran up against the same black hole: The defendant closed his car repair shop, and the DMV wouldn’t release his home address, for precisely the same reason.

I was stuck with a worthless judgment and had wasted my time, the court’s time, and my court fees — all because my neighbor was murdered back in 1989. (Ironically, I managed to cost the villain more than he would have had to pay me for the car. I called the state agency that regulates car dealers. Since he was, in effect, operating a dealership without a license, they called him into the office and bluntly told him to stop selling cars or face prison. But even they wouldn’t tell me where he lived.)

How much does the decline in the use of Small Claims Courts reflect the problem of defendants hiding in plain sight? No one seems to know.

According to Philip Carrizosa, spokesman for the San Francisco-based Judicial Council of California, which oversees the court system, “We don’t collect any statistics showing the success or failure of collections from Small Claims.”

The only statistics that the courts keep on Small Claims cases are the total number that they adjudicate. No one at the Judicial Council seems to be aware that this number is on a steady, downward trajectory, much less why.

While it may be reasonable to conclude that those who run up against the system’s seeming inability to subpoena defendants are much less likely to use Small Claims’ services again, it is also true that no one seems to know how often this happens or if the problem is a factor in the decline in Small Claims.

Privacy vs. Accountability

Any reform of the Rebecca Schaeffer law must find a new balance between the right of privacy and the right of redress through the courts.

But those who engage in commerce already sacrifice a measure of privacy.

In California, owners of corporations are required to register with the state, and those operating a DBA (doing business as) must register with local authorities.

“A balancing of policies is required,” Pathak says. “The law was created to allow people privacy, but there is a public interest in giving people access to Small Claims Court.”

However, Pathak doesn’t believe that the Rebecca Schaeffer law should be modified. “I am not convinced that this law is having [this] bad effect, so I don’t think that it is yet necessary to reconsider the wisdom of that law,” she says.

Pathak suggests that a major reason for the decline in small claims may be seen in the increase of limited case filings. “In my opinion, it is very possible that some of the cases that would previously have gone to small claims are now ending up as limited filings, perhaps because the size of disputes has risen. There might be other explanations as well.”

She may be right. But a 2002 study for the Judicial Council, conducted by Policy Studies Inc., quoted a survey by the city of Fresno which found that 75 percent of Small Claims cases involved sums of $2,500 or less — amounts too small to be tried in Superior Court, even under limited case rules.

That survey may be obsolete. On the other hand, Pathak’s colleague Ken Agran believes that the problem may not be found in the law but in the policies of local marshals and sheriffs. “I haven’t read this law, but it seems reasonable this is within the scope of the exception [for lawyers], because in Small Claims court you’re acting as your own lawyer. And if you hire an official agency to actually deliver the paperwork, that would seem consistent as well.”

Agran suggests that “there are all kinds of reasons” why Small Claims caseloads might have declined, and that “it would be useful to find out through surveys.”

So far, it doesn’t appear that anyone has conducted such surveys, at least none that are both rigorous and widely circulated. Nor has anyone examined the operations of similar courts in other states to see if they are suffering a similar decline, and if not, why not.

Meanwhile, Small Claims cases dwindle, and plaintiffs are either forced into more expensive litigation with attorneys, or to abandon the pursuit of justice entirely.

And a 1989 law intended to frustrate violent stalkers is still enforced against Small Claims plaintiffs in the age of Craigslist.

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