Discussion:
Discover decides to file late appeals for our small claims cases
(too old to reply)
Joe Wagner
2004-04-25 20:47:25 UTC
Permalink
Hi all,
On April 9, the 30 day deadline passed for Discover Financial
Services to appeal two $5k victories I won in small claims court for
Discover Credit Card spam. Today I received in the mail notices from
the small claims clerk that DFS has filed two appeals of the verdicts,
filed April 22. I figured a number of people here may have had
experience with defendants filing late appeals of verdicts in CA so
duggestions are always welcomed. Hopefully I will be able to get the
court to enforce the deadline's date and turn down the appeal, but
we'll see. If not, then perhaps down the road I'll have the
opportunity to get full copies of the contracts of every spammer that
made money sending DFS spam to add to what we already have (see
http://legal.hypertouch.com/discover/).

Here's the text of the cover letter the DFS's local law firm,
Buchalter Nemer Fields & Younger, sent to the Judge:
--begin letter--
File Number: D5854-0007
Direct Dial Number: (213) 891-5265
E-Mail: ***@buchalter.com

April 12, 2004

Re: Hypertouch Inc. v. Discover Financial Services, Inc. Small Claims
Case No. SCC 101498 Notice of Appeal

Dear Judge:

On March 11, 2004, judgment was entered in the above matter in favor
of Plaintiff, Hypertouch Inc., and against Defendant Discover
Financial Services, Inc. Notice of Entry of Judgment was mailed to one
of Defendant's customer service centers in Phoenix, AZ that same date.
However, Defendant's agent for service of process, as indicated on
Plaintiff's claim (also enclosed), is located in Los Angeles.
Consequently, Defendant (specifically, Defendant's legal department in
Illinois) did not actually receive the Notice until March 16, 2004, as
indicated by the date stamp in the upper right hand corner on the
enclosed Notice.

Our office represents Defendant, and desires to file the enclosed
Notice of Appeal with the Superior Court. However, we realize that the
30 day time limit to file the Notice of Appeal expired on April 10,
2004, which was this past Saturday. We respectfully request that since
service of the Notice of Entry of Judgment was defective, and
Defendant did not receive the Notice until March 16th, and because the
30'h day fell on a Saturday, the Court accept the enclosed Notice of
Appeal.

Thank you.

Respectfully,

BUCHALTER, NEMER, FIELDS & YOUNGER A Professional Corporation

By

[signature]

Jennifer A. Smith
--end letter--

In fact, the court mailed the judgment correctrly, using the address
the defendant gave in court in response to the Judge's question of to
what entity and to where the judgment should be mailed. Since the
defendant themselves gave the court that new address, one would
presume they shouldn't be very well able to turn around and call the
Notice "defective." There was no cover letter at all included in
DFS's curtesy copy to me of the second appeal (case #101499) and to
top it off, DFS uses the wrong street address in their mailings to us
but luckily the local postman caught it and redirected it.

Joe
Socks the white house cat
2004-04-25 21:30:03 UTC
Permalink
Someday in the distant future, archeologists digging thru the ruins of
Post by Joe Wagner
Hi all,
On April 9, the 30 day deadline passed for Discover Financial
Services to appeal two $5k victories I won in small claims court for
Discover Credit Card spam. Today I received in the mail notices from
the small claims clerk that DFS has filed two appeals of the verdicts,
filed April 22. I figured a number of people here may have had
experience with defendants filing late appeals of verdicts in CA so
duggestions are always welcomed.
Immediately file an objection to the extension, based on the same arguments
you presented here. Copy their attorney on the objection. Also advise
their attorney that you are contacting the appropriate party to begin
enforcement/collection action if payment is not made in 10 days. You also
probably have a statutory right to a reasonable interest rate on
outstanding judgements. Propose to Discover's attorney that the
appropriate interest rate should be the same that they charge for overdue
payments from card holders :-)
--
officially recognized SPEWS puppet
ISO certification and everything
I AM SPEWS
(SLAPP PREVENTION ELECTRONIC WHITENOISE SYSTEM)
Socks the white house cat
2004-04-25 21:37:09 UTC
Permalink
Someday in the distant future, archeologists digging thru the ruins of
news.admin.net-abuse.email will discover that Socks the white house cat
Post by Socks the white house cat
Someday in the distant future, archeologists digging thru the ruins of
news.admin.net-abuse.email will discover that
Post by Joe Wagner
Hi all,
On April 9, the 30 day deadline passed for Discover Financial
Services to appeal two $5k victories I won in small claims court for
Discover Credit Card spam. Today I received in the mail notices from
the small claims clerk that DFS has filed two appeals of the
verdicts, filed April 22. I figured a number of people here may have
had experience with defendants filing late appeals of verdicts in CA
so duggestions are always welcomed.
Immediately file an objection to the extension, based on the same
arguments you presented here.
[snippity do dah]

On second thought, rather than rely on the amateur legal counsel on nanae,
buy an hour of a real lawyer's time. Take everything with you. Get a real
opinion. See what s/he'd charge to write an objection to the appeal, and
what the chances were of winning on the objection and/or winning the whole
thing if the right to an untimely appeal gets upheld.
--
officially recognized SPEWS puppet
ISO certification and everything
I AM SPEWS
(SLAPP PREVENTION ELECTRONIC WHITENOISE SYSTEM)
Joe Wagner
2004-04-26 01:54:44 UTC
Permalink
Propose to Discover's attorney that the appropriate interest rate should
be the same that they charge for overdue payments from card holders :-)
Heh. That made me laugh...and it's an excellent idea if only to have
DFS respond in court that their interest rates with late fees of
course are not reasonable. Their fee schedule was part of the
exhibits I entered in the court cases.
buy an hour of a real lawyer's time. Take everything with you. Get a real
opinion. See what s/he'd charge to write an objection to the appeal
That's a thought. But the point of going through small claims was to
get justice without letting DFS start bleeding us dry with legal
bills. Beside, John is busy concentrating on preparing for our
CAN-SPAM case in Federal Court with BobVila.com and BlueStream Media.

Joe
Socks the white house cat
2004-04-26 04:21:39 UTC
Permalink
Someday in the distant future, archeologists digging thru the ruins of
news.admin.net-abuse.email will discover that
Post by Joe Wagner
Post by Socks the white house cat
buy an hour of a real lawyer's time. Take everything with you. Get a
real opinion. See what s/he'd charge to write an objection to the
appeal
That's a thought. But the point of going through small claims was to
get justice without letting DFS start bleeding us dry with legal
bills. Beside, John is busy concentrating on preparing for our
CAN-SPAM case in Federal Court with BobVila.com and BlueStream Media.
My thinking on this one is that writing an objection to a late appeal is
something a second year law student or paralegal could do with proper
supervision, in about 30-60 minutes. Ought not to cost a significant
amount of money. You could probably write it as well, but a real lawyer
ought to review it to make sure that you haven't omitted something
critical.
--
officially recognized SPEWS puppet
ISO certification and everything
I AM SPEWS
(SLAPP PREVENTION ELECTRONIC WHITENOISE SYSTEM)
Captain Flack
2004-04-26 12:49:43 UTC
Permalink
On Sun, 25 Apr 2004 15:37:09 -0600, Socks the white house cat
Post by Socks the white house cat
On second thought, rather than rely on the amateur legal counsel on nanae,
buy an hour of a real lawyer's time. Take everything with you. Get a real
opinion. See what s/he'd charge to write an objection to the appeal, and
what the chances were of winning on the objection and/or winning the whole
thing if the right to an untimely appeal gets upheld.
I can only speak for the UK small claims court, but I imagine the US
is similar. I would write the letter myself. The whole point of the
small claims is that smaller entities can take on larger ones and that
legal fees consequently aren't recoverable. If any entity could simply
appeal and bounce it to a higher court, it kind of defeats the whole
object of that situation. I would therefore guess that appeals are
unlikely to be granted unless they have clear grounds for showing that
the original case was not dealt with appropriately.

I would state

1) the reasons why their appeal is groundless (because the erroneous
info was supplied by THEM)

2) point out that you as an AMATEUR have followed the required
procedure to the letter and do not feel that you should have to spend
more time (and hence money) because PROFESSIONAL practitioners for the
other side were incompetent.

If Discover wishes to recover its losses, it should address those to
its law firm whose mishandling of the case resulted in not lodging an
appeal in time. They should be liable, not you.








--

Popular uprising?
http://www.blairfacedlies.org/statue.htm

captain(underscore)flack(squirlything)hotmail(you know what)com
McWebber
2004-04-26 12:57:08 UTC
Permalink
Post by Captain Flack
If Discover wishes to recover its losses, it should address those to
its law firm whose mishandling of the case resulted in not lodging an
appeal in time. They should be liable, not you.
Especially since small claims judgments do not set precedent, they have very
little to lose compared to what their lawyers are charging them.
--
McWebber
"Richter points to the lack of legal action against his company as proof
that he's operating appropriately."
Information Week, November 10, 2003
Laurence F. Sheldon, Jr.
2004-04-26 13:03:20 UTC
Permalink
Post by Captain Flack
On Sun, 25 Apr 2004 15:37:09 -0600, Socks the white house cat
Post by Socks the white house cat
On second thought, rather than rely on the amateur legal counsel on nanae,
buy an hour of a real lawyer's time. Take everything with you. Get a real
opinion. See what s/he'd charge to write an objection to the appeal, and
what the chances were of winning on the objection and/or winning the whole
thing if the right to an untimely appeal gets upheld.
I can only speak for the UK small claims court, but I imagine the US
is similar. I would write the letter myself. The whole point of the
small claims is that smaller entities can take on larger ones and that
legal fees consequently aren't recoverable. If any entity could simply
appeal and bounce it to a higher court, it kind of defeats the whole
object of that situation. I would therefore guess that appeals are
unlikely to be granted unless they have clear grounds for showing that
the original case was not dealt with appropriately.
I still am not a lawyer, but I believe the issue has been taken from
the small claims division to the applelate court where the small-claims
protections do not exist.
--
Requiescas in pace o email

http://members.cox.net/larrysheldon/
Captain Flack
2004-04-26 13:30:42 UTC
Permalink
On Mon, 26 Apr 2004 08:03:20 -0500, "Laurence F. Sheldon, Jr."
Post by Laurence F. Sheldon, Jr.
Post by Captain Flack
On Sun, 25 Apr 2004 15:37:09 -0600, Socks the white house cat
Post by Socks the white house cat
On second thought, rather than rely on the amateur legal counsel on nanae,
buy an hour of a real lawyer's time. Take everything with you. Get a real
opinion. See what s/he'd charge to write an objection to the appeal, and
what the chances were of winning on the objection and/or winning the whole
thing if the right to an untimely appeal gets upheld.
I can only speak for the UK small claims court, but I imagine the US
is similar. I would write the letter myself. The whole point of the
small claims is that smaller entities can take on larger ones and that
legal fees consequently aren't recoverable. If any entity could simply
appeal and bounce it to a higher court, it kind of defeats the whole
object of that situation. I would therefore guess that appeals are
unlikely to be granted unless they have clear grounds for showing that
the original case was not dealt with appropriately.
I still am not a lawyer, but I believe the issue has been taken from
the small claims division to the applelate court where the small-claims
protections do not exist.
But will the right to grant/deny the appeal be considered by them or
the lower court?

IANAL either BTW. I just feel that it would be better not to get a
lawyer involved at that stage and point out that if an amateur can
follow the rules, professionals should too.




--

Popular uprising?
http://www.blairfacedlies.org/statue.htm

captain(underscore)flack(squirlything)hotmail(you know what)com
Laurence F. Sheldon, Jr.
2004-04-26 13:38:01 UTC
Permalink
Post by Captain Flack
Post by Laurence F. Sheldon, Jr.
I still am not a lawyer, but I believe the issue has been taken from
the small claims division to the applelate court where the small-claims
protections do not exist.
But will the right to grant/deny the appeal be considered by them or
the lower court?
I am not sure--but I think it depends on exactly which small-claims
court you are in--I think in some states a small-claims action
can not be appealed.

But it seems like in any court where appeal is a possibility,
it is the higher court at each stage that decides whether or not
it will hear the appeal

I am not sure if it is relevant here, but is important in some
cases that you can't appeal the finding of fact--you can appeal
the finding (and application) of law.
Post by Captain Flack
IANAL either BTW. I just feel that it would be better not to get a
lawyer involved at that stage and point out that if an amateur can
follow the rules, professionals should too.
If all in the world was "right" I would agree with you. But it
isn't and you can get hurt by people who know the law better
than you do, and who are actually interested in winning, not in
beingt right.
--
Requiescas in pace o email

http://members.cox.net/larrysheldon/
McWebber
2004-04-26 16:03:47 UTC
Permalink
Post by Laurence F. Sheldon, Jr.
Post by Captain Flack
Post by Laurence F. Sheldon, Jr.
I still am not a lawyer, but I believe the issue has been taken from
the small claims division to the applelate court where the small-claims
protections do not exist.
But will the right to grant/deny the appeal be considered by them or
the lower court?
I am not sure--but I think it depends on exactly which small-claims
court you are in--I think in some states a small-claims action
can not be appealed.
I don't think that's possible under the constitution. You don't give up your
rights just because it's small claims court.
--
McWebber
"Richter points to the lack of legal action against his company as proof
that he's operating appropriately."
Information Week, November 10, 2003
stinky
2004-04-26 17:15:27 UTC
Permalink
Post by McWebber
Post by Laurence F. Sheldon, Jr.
Post by Captain Flack
Post by Laurence F. Sheldon, Jr.
I still am not a lawyer, but I believe the issue has been taken from
the small claims division to the applelate court where the small-claims
protections do not exist.
But will the right to grant/deny the appeal be considered by them or
the lower court?
I am not sure--but I think it depends on exactly which small-claims
court you are in--I think in some states a small-claims action
can not be appealed.
I don't think that's possible under the constitution. You don't give up your
rights just because it's small claims court.
It has happened several times in CA small claims court. You can file some
other motion (I don't remember the name) to find that the ruling by the
judge was incorrect but as for a direct appeal, only the defendant can do
that in CA. (IIRC).

FYI, this has played out several times on the junkfax list with CA
plaintiffs. That is why some of the plaintiffs file their cases in CA
superior court instead of small claims.
Caveat Emptor Nostradamus
2004-04-26 18:27:03 UTC
Permalink
Post by McWebber
Post by Laurence F. Sheldon, Jr.
Post by Captain Flack
Post by Laurence F. Sheldon, Jr.
I still am not a lawyer, but I believe the issue has been taken from
the small claims division to the applelate court where the small-claims
protections do not exist.
But will the right to grant/deny the appeal be considered by them or
the lower court?
I am not sure--but I think it depends on exactly which small-claims
court you are in--I think in some states a small-claims action
can not be appealed.
I don't think that's possible under the constitution. You don't give up your
rights just because it's small claims court.
I'm no lawyer, but I know how to use Google:
http://www.google.com/search?hl=en&ie=UTF-8&oe=UTF-8&q=small-claims+%22no+right+of+appeal%22
Chris U
2004-04-26 18:54:45 UTC
Permalink
On 26 Apr 2004 14:27:03 EDT, Caveat Emptor Nostradamus
Post by Caveat Emptor Nostradamus
Post by McWebber
I don't think that's possible under the constitution. You don't give up your
rights just because it's small claims court.
http://www.google.com/search?hl=en&ie=UTF-8&oe=UTF-8&q=small-claims+%22no+right+of+appeal%22
If State law(s) are similar across the board this might be the one you
need to understand more about your rights.
http://www.consumerlaw.com/claims.html
--
Animal
McWebber
2004-04-26 21:38:20 UTC
Permalink
Post by Chris U
On 26 Apr 2004 14:27:03 EDT, Caveat Emptor Nostradamus
Post by McWebber
I don't think that's possible under the constitution. You don't give up your
rights just because it's small claims court.
http://www.google.com/search?hl=en&ie=UTF-8&oe=UTF-8&q=small-claims+%22no+r
ight+of+appeal%22
Post by Chris U
If State law(s) are similar across the board this might be the one you
need to understand more about your rights.
http://www.consumerlaw.com/claims.html
That is for Hawaii.
--
McWebber
"Richter points to the lack of legal action against his company as proof
that he's operating appropriately."
Information Week, November 10, 2003
Laurence F. Sheldon, Jr.
2004-04-26 19:52:16 UTC
Permalink
Post by Caveat Emptor Nostradamus
Post by McWebber
Post by Laurence F. Sheldon, Jr.
Post by Captain Flack
Post by Laurence F. Sheldon, Jr.
I still am not a lawyer, but I believe the issue has been taken from
the small claims division to the applelate court where the small-claims
protections do not exist.
But will the right to grant/deny the appeal be considered by them or
the lower court?
I am not sure--but I think it depends on exactly which small-claims
court you are in--I think in some states a small-claims action
can not be appealed.
I don't think that's possible under the constitution. You don't give up your
rights just because it's small claims court.
http://www.google.com/search?hl=en&ie=UTF-8&oe=UTF-8&q=small-claims+%22no+right+of+appeal%22
The point being missed by some is that there are "artificial" (for want
of a better word) benefits to small people in the small claims division.

In return for thos benefits, there are are prices--typically restricted
or no right of appeal, no lawyers, and so on--varying by state.

If you don't want to pay the prices of a small-claims action, file
in a "regular" court ("Superior Court", "Municipal Court", the names
vary--in New York I am told it would be a "Supreme Court" which seems
odd to me).

But I am not a lawyere.
--
Requiescas in pace o email

http://members.cox.net/larrysheldon/
Sam
2004-04-26 22:38:53 UTC
Permalink
Post by Captain Flack
I would state
1) the reasons why their appeal is groundless (because the erroneous
info was supplied by THEM)
2) point out that you as an AMATEUR have followed the required
procedure to the letter and do not feel that you should have to spend
more time (and hence money) because PROFESSIONAL practitioners for the
other side were incompetent.
#2 is not a valid legal argument.

What needs to be done here is a bit of research. There should be plenty of
appellate-level precedents that read, basically "you don't appeal because
you fucked up". Cite that, and that's going to be the end of it.
Morely 'I drank what?' Dotes
2004-04-26 00:30:23 UTC
Permalink
Meanwhile, as our hero sinks slowly in the West, on 25 Apr 2004,
Post by Joe Wagner
In fact, the court mailed the judgment correctrly, using the address
the defendant gave in court in response to the Judge's question of to
what entity and to where the judgment should be mailed. Since the
defendant themselves gave the court that new address, one would
presume they shouldn't be very well able to turn around and call the
Notice "defective."
Was D under oath at the time?

If the answer is yes, then I suggest that either perjury charges, or a
deliberate misrepresentation by D's law firm in the appeal, is in effect.
IF you are represented by an attorney, it won't hurt to point that out.
--
Want a custom-built PC designed by gamers, for gamers?
Visit http://kryptonite.pc-gamereview.com
Tired of spam in your mailbox?
Come to http://www.spamblocked.com
Laurence F. Sheldon, Jr.
2004-04-26 00:56:00 UTC
Permalink
Post by Morely 'I drank what?' Dotes
IF you are represented by an attorney, it won't hurt to point that out.
and if you are not, this would be a really good time to fix that.
--
Requiescas in pace o email

http://members.cox.net/larrysheldon/
Werehatrack
2004-04-26 04:20:10 UTC
Permalink
On Sun, 25 Apr 2004 19:56:00 -0500, "Laurence F. Sheldon, Jr."
Post by Laurence F. Sheldon, Jr.
Post by Morely 'I drank what?' Dotes
IF you are represented by an attorney, it won't hurt to point that out.
and if you are not, this would be a really good time to fix that.
Seconded, heartily!

--
My email address is antispammed; pull WEEDS if replying via e-mail.
Typoes are not a bug, they're a feature.
Words processed in a facility that contains nuts.
(null)
2004-04-28 04:37:49 UTC
Permalink
Post by Werehatrack
On Sun, 25 Apr 2004 19:56:00 -0500, "Laurence F. Sheldon, Jr."
Post by Laurence F. Sheldon, Jr.
Post by Morely 'I drank what?' Dotes
IF you are represented by an attorney, it won't hurt to point that out.
and if you are not, this would be a really good time to fix that.
Seconded, heartily!
Most lawyers will talk with you for a bit before starting the meter.
FYI: David Kramer from Wilson Sonsini is a total Rottweiler on spam,
and a hell of a good guy besides. I know a couple of others if you're
interested, which IMHFO you should be because it looks as if Discover
is preparing to hose you, as witness the "accidental" misaddressing.
"Your Honor, we don't know why the plaintiff is absent. *Honest*."
Come on, they're a credit card company, they _thrive_ on screwing people.


Francois.
Seth Breidbart
2004-04-29 01:25:33 UTC
Permalink
Post by (null)
Post by Werehatrack
On Sun, 25 Apr 2004 19:56:00 -0500, "Laurence F. Sheldon, Jr."
Post by Laurence F. Sheldon, Jr.
Post by Morely 'I drank what?' Dotes
IF you are represented by an attorney, it won't hurt to point that out.
and if you are not, this would be a really good time to fix that.
Seconded, heartily!
Most lawyers will talk with you for a bit before starting the meter.
FYI: David Kramer from Wilson Sonsini is a total Rottweiler on spam,
and a hell of a good guy besides. I know a couple of others if you're
interested, which IMHFO you should be because it looks as if Discover
is preparing to hose you, as witness the "accidental" misaddressing.
It seems to me the appropriate thing to do, with a good lawyer, is to
let Discover move it to Superior Court, and in the new trial, demand
the _full_ ($250,000 was it?) damages.

Or, for much less fun (but it's your money), have the good lawyer
write a nice letter to Discover's lawyer that if they attempt to
remove the case, that's what will happen. See how Discover feels
about risking a couple of orders of magnitude more money.

Seth
Joe Wagner
2004-05-21 06:51:04 UTC
Permalink
Hi All,
Well, I have been given a court date for Discover's appeal of
their lost spam cases: 9:30 am, Friday, June 4, in Redwood City's 400
County Center (in Department 2H the clerk thought). If anyone is
having a slow Friday, feel free to come on down. The presiding judge
will apparently be the Honorable Mark Forcum, who is the Supervising
Superior Court Judge for all of San Mateo County and who has been the
driving point behind computerizing San Mateo County's courts. Just
last month he announce free Internet access to the public inside the
court house... So I'm hopeful he will be quite knowledgeable about
the issues and law with regards to spam.
Apparently once the appeal was granted, according to the clerk, I
can't get it revoked until I show up that day in court. So hopefully
it will be short and sweet and the big law firm in LA hired by DFS
will have flown up for nothing. It will mean I will have to prepare
for the trials again. Still what would be more satifying than having
already beaten DFS twice in court? To have beaten them a third and
forth time with the added bonus of three months interest and a few
members of the press watching...
I've included a copy of one of my letters to the judge below.
The other letter was similar to the first, modified to reflect that
DFS filed that appeal even later than the first, without even bother
to attach a dog-ate-my-homework excuse.
Finally, as a nice side note: tomorrow or sometime this weekend,
I'll be stopping at the S.F. Coalition on Homelessness to drop off
seven iMacs that I'm donating that were purchased using funds from
Financial LARTs -- a.k.a. settlements. I leave the adoption of the
implicit new four letter acronym as an exercise for the reader.
Using the punishment of people who are the most abusing actors in
the new economy to help those most left out has a satisfying and more
than very esthetic appeal.

Joe
--
The Judge of the Superior Court of California
County of San Mateo
Civil Department
400 County Center
Redwood City, CA 94063-1655


Your Honor,

I am writing to ask that the Court dismiss the appeal filed by
Discover Financial Services for Hypertouch, Inc. v. Discover Financial
Services, Inc. (Small Claims Case No.: SCC 101498). The appeal was
filed by the defendant after the 30 day deadline had passed and should
not have been granted under CA CCP section 116:

116.750(b) A notice of appeal shall be filed not later than 30
days after the clerk has delivered or mailed notice of entry of
the judgment to the parties. A notice of appeal filed after the
30-day period is ineffective for any purpose.

In their letter to the Court, the defendant erroneously claimed that
the "service of the Notice of Entry of Judgment was defective" because
it had been mailed to the defendant's service center in Phoenix,
Arizona rather than the defendant's agent for service of process in
Los Angeles. At the time of trial, though served to their Los Angeles
office, the defendant chose to represent themselves with someone flown
in from their Phoenix center.

Both the defendant and myself were sworn in as legal representatives
of the two parties for this action where the defendant was found
guilty of repeated violations of California's anti-spam laws despite
Hypertouch's numerous notices for them to cease. The presiding judge
specifically asked the defendant where notice of the judgment should
be mailed if not to the address listed on the complaint. The sworn
defendant gave the Phoenix address and reconfirmed that address to the
Court when the judge later read the new address back to him. Since
the defendant themselves gave this new address for notice in sworn
testimony to the Court, any claims of improper service should be
dismissed.

I believe the commissioner who granted the appeal would not have done
so had the defendant been fully forthcoming in their letter to the
Court. I would have also informed the Court of this before the appeal
had been granted, had I the opportunity. However, whether through
ironic accident or due to deliberate malfeasance, the defendant placed
the wrong address on the copy of their appeal that they mailed to
Hypertouch. This mis-addressing caused sufficient delay in the
delivery of the letter that Hypertouch was unable to submit a response
to the Court.

Furthermore, unlike the appeals process in many other states where a
full appeals motion with factual and legal research are required,
often accompanied by a monitory trial transcript, California's process
requirements are minimal – needing only the placement of a single "X"
in one box. It is not credible that the combined work forces of
defendant's Los Angeles and Phoenix offices, and/or the entire legal
department of their Illinois headquarters could not manage to place
such a mark and file the appeal within the legally required time
period.

One of the purposes of the Small Claims Court is to allow wronged
parties to seek legal redress without having to fear the crushing
costs and resources that large company can bring to bear. The
defendants should not be able to use their large size and their
presence in multiple states, with responding legal counsel from
multiple companies to evade the legal deadlines to which all others
are held.

I respectfully ask the Court to dismiss with prejudice Discover
Financial Service's appeal for this case, sparing the Court and
Hypertouch the time and expense of a trial for a matter already fully
heard and decided. I believe it would also serve well the interests
of justice for the Court to add what additional sanctions and
penalties it feels are appropriate for the defendant's attempted
misuse of the judicial appeals process.

Sincerely,



J. Joseph Wagner
President
Hypertouch, Inc.
Captain Flack
2004-05-21 10:28:42 UTC
Permalink
Post by Joe Wagner
Using the punishment of people who are the most abusing actors in
the new economy to help those most left out has a satisfying and more
than very esthetic appeal.
Joe
--
The Judge of the Superior Court of California
County of San Mateo
Civil Department
400 County Center
Redwood City, CA 94063-1655
I thought that was your sig for a minute there(!)

Nice work... IANAL but it doesn't look like they have a leg to stand on.
--
***@hotmail.com

(remove Tony Blair from office to contact me)
Laurence F. Sheldon, Jr.
2004-05-21 13:29:25 UTC
Permalink
Post by Joe Wagner
Using the punishment of people who are the most abusing actors in
the new economy to help those most left out has a satisfying and more
than very esthetic appeal.
Hang in there. You are doing good! One of my daughter's came in off
the road to find paper mail to the effect that Ameristar Casino had lost
their last appeal of an unemployment claim.

It can be did.
--
Requiescas in pace o email

Ex turpi causa non oritur actio

http://members.cox.net/larrysheldon/
glgxg
2004-05-21 16:15:42 UTC
Permalink
Post by Joe Wagner
Hi All,
Well, I have been given a court date for Discover's appeal of
their lost spam cases: 9:30 am, Friday, June 4, in Redwood City's 400
County Center (in Department 2H the clerk thought). If anyone is
having a slow Friday, feel free to come on down. The presiding judge
[snip]

This might interest you if you've not seen it already:

http://www.ftc.gov/os/comments/canspam/IndexD.htm
Check out 1326 (Discover Bank)
Andrew C. Green
2004-05-21 20:28:03 UTC
Permalink
Post by glgxg
http://www.ftc.gov/os/comments/canspam/IndexD.htm
Check out 1326 (Discover Bank)
If somebody can follow the logic of this paragraph, maybe they could clarify
Post by glgxg
4. Subject Line Labels
The Commission is required to prepare a report that sets forth
a plan for requiring commercial e-mail messages to be identifiable
from the subject line or gives an explanation as to why such a
requirement should not be adopted. We urge the Commission not
to impose a labeling requirement for commercial e-mail messages.
The CAN-SPAM Act already prohibits deceptive subject lines, and
requires that all commercial e-mails be clearly identified as advertising.
§§ 5(a)(2), 5(a)(4). Labels are therefore not necessary for recipients to
be able to assess the content of an e-mail.
This seems to say that CAN-SPAM already requires labels, so labels are not
necessary...? How do they assume that "commercial e-mails be clearly
identified as advertising" if not by a label in the Subject? Oh, they want
that we should open every single one to see what it is? Oops, of course,
that must be the idea...

-- Andy
glgxg
2004-05-21 21:19:03 UTC
Permalink
Post by Andrew C. Green
If somebody can follow the logic of this paragraph, maybe they could clarify
Post by glgxg
4. Subject Line Labels
The Commission is required to prepare a report that sets forth
a plan for requiring commercial e-mail messages to be identifiable
from the subject line or gives an explanation as to why such a
requirement should not be adopted. We urge the Commission not
to impose a labeling requirement for commercial e-mail messages.
The CAN-SPAM Act already prohibits deceptive subject lines, and
requires that all commercial e-mails be clearly identified as advertising.
§§ 5(a)(2), 5(a)(4). Labels are therefore not necessary for recipients to
be able to assess the content of an e-mail.
This seems to say that CAN-SPAM already requires labels, so labels are not
necessary...? How do they assume that "commercial e-mails be clearly
identified as advertising" if not by a label in the Subject? Oh, they want
that we should open every single one to see what it is? Oops, of course,
that must be the idea...
Mute point and the FTC disagrees... the FTC have already set a
precedence with the sexually explicit label requirement:

http://www.ftc.gov/opa/2004/05/sexexplicit.htm

16 C.F.R. Part 316: Rules Implementing The Controlling the Assault of
Non-Solicited Pornography and Marketing Act of 2003 (The CAN-SPAM Act):
Label for Email Messages Containing Sexually Oriented Material: Final Rule

"For Release: May 19, 2004

FTC Rule Requires Warning on Sexually Explicit Spam

Effective today, spam that contains sexually-oriented material must
include the warning “SEXUALLY-EXPLICIT: ” in the subject line or face
fines for violations of federal law."
Safari
2004-05-21 21:44:40 UTC
Permalink
On Fri, 21 May 2004 14:19:03 -0700, glgxg <***@mfire.com.invalid> wrote:
...
Post by glgxg
"For Release: May 19, 2004
FTC Rule Requires Warning on Sexually Explicit Spam
Effective today, spam that contains sexually-oriented material must
include the warning 'SEXUALLY-EXPLICIT: ' in the subject line or face
^
Post by glgxg
fines for violations of federal law."
and of course, they're too stupid to do that correctly. many have this:
Subject: Sexually Explicit:
^

BTW... is this compliant?

Subject: free porn pix SEXUALLY-EXPLICIT:
--
Safari - ***@sneakemail.com.gov.invalid - Reply-To to reply (remove 'ies')
glgxg
2004-05-21 22:43:59 UTC
Permalink
Post by Safari
...
Post by glgxg
"For Release: May 19, 2004
FTC Rule Requires Warning on Sexually Explicit Spam
Effective today, spam that contains sexually-oriented material must
include the warning 'SEXUALLY-EXPLICIT: ' in the subject line or face
^
Post by glgxg
fines for violations of federal law."
^
BTW... is this compliant?
Put your reading spec's on and report back when done :-)

http://www.ftc.gov/os/2004/04/040413adultemailfinalrule.pdf
Simon Farnsworth
2004-05-21 23:00:13 UTC
Permalink
Post by glgxg
Post by Safari
BTW... is this compliant?
Put your reading spec's on and report back when done :-)
http://www.ftc.gov/os/2004/04/040413adultemailfinalrule.pdf
To save other people the bother of trawling through, page 11 of the PDF,
under PART 316 adds the following to the rules:

316.1.(a).(1) Exclude sexually oriented materials from the subject heading
for the electronic mail message and include in the subject heading the
phrase "SEXUALLY-EXPLICIT:" in capital letters as the first nineteen (19)
characters at the beginning of the subject line;

Hence your example is not compliant, since the notice is at the end.
--
Farnz
Safari
2004-05-21 23:20:19 UTC
Permalink
On Sat, 22 May 2004 00:00:13 +0100, Simon Farnsworth
Post by Simon Farnsworth
Post by glgxg
Post by Safari
BTW... is this compliant?
Put your reading spec's on and report back when done :-)
http://www.ftc.gov/os/2004/04/040413adultemailfinalrule.pdf
To save other people the bother of trawling through, page 11 of the PDF,
aha, page 11.
Post by Simon Farnsworth
316.1.(a).(1) Exclude sexually oriented materials from the subject heading
for the electronic mail message and include in the subject heading the
phrase "SEXUALLY-EXPLICIT:" in capital letters as the first nineteen (19)
characters at the beginning of the subject line;
Hence your example is not compliant, since the notice is at the end.
ok. I didn't read that Final Rule, and it was said in this thread that

"Effective today, spam that contains sexually-oriented material must
include the warning 'SEXUALLY-EXPLICIT: ' in the subject line or face
fines for violations of federal law."

so it was not clear is it okay to add "a couple" of extra whitespace
chars and then the "warning".

spammers have found also other ways to be non-compliant:
they include the quote chars (")...
--
Safari - ***@sneakemail.com.gov.invalid - Reply-To to reply (remove 'ies')
glgxg
2004-05-21 23:31:02 UTC
Permalink
Post by Simon Farnsworth
Post by glgxg
Post by Safari
BTW... is this compliant?
Put your reading spec's on and report back when done :-)
http://www.ftc.gov/os/2004/04/040413adultemailfinalrule.pdf
To save other people the bother of trawling through, page 11 of the PDF,
316.1.(a).(1) Exclude sexually oriented materials from the subject heading
for the electronic mail message and include in the subject heading the
phrase "SEXUALLY-EXPLICIT:" in capital letters as the first nineteen (19)
characters at the beginning of the subject line;
Hence your example is not compliant, since the notice is at the end.
And before anyone uses both hands and a friend to figure out that
SEXUALLY-EXPLICIT is only seventeen (17) characters, there is a footnote
on page 11:

"1 The phrase ‘‘SEXUALLY–EXPLICIT’’ comprises
17 characters, including the dash between the two
words. The colon (:) and the space following the
phrase are the 18th and 19th characters."

I reckon that eliminates double-bit, double-byte character substitutes...
Seth Breidbart
2004-05-25 02:04:03 UTC
Permalink
Post by Andrew C. Green
If somebody can follow the logic of this paragraph, maybe they could clarify
Post by glgxg
4. Subject Line Labels
The Commission is required to prepare a report that sets forth
a plan for requiring commercial e-mail messages to be identifiable
from the subject line or gives an explanation as to why such a
requirement should not be adopted. We urge the Commission not
to impose a labeling requirement for commercial e-mail messages.
The CAN-SPAM Act already prohibits deceptive subject lines, and
requires that all commercial e-mails be clearly identified as advertising.
§§ 5(a)(2), 5(a)(4). Labels are therefore not necessary for recipients to
be able to assess the content of an e-mail.
This seems to say that CAN-SPAM already requires labels, so labels are not
necessary...? How do they assume that "commercial e-mails be clearly
identified as advertising" if not by a label in the Subject?
They want there not to be a simple mechanical filter to block their
garbage, but rather that people have to at least look at the Subject
header to see that it's spam.

Seth
Joe Wagner
2004-05-21 22:15:53 UTC
Permalink
Post by glgxg
http://www.ftc.gov/os/comments/canspam/IndexD.htm
Check out 1326 (Discover Bank)
In the context of an e-mail that is being initiated by one company
but which is for the sole purpose of advertising for another company,
the process of transmitting lists of opted-in and opted-out
recipients can be time consuming and is fraught with risks of
processing errors and delays.
In addition to the risk of errors and delays, they forgot to add that
"the process is also fraught with risk of we at Discover simply
ignoring all requests."

I note that they also oppose any mandatory labeling of spam -- makes
sense I suppose. Ignoring required labeling did just contribute them
being liable for $10,000 in California and with luck it might even cost
them a bit more...

Thanks again,

Joe
glgxg
2004-05-22 03:10:47 UTC
Permalink
Post by Joe Wagner
In addition to the risk of errors and delays, they forgot to add that
"the process is also fraught with risk of we at Discover simply
ignoring all requests."
I note that they also oppose any mandatory labeling of spam -- makes
sense I suppose. Ignoring required labeling did just contribute them
being liable for $10,000 in California and with luck it might even cost
them a bit more...
Thanks again,
Joe
You are very welcome & I wish you the very best in nailing Discover to
the wall.

As an added note:

I like the homeless effort/thought. If you need help in future FLART
equipment distribution/setup let me know - I'm on the other side of the
bay about 30 minutes away from RWC & drop by 101/Woodside nearly every
weekday morning during the summer. I don't know squat about iMac's, but
hey, they're supposed to be P-N-P anyway right?

Email is valid, just drop the .invalid tld.
Joe Wagner
2004-06-02 05:17:42 UTC
Permalink
Post by glgxg
I like the homeless effort/thought. If you need help in future FLART
equipment distribution/setup let me know - I'm on the other side of the
bay about 30 minutes away from RWC & drop by 101/Woodside nearly every
weekday morning during the summer. I don't know squat about iMac's, but
hey, they're supposed to be P-N-P anyway right?
Thanks for the offer,
I dropped off the iMacs on Saturday, plus a used laser printer.
Now that they are getting some machines with 100bt ethernet, I
understand they could use some network switches, rather than the nest
of 10bt hubs they have right now, if anyone has some old/surplus
equipment gathering dust.

Hmmm, FLART is a classier abbreviation than the four letter
alternative. I guess now that I see it in print, doesn't look so
bad...

Please keep up the "Mainsleaze" posts on NANAE. I fear the peril
25 million existing businesses in the US starting to spam even more
than the damage done by the current crop of V*1-a*g.r*a, MMF, and porn
spammers. We're archiving over 60,000 spam a day; it's helpful to know
for whom new to watch. FLARTs just might help keep that in check.

It would be interesting to see if anyone from the huge flock of
press that will be in the building on Friday for the Peterson trial
wander down the hall to our courtroom to watch Discover get called,
once again, to the carpet for using spammers to advertise. Seems
kinda vain to wander about before hand trying to give reporters a
heads up for what might be a very brief appearance -- and I suspect
I'll be too busy finding parking and preparing for court to do it
myself. Still, with viewing space in the Peterson case at a premium
and with the many breaks for private bench conversations, who knows,
maybe some of them will look about for other interesting cases that
morning. Of course if anyone decides to show up to watch on Friday
and they decide to give a reporter or cameraman or two a nudge, I'll
not complain.

Joe
McWebber
2004-06-02 12:31:29 UTC
Permalink
Post by Joe Wagner
Of course if anyone decides to show up to watch on Friday
and they decide to give a reporter or cameraman or two a nudge, I'll
not complain.
Considering that your case has implications for millions of people while the
Peterson case really only affects a few people you have to wonder about
priorities.
--
McWebber
"Richter points to the lack of legal action against his company as proof
that he's operating appropriately."
Information Week, November 10, 2003
Andrew C. Green
2004-06-02 17:58:24 UTC
Permalink
Post by McWebber
Considering that your case has implications for millions of people while the
Peterson case really only affects a few people you have to wonder about
priorities.
<AOL>!

Given the potential future significance of the ruling in your case vs. the
ruling in the Peterson case, it will be interesting to see which reporters
can figure that out, and bother to cover the right trial. (Unless, of
course, it turns out that a guilty verdict in the Peterson case proves to
discourage future murders...)

-- Andy
McWebber
2004-06-02 18:36:24 UTC
Permalink
Post by Andrew C. Green
(Unless, of
course, it turns out that a guilty verdict in the Peterson case proves to
discourage future murders...)
Yeah, we've seen how well that has worked in the past.
--
McWebber
"Richter points to the lack of legal action against his company as proof
that he's operating appropriately."
Information Week, November 10, 2003
Joe Wagner
2004-06-02 21:56:35 UTC
Permalink
Post by McWebber
Considering that your case has implications for millions of people while the
Peterson case really only affects a few people you have to wonder about
priorities.
Sadly they are still only Appeals of small claims cases so no case law
will come out of it -- though if it encourages others to sue DFS for
their spam that will broaden the impact considerably. Now if things
get really weird and I have to file an Appeal then that would become
case law, though I don't expect the judge to make such errors, to say
nothing of how very rare it is that such appeals of appeals are ever
granted.

IANAL, (though DFS sure seems to be using a lot them to oppose my
work...)

Joe

Joe Wagner
2004-04-26 06:27:33 UTC
Permalink
Post by Morely 'I drank what?' Dotes
Was D under oath at the time?
Yes, it was during the trial.
Post by Morely 'I drank what?' Dotes
If the answer is yes, then I suggest that either perjury charges, or a
deliberate misrepresentation by D's law firm in the appeal, is in effect.
IF you are represented by an attorney, it won't hurt to point that out.
Were I a betting man, I'd wager that either by accident or through
deliberate but untraceable withholding of information, the particular
attorney who signed the cover letter to the Judge would claim she was
unaware of that particular fact. Likewise the twice accidental
mis-addressing of their service to Hypertouch of the copies of the
appeals.
Post by Morely 'I drank what?' Dotes
and if you are not, this would be a really good time to fix that.
Maybe, but we are still in the small claims realm. I also think now
they'd be hard pressed San Mateo County to find a Judge who isn't
getting slammed with spam and would be the sympathetic to their case.
Besides, I'd rather have John spend his time on BlueStream
Media/BobVila.com and dealing with the never ending unethical antics
of Perry Johnson's lawyers. (I see in NANAS that Perry Johnson has
started spamming again. Though our class action is about Perry
Johnson's incredibly prolific junk faxing, we're keeping an eye on
their spamming as well -- especially after they had attempted to use
our mail servers as a relay.)
JerryMouse
2004-04-26 12:39:05 UTC
Permalink
Joe Wagner wrote:

[...]
Post by Joe Wagner
Besides, I'd rather have John spend his time on BlueStream
Media/BobVila.com and dealing with the never ending unethical antics
of Perry Johnson's lawyers.
Sure. But with very little effort, this case can FUND the BlueStream
business.
Laurence F. Sheldon, Jr.
2004-04-26 12:42:55 UTC
Permalink
Post by Joe Wagner
Post by Laurence F. Sheldon, Jr.
and if you are not, this would be a really good time to fix that.
Maybe, but we are still in the small claims realm. I also think now
I am not a lawyer, but I think you have gone (or been taken if you
prefer) out of the "small claims realm" to a place where they can hurt
you. I would at least talk to a lawyer about reviewing your
proposed responses.
--
Requiescas in pace o email

http://members.cox.net/larrysheldon/
Caveat Emptor Nostradamus
2004-04-26 14:40:35 UTC
Permalink
On Mon, 26 Apr 2004 07:42:55 -0500, "Laurence F. Sheldon, Jr."
Post by Laurence F. Sheldon, Jr.
Post by Joe Wagner
Post by Laurence F. Sheldon, Jr.
and if you are not, this would be a really good time to fix that.
Maybe, but we are still in the small claims realm. I also think now
I am not a lawyer, but I think you have gone (or been taken if you
prefer) out of the "small claims realm" to a place where they can hurt
you. I would at least talk to a lawyer about reviewing your
proposed responses.
The usual NANAE legal advice is worth its price. Interestingly, I
thougtht the advice in this thread was pretty good.

IANALeither
Werehatrack
2004-04-26 16:31:44 UTC
Permalink
... I also think now
they'd be hard pressed San Mateo County to find a Judge who isn't
getting slammed with spam and would be the sympathetic to their case.
If they think so as well, they might request a change of venue if the
appeal petition is granted. The time to nip this in the bud is
*before* they get that petition granted. Right now, my understanding
is that it's primarily a matter of "Were all procedures followed, or
was there a breach of procedure that merits a re-examination of the
facts?" As long as there is no voice officially stepping up to state
that all procedures were followed except for their failure to file
their appeal in the period permitted by the local rules, I fear that
their petition may very well be accepted. You do *not* want that to
happen. Nail the lid on this can of worms *now*.
Besides, I'd rather have John spend his time on BlueStream
Media/BobVila.com and dealing with the never ending unethical antics
of Perry Johnson's lawyers.
The kind of response that might get their current petition thrown out
definitively would probably not take a lot of time; it should be
simply a matter of presenting the salient facts to the judge in the
required form. You have thousands of dollars directly at stake, and
thousands *more* if they drag this out of the small claims arena into
an appellate court, since they would then have the ability to force
you to spend your money hiring an attorney to represent you in court.
Remember, he who is not heard in court, loses by default...and he who
has no attorney present (outside of small claims, where the judge will
often facilitate self-representation to a degree that never occurs in
higher courts) is essentially not going to be heard.

If your current attorney is tied up, get another one. Believe me,
you're likely to regret it if you fail to do so.

--
My email address is antispammed; pull WEEDS if replying via e-mail.
Typoes are not a bug, they're a feature.
Words processed in a facility that contains nuts.
Norman Miller
2004-04-26 19:18:45 UTC
Permalink
In article <***@4ax.com>, rault00
@earthWEEDSlink.net says...
Post by Werehatrack
Nail the lid on this can of worms *now*.
Interesting mixed metaphor.
--
Norman
~Win dain a lotica, En vai tu ri, Si lo ta
~Fin dein a loluca, En dragu a sei lain
~Vi fa-ru les shutai am, En riga-lint
Jim Higgins
2004-04-28 00:10:47 UTC
Permalink
On 25 Apr 2004 13:47:25 -0700, in
Post by Joe Wagner
Hi all,
On April 9, the 30 day deadline passed for Discover Financial
Services to appeal two $5k victories I won in small claims court for
Discover Credit Card spam. Today I received in the mail notices from
the small claims clerk that DFS has filed two appeals of the verdicts,
filed April 22. I figured a number of people here may have had
experience with defendants filing late appeals of verdicts in CA so
duggestions are always welcomed. Hopefully I will be able to get the
court to enforce the deadline's date and turn down the appeal, but
we'll see. If not, then perhaps down the road I'll have the
opportunity to get full copies of the contracts of every spammer that
made money sending DFS spam to add to what we already have (see
http://legal.hypertouch.com/discover/).
Here's the text of the cover letter the DFS's local law firm,
--begin letter--
File Number: D5854-0007
Direct Dial Number: (213) 891-5265
April 12, 2004
Re: Hypertouch Inc. v. Discover Financial Services, Inc. Small Claims
Case No. SCC 101498 Notice of Appeal
On March 11, 2004, judgment was entered in the above matter in favor
of Plaintiff, Hypertouch Inc., and against Defendant Discover
Financial Services, Inc. Notice of Entry of Judgment was mailed to one
of Defendant's customer service centers in Phoenix, AZ that same date.
However, Defendant's agent for service of process, as indicated on
Plaintiff's claim (also enclosed), is located in Los Angeles.
Consequently, Defendant (specifically, Defendant's legal department in
Illinois) did not actually receive the Notice until March 16, 2004, as
indicated by the date stamp in the upper right hand corner on the
enclosed Notice.
Our office represents Defendant, and desires to file the enclosed
Notice of Appeal with the Superior Court. However, we realize that the
30 day time limit to file the Notice of Appeal expired on April 10,
2004, which was this past Saturday. We respectfully request that since
service of the Notice of Entry of Judgment was defective, and
Defendant did not receive the Notice until March 16th, and because the
30'h day fell on a Saturday, the Court accept the enclosed Notice of
Appeal.
Thank you.
Respectfully,
BUCHALTER, NEMER, FIELDS & YOUNGER A Professional Corporation
By
[signature]
Jennifer A. Smith
--end letter--
In fact, the court mailed the judgment correctrly, using the address
the defendant gave in court in response to the Judge's question of to
what entity and to where the judgment should be mailed. Since the
defendant themselves gave the court that new address, one would
presume they shouldn't be very well able to turn around and call the
Notice "defective." There was no cover letter at all included in
DFS's curtesy copy to me of the second appeal (case #101499) and to
top it off, DFS uses the wrong street address in their mailings to us
but luckily the local postman caught it and redirected it.
Joe
Re: Hypertouch Inc. v. Discover Financial Services, Inc. Small
Claims Case No. SCC 101498, Plaintiff's Objection to Notice of
Appeal by Defendant

Dear Judge (last name here),

On March 11, 2004, judgment was entered in the above matter in
favor of Plaintiff, Hypertouch Inc., and against Defendant
Discover Financial Services, Inc. Notice of Entry of Judgment was
mailed to the address provided at the time by Defendant's legal
representative present at the proceeding in direct response to
Your Honor's query to Defendant's representative regarding what
address to send Notice of Judgment. The Plaintiff asserts that
the court provided legal service of the judgment as directed by
Defendant's representative, and since Defendant depended on his
representative in the matter at hand at the original proceedings,
he is "in for a penny, in for a pound" regarding all actions by
his representative on his behalf. In no case should Plaintiff be
penalized for actions taken in good faith by all concerned at the
time. The Defendant's cause of any future action is with his
representative, not with Plaintiff or with this court.

Defendant in his appeal pleading goes on to explain in a bit of
detail a somewhat confusing network of preferred office locations
for legal service or legal notice to the Defendant. Plaintiff
asserts, after reading Defendant's somewhat confusing pleading in
this area, that Defendant does not present facts constituting
grounds for an appeal.

[At this point, if the judgment was announced in open court in
the presence of the Defendant's representative, I would assert
that the Defendant, thru his legal representative, was given
constructive knowledge of the judgment at that time and that
failure on the part of his legal representative to notify him was
a breach on the part of his legal representative for which his
recourse is with his legal representative and the State Bar
Association, assuming the representative was a lawyer, not with
the Small Claims Court or with the Plaintiff.]

The Plaintiff asserts that it is not reasonable for the Defendant
to expect that had the Court even known that the Defendant had
an office in Los Angeles, that the Court would have known that
the true desired location of service was not in Phoenix, but
rather in Illinois. Plaintiff suggests that Defendant is only
muddying the water here and that the true error was on the part
of the Defendant and his legal representative not settling these
basic matters among themselves before the proceedings on March
11.

Now comes the Plaintiff to beg that the Defendant's appeal be
denied on the grounds that the Defendant's representative was
given notice of judgment at the original proceeding on March
11and by so doing the Defendant himself was constructively
informed of the judgment [assuming this is truly the case], and
that Defendant was legally served a written copy of the judgment
at the place of his choosing as communicated to the Court by his
legal representative present at the original proceeding, that the
Defendant by his own admission had from March 16th when judgment
was received by Defendant and the deadline of April [9 or 10 -
check because 9 is a legal working day and 10 being a Saturday
may permit a filing as late as the following Monday, but may
require delivery on Monday, not just postmarking on Monday] to
file an appeal in a timely manner - certainly time enough to
appeal a matter as simple as this one - and that Defendant has
not provided a reason for appeal based on error by the Court in
interpretation of fact or law as a basis for granting an appeal,
however timely filed [assuming this is truly the case].

Respectfully,

The Plaintiff


[ I'm not a lawyer, but I've been in this situation in a Florida
small claims case and I'd approach the judge in a manner
*similar* to the above (after verifying that the points made
above apply in California small clams courts) and that the
assumptions I've noted are true. I would also look up whether or
not small claims court in your state permits outside legal
representation in filings or in person. Some states do not
permit it and if yours is such a state then this filing by the
Defendant may be improper on its face. The Defendant may be able
to file based on legal council, but legal counsel itself may not
be able to file for them. Check it out. The court clerk could
be a big help and you might even find a nice big brochure with
this sort of information at the place of filing. It's basic
small claims stuff - not implying you should know it, but
certainly suggesting that the folks in the court building should
and should be willing to inform you. If you like the action I'd
take for myself, then by all means please check the above over
carefully for consistent use of the words Plaintiff and
Defendant. I found too many errors in successive readings to
assume I caught them all. Once again I am not a lawyer; but I'd
proceed as above, after doing my homework, if I found myself in
your position. Given the size of the judgment potentially at
risk, you may wish to draft a response and then have it reviewed
by a lawyer with notations for improvement made. The cost should
be minimal.

Please let us know the outcome. ]
Seth Breidbart
2004-04-28 23:10:58 UTC
Permalink
Post by Joe Wagner
Here's the text of the cover letter the DFS's local law firm,
--begin letter--
. . .
Post by Joe Wagner
On March 11, 2004, judgment was entered in the above matter in favor
. . .
Post by Joe Wagner
Consequently, Defendant (specifically, Defendant's legal department in
Illinois) did not actually receive the Notice until March 16, 2004, as
Mail took 5 days? BFD.
Post by Joe Wagner
Our office represents Defendant, and desires to file the enclosed
Notice of Appeal with the Superior Court. However, we realize that the
30 day time limit to file the Notice of Appeal expired on April 10,
2004, which was this past Saturday.
After the mail was received, they admit they still had 25 days before
the deadline.

Although if their appeal was received on Monday (with the deadline on
Saturday), I'd consider they had a reasonable case. (Other deadlines,
such as tax filings, are always pushed forward to "next business
day".)

Seth
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