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View Full Version : Can you take the DOJ to small claims court?


TonyNorCal
03-01-2006, 7:57 PM
Question for you legal types...

Can you take the DOJ to small claims court? Why? Well, many of us have receivers still in custody and this seems a cost effective way to address the situation (small claims fees are quite small...$20-30 if I'm, not mistaken...and then paying someone to serve them...or driving over and doing it yourself:) ).

So...if it is possible please address the following...

1.) Where would you file? Contra Costa is where they were taken. Sac is where they are. And a number of us likely reside in other counties. So, what would the appropriate venue be?

2.) If I'm not mistaken one represents oneself in small claims court? Does the defendent need to show up...and if they fail to is it an automatic loss (assuming the case isn't ridiculous and has some merit).

So, assuming it's possible imagine many claims being filed. Hmmm, might get their attention. I'd basically ask for receivers released or compensatory damages.

Possible? Thoughts?

bobby7321
03-01-2006, 8:50 PM
i think by law your county has to provide you free legal advice on small claims cases. just advice, and answer questions, etc...

they've helped me out before, no charge.

x2delight
03-01-2006, 9:08 PM
if you have ever fileda smalls claims court filing.. you will notice it asks you if you are suing a United States Govt Department... Geee i wonder why they ask you that? so they can be ready before you can and hand you your ***..its like how the judge will always beleive a cops word agianst yours in a speeding ticket hearing or such.

JALLEN
03-01-2006, 9:11 PM
I don't think so. The jurisdiction of Small claims court is very limited, to money damages not more than $7,500 for an individual. I gave a quick perusal of the Code of Civil Procedure sections and didn't see anything to cause me to think that the state government itself can be a defendant, although there is provision for governmental units to be plaintiffs.

To regain possession of your lower, my guess is that you would need to be in Superior Court in Sacramento, probably, or in the county in which the lowers were seized. Just a guess at this point, though.

dbol
03-01-2006, 9:22 PM
Yes, you can take the DOJ to small claims court.

To do so, however, you'll need to first submit a claim directly to the DOJ asking for redress of your grievance. The claim form for state government entities is here: http://www.boc.ca.gov/PubsGC/Forms/GCClaimForm.pdf

After your claim is denied or 45 days have elapsed with no answer, you may file a claim in small claims court. As for where to file, since the DOJ is a state agency, venue is proper anywhere in the state - you should file at the most convenient small claims courthouse for you.

The claim you would most likely make in this instance is that the DOJ has committed the tort of "conversion" with respect to your lowers (i.e. they have deprived you of your lawful right to possession thereof).

If successful you would get back the value of the lowers in cash; this is the normal remedy for conversion claims and since lowers are basically a commodity, there is no reason to depart from the norm and order return of the specific property.

See this site for more general info on California small claims court:
http://www.courtinfo.ca.gov/selfhelp/smallclaims/

dbol
03-01-2006, 9:25 PM
if you have ever fileda smalls claims court filing.. you will notice it asks you if you are suing a United States Govt Department... Geee i wonder why they ask you that? so they can be ready before you can and hand you your ***..its like how the judge will always beleive a cops word agianst yours in a speeding ticket hearing or such.

They ask because claims against the federal government are not allowed to be brought in small claims court. The only thing they would hand you there would be directions to the nearest district courthouse.

ADDICTEDto.223LOWERS
03-01-2006, 10:58 PM
"If you are suing a government or public agency, you have 6 months to file a claim with that agency. They have 45 days in which to make a decision. If no decision is made with 45 days then it is deemed denied. If they reject your claim, you have 6 months to file a claim with a small claims court. Click here to learn more about suing a government agency"

x2delight
03-02-2006, 12:26 AM
i cant come to heart to sue a govt agency... unless it was in group form =)

glen avon
03-02-2006, 7:01 AM
Yes, you can take the DOJ to small claims court.

To do so, however, you'll need to first submit a claim directly to the DOJ asking for redress of your grievance. The claim form for state government entities is here: http://www.boc.ca.gov/PubsGC/Forms/GCClaimForm.pdf

After your claim is denied or 45 days have elapsed with no answer, you may file a claim in small claims court. As for where to file, since the DOJ is a state agency, venue is proper anywhere in the state - you should file at the most convenient small claims courthouse for you.

The claim you would most likely make in this instance is that the DOJ has committed the tort of "conversion" with respect to your lowers (i.e. they have deprived you of your lawful right to possession thereof).

If successful you would get back the value of the lowers in cash; this is the normal remedy for conversion claims and since lowers are basically a commodity, there is no reason to depart from the norm and order return of the specific property.

See this site for more general info on California small claims court:
http://www.courtinfo.ca.gov/selfhelp/smallclaims/

don't forget no injunctive relief in small claims. no specific performance either. just moola.

bwiese
03-02-2006, 7:19 AM
don't forget no injunctive relief in small claims. no specific performance either. just moola.

Very true!

However several hundred lowers X $175-$200 is an unbudgeted chunk of change for the DOJ to pay (200 @ $200 = $40K; I don't recall the price or quantity accurately now.) That's pay & partial benefits for a desk clerk or "AW data entry processor" :)

If found against DOJ, they might well release at that point - cheaper!

This is where a massed attack by Milpitas purchasers could be useful.

But for the time being, don't queer Ben/Rob's work with lawyers. There's some sharp guys on this, and this is a very very political thing.

filefish
03-02-2006, 7:28 AM
"If you are suing a government or public agency, you have 6 months to file a claim with that agency. They have 45 days in which to make a decision. If no decision is made with 45 days then it is deemed denied. If they reject your claim, you have 6 months to file a claim with a small claims court. Click here to learn more about suing a government agency"

I keep klicking and it just won't work :confused:

Wulf
03-02-2006, 11:26 AM
don't forget no injunctive relief in small claims. no specific performance either. just moola.

If the "window" closes before you got the judgement, it could be interesting setting value. "Scarcity" and "unavailability" are reasonable considerations in developing an opinion of value. If you include "never ever ever being able to replace the property" as an aspect of your damages a $200 dollar reciever could aquire a much higher worth.

TonyNorCal
03-02-2006, 12:46 PM
Fantastic.

Thank you gentlemen, ladies.

So what would you think of as many of the Milpitas 200, as can be properly motivated, filing a claim form? And then proceeding to multiple small claims actions if no response?

Is there any downside to such a mass endeavor?

6172crew
03-02-2006, 12:54 PM
I tought everyone was in agreement that the lowers werent yours until you signed the form after the 10 day wait?

Wouldnt the FFL have to file in your favor?:confused:

glen avon
03-02-2006, 1:33 PM
well remembert that you all can't bring a lawyer to court but they will....

TonyNorCal
03-03-2006, 1:25 PM
Iwas thinking of this as a way to get their attention...perhaps help facillitate the return of these items. Assuming 50 or so (you can never get everyone properly motivated sadly) filed claim forms and then lawsuits....well, does the DOJ really want to send their legal eagles out to 50 small claims court rooms up and down the length of our great state?

It seems to me that at least filing the claim for (free) is another salvo. And then if you have to follow it up with a small claims action you're not out much money.

If this is combined with the letter campaign at what point might the DOJ simply say...enough is enough and release these items?

If someone thinks filing the claim paper DBOL posted above would be counterproductive then please, do say.

Thanks

eje
03-03-2006, 1:49 PM
Even if no DoJ rep showed up at your small claims trial, you'd still need to persuade the judge that you've got an actual cause of action against the DoJ for damages. Unless you've got a really good theory supported by good facts, I think most small claims judges or judges pro tems would be more than a little skeptical, right or wrong, that the DoJ just took your firearm and is keeping it for no good reason. You would also need to comply with venue requirements, i.e., sue the DoJ in the proper court. Not sure exactly where that would be, but I'm guessing you could do it in the county where the FFL was located or any city or county where the DoJ had an office. If you filed it in some random county the DoJ could just send a letter to the small claims court before trial requesting a change of venue; most judges probably wouldn't let you get away with this strategy anyway.

Wulf
03-03-2006, 6:28 PM
If you filed it in some random county the DoJ could just send a letter to the small claims court before trial requesting a change of venue; most judges probably wouldn't let you get away with this strategy anyway.

I think most small claims court judges would look at this case as big, new, and interesting fun compared to the normal plumber vs homeowner and landlord vs tenant cases they usually see. This is a DOJ violating the constitutional rights of citizens.....or at least you could look at it that way if you were tired of arbritrating cases between neighbors over the cost of a fence.

jnojr
03-03-2006, 8:36 PM
I think most small claims court judges would look at this case as big, new, and interesting fun compared to the normal plumber vs homeowner and landlord vs tenant cases they usually see. This is a DOJ violating the constitutional rights of citizens.....or at least you could look at it that way if you were tired of arbritrating cases between neighbors over the cost of a fence.

Small claims court does not and cannot settle issues of Constitutional rights... only tort issues between two parties.

I think it would be great fun to see as many affected people as possible submit claims and then go to court. Keep in mind, though, that your best outcome would be the cost of the receiver (likely without DROS or any other fees, and no reimbursement for time or travel), as another poster pointed out. Further, they could just ignore judgements against them... there isn't much a small-claims court judge can do against a state agency. Or they could appeal such judgements... go to Superior court asking for all similar small-claims issues to be consolidated into one class-action suit in a venue where the money isn't the only issue... they can start to argue sovereign immunity, claim that they're acting within the scope of their charter, etc.

Like I said, it would be fun, but there's very little chance of a positive outcome.

TonyNorCal
03-03-2006, 9:02 PM
Thanks guys.

Let me make myself clear.

I see this option not necessarily as unfolding in such a way that a judge orders their return and you prevail in court. (Although that's possible.)

I see this more as a means by which to exert pressure on the DOJ. Pressure from multiple fronts may facillitate the return of the lowers. At least that's my take. Then again, it may not...but it's important to remain optimistic and be proactive.

So...as this approach goes it appears there is basically a two step process...

1.) File that claim form. I can't imagine why everyone wouldn't do this. It's free, takes very little time, and initiates an official bureaucratic action. Sometimes the best way to contend with a bureaocracy is to use their own rules/regulations against them. The claim form doesn't obligate you to go to small claims court and I can't see any downside. It creates work for the DOJ and is another means by which to apply pressure. 100+ forms submitted, all for the same batch of lowers...well, seems like it can't hurt and might do some good.

2.) Assuming step 1 gets denied (and if it does you've at least made them work) there appears to be the small claims option. Now, filing in small claims court is 20-30 dollars + paying to have someone served. It's hardly cost prohibitive. Now, is the DOJ going to represent themselves physically? I doubt it. Would they write the judge for a change of venue? Maybe. Does filing a in small claims court create additional pressure and work for the DOJ? Absolutely.

In my mind this approach is less about what a particular judge might do or how the DOJ reacts. It's more about the application of pressure by multiple individuals, all determined to have their lawful purchased property released.

Seems like it's an avenue of attack that involves little in the way of financial resources and time on your part. So, might as well hit them from this front in addition to the other underway. It's a way to let them know that you the citzenry is determined and unwilling to let this issue go.

glen avon
03-04-2006, 10:36 AM
Thanks guys.

I see this option not necessarily as unfolding in such a way that a judge orders their return and you prevail in court. (Although that's possible.)

no, small claims courts cannot order their return. only money damages. you have to go through superior court for injunctive relief. there is an economic litigation provision, so it's supposed to faster and cheaper than a regular civil case, but it's still the big leagues.