"Small claims cases require that you ask the other side for payment before you go to court (unless there is a good reason why you cannot). You can ask in person, by phone, or in writing. You will have to tell the court you did this and how on your court form."
It does not specifically exclude TCPA statutory damage, so I think it does apply in this case.
And it does logically apply here too, small claims court is somewhere between an actual court and mediation and it is in place to save cost when possible. So it is reasonable to expect they want an attempt to resolve it before even before to file.
In California small claims court, they typically want you to try and make a demand. But you don’t have to make a demand in all instances to sue. OP made a blanket statement that you have to make a demand or you can’t sue. That’s not correct under CA law, and that’s generally not correct in other jurisdictions. And we will set aside a preemption analysis because the TCPA is a federal law for another day. (I don’t know if there is one. But could be.)
Ultimately, OP was recounting what he did, and, as I said, I think OP did great. But he shared it for a reason, and so I wanted to make clear that everyone’s circumstances and judicial systems may be different. This is why I said:
“Depending on your jurisdiction, the way you can pursue a case like this is going to vary, so I’m not going to give any hard and fast rules in this comment.”
A couple other potential, and admittedly minor, misstatements from OP
Trebling under the TCPA does not necessarily turn on whether you were on the DNC list (as OP states), it generally turns on a showing willfulness.
And winning a judgment does not mean that the Court just seizes the defendants property. I think that was addressed in another comment.
I wasn’t trying to crap on OP. I simply wanted to point out that OP‘s experience was specific, localized, and not universal. I thought this important because OP’s tweets read sort of like a how-to, and I want to educate others to the nuance that may be required in their specific jurisdictions.
OP here - really appreciate these bits of nuance and correction. That's how everyone learns!
Meta: I wish that Twitter had a better format for iterative discussion: "Hey, I just did X, I wonder how broadly it is applicable?" -> people join in with experience and data points offering nuance about the above -> output reference document with rough consensus and nuance. (This is kind of what happened with my Guide to Stock and Options like 10 years ago - I only got it materially right on the third draft after people constructively dogpiled in with the things I got wrong on the first two takes!)
Now back to the thread - is there case history showing whether presence on DNC constitutes (or doesn't) a wilful TCPA violation? My presumption was that an unsolicited text to a DNC number de facto constituted a wilful violation since best practice is to scrub DNC numbers from cold outreach.
Fair, I did not imply that you are, just being genuinely curious.
> In California small claims court, they typically want you to try and make a demand. But you don’t have to make a demand in all instances to sue. OP made a blanket statement that you have to make a demand or you can’t sue. That’s not correct under CA law.
I don't understand this part, the court page says that you "must" do it. Is there a CA law that prohibits CA court from requiring this? My vague understanding is that many things in judicial system are "customary" or administratively driven. Maybe this is the case, while not required by CA law, but required by courts as an optimization technique.
> And we will set aside a preemption analysis because the TCPA is a federal law for another day.
Ah, this is actually interesting. So the TCPA is a federal law and he used it as a basis for his lawsuit in the CA court. How does it work? Can you bring a lawsuit based on federal law in a state law? I just pulled TCPA [1] and in the PRIVATE RIGHT OF ACTION section it clearly mentions a state court:
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
If a federal law explicitly allows state courts, does a state court have to listen such cases unless there is a state law that prevents it?
"Small claims cases require that you ask the other side for payment before you go to court (unless there is a good reason why you cannot). You can ask in person, by phone, or in writing. You will have to tell the court you did this and how on your court form."
It does not specifically exclude TCPA statutory damage, so I think it does apply in this case.
And it does logically apply here too, small claims court is somewhere between an actual court and mediation and it is in place to save cost when possible. So it is reasonable to expect they want an attempt to resolve it before even before to file.
Anything else?