Yesterday, Heather Peters proved one woman can strike a blow against a major automaker when she succeeded in a landmark California case against Honda for making false claims about fuel economy.The key? Take them to small claims court. With her help, we've created this definitive step-by-step guide to how she, like a modern-day David, took on Goliath — and how you can too.
As we told you yesterday, Heather Peters was successful in her small claims case against Honda, in which she alleged that the car wasn't getting anywhere near the 50 MPG she says the company advertised her car would get. Although Honda only has to pay her $9,687 for this particular ruling, Peters has essentially laid the groundwork for other owners to make similar claims that could ultimately cost the company an enormous amount of money.
Small claims is not full-bore court. Evidence standards are lower and expensive and consuming processes like depositions and interrogations are dispensed with. It's a dispute resolution process, stripped down to its bare frame and built for speed. Also, fairness. Unlike fancy court, lawyers are not allowed (except in just a few jurisdictions). If the company shows — they don't always, which often means you get a default judgment and get to move automatically to the fun money-collection part — they can only send a company representative, and they can't be a lawyer. With these rules of engagement, the playing field between consumer and corporation is leveled and it's much easier for the average citizen to have their voice heard without getting tripped up in the legal science. That said, you still need to study the guidelines for you area and know what you're doing. Even though Heather Peters is a lawyer by training, there's nothing she did that any Joe Sixpack with a bit of focus and discipline can't do.
"There's no secret," Heather Peters told Jalopnik. "You go online, make your claim, you follow the links. Just follow the instructions."
Let's walk through — with her help — how she did it, and how you can too.
Very Important: If you, like Heather Peters, are choosing to go to small claims court rather than participate in an on-going class action lawsuit, the first thing you need to do is officially opt out of that lawsuit. If you're a Civic Hybrid owner, you only have until Feb 11, 2012 to opt out of the Honda Civic Hybrid Settlement Class. Here is the form you can use to opt out.
Before you file your case in small claims court, you need to try to work it out with the business in advance. Correspond with them via email or certified letters stating your case and see if they'll try to work with you on a remedy, which could include a cash payment. If that's fruitless, you then should write a demand letter that asks them for a specific sum and gives them a deadline to send it. In the letter, notify them if the amount is not paid, you will be taking them to small claims court. Besides general formatting of the demand letter, an example of which is below, the key bit of side work you'll need to do here is to calculate the damages you've suffered. And for the case to qualify for small-claims, that number must be within your state's maximum dollar amount. Some states are as low as $2,500, others can be as high as $25,000. Go here to find your state's. So how do you go about figuring out the total damages?
For starters, your evidence must show that the damages you seek fall under the max dollar amount. If the evidence shows that the damages were $10,000, but the small claims limit in your jurisdiction is $5,000, you are not supposed to decrease the amount you're seeking to $4,900 just to make it "fit."
With that in mind, in the case of Heather Peters what she did was make a big spreadsheet showing her how many miles she drove and then used official government data, like the one here to show the gas price history in California over that time. She then compared the MPG she should have gotten based on her car's EPA sticker versus the actual MPG she achieved. The cost of the gas from the difference between the advertised and actual MPG became one of the principal sources of the damages she sought from Honda. She also included the reduced resale value and statutory damages for breaking one of California's consumer protection laws. Whether you're suing a car-maker over the same issue Peters did or another issue, the important thing is to hone in on how exactly the car company didn't uphold their end of the bargain and then demonstrate the "material" – dollar amount – damage you suffered as a result.
Once you have your number and the backup proof for it, you can include the number in your demand letter. The demand letter is your last request for payment from the car company, and if they don't pay and you go to small-claims, you will need the letter it in your evidence packet as proof that you attempted to resolve the matter informally before going to court.
Ever so consumer friendly, California even has an online Mad Libs style demand letter generator tool that you can use to draft yours. Here's an example created through that you can use as a template. You will want to look up the company's exact legal name and official address to send the notice to.
February 2, 2012
Via Priority Mail with Delivery Confirmation
123 Putt Putt Lane
Anytown CA, 90210
ATTN: Mr. Greg Vanderblink
Re: Demand for Payment
Dear Mr. Vanderblink:
Please be advised that Vroom Corp owes me the sum of $10,000.00 because of [serious material deficiencies between how your car was advertised and the product I experienced] (replace with your specific issue).
This will be Vroom Corp's only chance to settle this matter before I file suit against Vroom Corp in Small Claims Court. I am agreeable to a lump sum payment, or to a payment plan. Please contact me on or before February 12, 2012 for purposes of settling this matter. If I do not hear from Vroom Corp on or before February 12, 2012, I will file a lawsuit against Vroom Corp without further notice. It is in Vroom Corp's best interest to settle this matter before a lawsuit is filed. If a judgment is obtained against Vroom Corp, it will negatively affect Vroom Corp's ability to get credit, Vroom Corp will be ordered to pay court costs, and Vroom Corp will incur interest at a rate of 10% per annum.
Based on the foregoing, I expect payment in the amount of $10,000.00 made payable to me, 123 America Street, Anytown CA, 11617 no later than February 12, 2012. (I can be reached at the address below.) If Vroom Corp decides to ignore this demand for payment, I will further pursue all of its legal remedies without further notice to Vroom Corp. This letter serves as evidence that I have attempted to resolve this matter informally.
John Q Public
123 America Street
Anytown CA, 11617
Mail this letter by certified mail, return receipt requested, so you have proof that it was sent and received.
If they don't pay you within 10 days, you move on to filing your case in small claims court. Go here again and find your state's brochure and follow the instructions for following the small claims filing procedure. Rules and procedures can vary by court, so it's important to check and adhere to your jurisdiction's procedures. The good news is that these are easily publicly accessible. On top of that, if you ever have questions at any point along the way, you can just ask your courthouse small claims personnel for help. They will be more than happy to assist you.
Follow the court link and follow this step-by-step guide:
Find the Right Court to File Your Claim: You want to make sure you file your case in the right court, otherwise it may get dismissed out of hand. Generally you can file in the county small claims court where you live, where you lived when you purchased the car, or in the county where you paid for the car.
File Your Claim: Go to the small claims clerk and hand in your forms. Bring some money, it will probably cost $25-$100 depending on your court to file a claim. The clerk may ask you a few questions, then stamp "FILED" on your forms and give you a date, time and location for your hearing. Mark it down in your calendar. That's your day!
Tell The Other Side What's Up (Serve Your Claim): This is extremely important. You must provide notice to the other party but you can't just go over to their office and toss the papers through the mail slot. You also can't do this yourself. You can have someone you know do it for you, hire a "process server," or a sheriff. They must hand the proper papers to the right person and say "These are court papers." The person they serve must be an officer of the corporation or their registered agent for service in your area. Ask your small claims clerk for assistance in finding the registered agent. After serving the papers, you must then fill out a Proof of Service and the sever provide a Proof of Mailing and then file that with the small claims clerk.
Prepare Your Evidence Packet: You want to be able to hand the judge a nice little bound packet at the start of the proceeding. Have an index at the front and use tabs to make the different sections easily accessible. Make sure you clearly show where each piece of evidence came from. You probably don't need to submit as much material as Peters did. Though she won, it was kind of overkill, with several layers of evidence. This isn't CSI or Law and Order. Small-claims courts are not set up to go through piles and piles of exhibits, and you might even annoy the judge/referee. It's fine to have extra material as backup, but the first and main thing you should hand in is just your best evidence, the evidence that most clearly demonstrates why you should win. If you wanted to demonstrate, for example, that your car wasn't getting the advertised gas mileage, you could fill your car up with gas, take pictures of the fuel gauge and odometer, and then drive several miles and take pictures of the odometer after that. Show that along with evidence of the advertised EPA vs what you actually experienced, and that should largely be what you need. Don't include hearsay, except as sworn affidavits – and those even might not be accepted.
Watch Several Episodes of Judge Judy (or similar): Seriously. The experience of going through small claims is pretty much exactly that, except the judges aren't as sassy. Watch a few of those and you will have a good idea of what to expect on your court day.
Go to Court:
* Dress like you're going for a business interview. The other person will be wearing a suit or equivalent, so don't let them outdress you.
* Keep your cool. The first person who gets emotional usually loses.
* Deliver your argument for why the other party loses. Don't talk about the injustice of it all, or how they're a bad company that hurts people's feelings. Focus on the clear material breaches of the contract or deal, and communicate that succinctly and logically, with each statement you make building up your argument in a logical progression.
Get Your Money: Assuming you've won, the next step is to get your cash. Because they're not full-on court, small claims court can't enforce collection of the sums they award. If the car company doesn't appeal and doesn't pay within the set timeframe, there's then various methods you can use to force them to pay. One method that has worked for folks suing banks in small claims court is to take a copy of your winning judgment over to the Sheriff's office and pay a fee of around $100 to get a Sheriff's levy placed against the other party. This is where the sherriff or his deputies go over to the other party's office, inventory all the items inside, place an order forbidding them to be removed from the property, thus setting the stage for a Sheriff's Sale where everything is publicly auctioned off in order to generate the cash to pay your judgment. In all the cases I've seen, this method has worked to quickly get the attention of the powers that be at that company, forcing them to write a check to the plaintiff with great haste...
But What If They Appeal: Just because you win in small claims doesn't mean the game is over. For instance, in the Peters case, Honda has said they're going to appeal. Reached for comment, Honda public relations representative Chris Martin told Jalopnik, "We disagree with the judgment rendered in this case, and we plan to appeal the decision." The case will go to Superior court and then the company's hands are no longer tied behind their back. They can bring in their lawyers and bring all their legal might to bear. But you've still got a stone in your slingshot, David.
"Under many consumer protection statutes, consumers can get a lawyer for free or to work on consignment," attorney Sam Glover told Jalopnik. In that instance, the consumer doesn't have to pay out of pocket for the attorney, the attorney gets paid from the judgment if and when the case is won. "Some states do have consumer fraud laws that might apply here," and if there's a statutory violation like that it makes shopping the case easier. "If I'm a lawyer and someone comes to me, and I think I can get penalties, and I can win the case and I can get my attorney fees paid, that person is probably going to come out better for hiring me than they would otherwise." And if you've already got the small-claims judgment in hand, that will make selling your case to prospective lawyers that much easier. The National Association of Consumer Advocates has an online resource to help you find an appropriate attorney. You can also look up the phone number for your state's bar association, call them up, outline your story, and ask for a referral. Hang in there! The upside can be much more than just money, but a chance to taste actual justice.
The case has been "Very personally rewarding," Heather Peters told Jalopnik. "The response has been overwhelmingly positive. People are so grateful to have someone who stood up for them. They feel like their voice being heard."
Ben Popken is the former Managing Editor of Consumerist.com. You can follow him online at iambenpopken.com. This is his first piece for Jalopnik.
DISCLAIMER: This guide is for informational purposes only and should not be relied on for legal advice. If you need legal advice, contact an attorney
PHOTO CREDIT: AP