Legal Question in Personal Injury in California
Personal economic tort - small claims court
I currently have a contract with one of the cell phone companies for two cell phones. Later, I did not need them. Because I did not want to pay $350 to cancel the contract on the two phones, my ''friend'' asked me to sell him the phones and that we would pay me directly for the monthly useage. I sold both phones for $100 since I wanted to help him. The first couple of months went okay and I quickly notified him that he was exceeding the limit. The contract was still under my name. To make the story short, he did not pay for three months ($345 for these three months for the two phones) and I had to pay the cell phone carrier because I did not want my credit to be affected. I temporarily cancelled the lines (not the contract) and the carrier did not charge me anything for one month. My ''friend'' dissappeared, but I can find him. I have asked him to return the phones to me so I can sell them so I can reduce the damage caused. He has not returned them and I think he sold them somewhere else. In order to cancel the contracts I would have to pay $350. Therefore, if I don't get the phones back, I am going to have to cancel the contracts. The total damages add up to $695 ($345 for 3 mos + $350 for cancelling contract). Can I sue him?
1 Answer from Attorneys
Re: Personal economic tort - small claims court
Yes, but what really matters is whether you would win, and that may depend upon the terms of your agreement with the cellular company. I think the odds are heavily in your favor, but there is one problem you may not be able to overcome.
Many contracts are not assignable, which means that the parties have to comply personally and cannot transfer their obligations to someone else. If your cellular contract is like this -- and it probably is -- and if the judge wants to read the contract, then he may rule against you on the ground that you breached the underlying contract by assigning your obligations to your friend and therefor cannot be heard to complain that the assignment did not go as planned.
Most judges probably won't care much about whether the assignment was proper because the non-assignment clause was written for the cellualr company's benefit and it isn't the one who has been harmed. If the judge tells you he believes the non-assignment clause defeats your claim, explain that the clause was for the company's benefit and that it isn't complaining and hasn't been harmed. The argument might not succeed, but it probably will persuade most judges.
As I said earlier, I think you have a winning case. The problem is that after you win you will still have to collect, and collecting can be difficult, costly and time-consuming. Your friend doesn't sound like he has a lot of money burning a hole in his pocket, so you may have to garnish his wages or seize his property. These procedures are available and the costs involved will be added to your judgment (and to the amount you can have seized from him), but if they do not get results you will be liable for the costs and will still not have collected your money.
Think carefully about whether this man will pay up and whether he has the means to pay when a marshall comes to his door to enforce the judgment. If the answer to both of these questions is no, it might be better to just absorb the loss yourself.
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