With Dr. Newhart now in federal custody on charges of bank robbery, the chances that he will ever be able to repay all of what he owes are slim. I don’t mean to discourage you, but unfortunately winning a small claims case isn’t enough to get your money back. While the information below is, to the best of my knowledge, still accurate, it may be less relevant given Dr. Newhart’s incarceration.
While I really want to help, you should know that I’m not a lawyer and I don’t have any legal training. Please use all the resources available to you to make the best decisions for your particular case. I hope the information provided here will help get you started.
The Orange County Courts web site has a wealth of very useful information that you should look at before filing. I’ll be referring to it a lot, because they say it better and more completely than I can.
In summary, here’s what you do:
- Send a “demand letter” asking for your money back.
- File a case using form SC-100 (Very simple to fill out. Examples below).
- Have someone unaffiliated with the case (not yourself) give or send a copy of the SC-100 to Dr. Newhart. This is called “service of process”.
- Have the person who served Dr. Newhart sign form SC-104 (examples below) to prove that you served him. File it with the court.
- Show up on the trial date with all your evidence and thoughts well prepared.
Step 1: Before you get started
Before you file, you need to be able to declare that you asked for your money back. This is called a Demand Letter. The Orange County court has a good template for Demand Letters.
- Example: Demand Letter sent to Dr. Newhart
Our main problem with the demand letter was where to send it. When we sent it to Dr. Newhart’s office address in Laguna Niguel, it was returned undeliverable. That’s still (as of May 14, 2013) the address of record of Damien L. Newhart, D.D.S., Inc. However, the Dental Board of California shows his P.O. box address on their web site if you do a search for his license information. I have reason to believe that’s a good address for him, and at least one plaintiff in a small claims case has used that address for service of process. More on that later.
|1024 Bayside Dr. #113||Newport Beach||CA||92660|
Step 2: Filing your case
Here again, your first stop should be to review the excellent information on the Orange County Courts’ site.
To file your case, you need to fill out a Plaintiff’s Claim and Order, Form SC-100. If you are filing over work Dr. Newhart did at the office in Laguna Niguel, the proper venue to be heard is the Laguna Hills court house.
- Example: Plaintiff’s Claim and Order from an existing case against Dr. Newhart
- Example: E-filed Claim and Order from another case against Dr. Newhart
You have the option to efile your form. I would recommend efiling, as when we filed at the courthouse we had to stand in line for over an hour.
Step 3: Service of Process
You have to formally notify the person or business you’re suing that you are doing so. This is known as “service”. The details are again on the OC Courts site, The two biggest hurdles are finding someone to do the service (since you can’t do it yourself), and finding where to do the service.
- Example: Proof of Service (Substituted Service to the Newport Beach address, below)
- Example: Proof of Service (Substituted Service to the Inglewood address, below)
Finding a Process Server
The first hurdle isn’t too hard. I got a whole page full of possibilities just by googling “Orange County Process Servers”. They will charge a fee of around $50 to serve someone locally. The Orange County Sheriff will also do service for a fee. It’s also legal to get a friend or family member to do it, as long as they’re over 18 and not a party to the case.
Where to Serve Dr. Newhart
The second hurdle, where to serve, has been more difficult since Dr. Newhart simply disappeared after he closed his office. The following two addresses have been used for service in small claims cases filed recently against Dr. Newhart.
|1024 Bayside Dr. #113||Newport Beach||CA||92660|
|3516 West Imperial Highway||Inglewood||CA||90303|
The Bayside Drive address is the address Dr. Newhart has registered with the Dental Board. It is a private PO box at the UPS store in the shopping center there. You can do substituted service to the person in charge, along with dropping a copy in the mail to the PO box. Of the two, this is probably the better address to use, since there’s a formal connection to his dental license.
[Update May 13, 2013] The plaintiff in the Martinez v Newhart case attempted to serve the PO Box (also known as a CMRA) in Newport Beach, but was rebuffed. This is clearly an error on the store’s part. This article from the Sacramento Press points out that there’s a legal obligation on the part of Commercial Mail Receiving Agencies (CRMAs, or private PO boxes) to accept service of process. The relevant text from the California Business and Professions code, Section 17538.5 is as follows, first for the CRMA:
(c)A commercial mail receiving agency (CMRA) shall not provide private mailbox receiving service to any customer until it obtains from that customer at least two pieces of identification regarding that customer and provides to that customer an acknowledgment, as set forth in subdivision (f), which (1) acknowledges the obligation to advise the CMRA of any change in address, (2) authorizes the CMRA to act as an agent for service of process, and (3) acknowledges the requirements of Sections 17200 and 17500, which prohibit unfair competition and false advertising. The commercial mail receiving agency shall thereafter maintain a copy of any United States Postal Service Form 1583 for each mailbox service customer, along with a copy of each of the two pieces of identification used by the customer, for a period of two years after the termination of service to that customer.
Paragraph d applies to Dr. Newhart:
(d)(1)Every person receiving private mailbox receiving service from a CMRA in this state shall be required to sign an agreement, along with a USPS Form 1583, which authorizes the CMRA owner or operator to act as agent for service of process for the mail receiving service customer. Every CMRA owner or operator shall be required to accept service of process for and on behalf of any of their mail receiving service customers, and for two years after termination of any mail receiving service customer agreement. Upon receipt of any process for any mailbox service customer, the CMRA owner or operator shall (A) within 48 hours after receipt of any process, place a copy of the documents or a notice that the documents were received into the customer’s mailbox or other place where the customer usually receives his or her mail, unless the mail receiving service for the customer was previously terminated, and (B) within five days after receipt, send all documents by first-class mail, to the last known home or personal address of the mail receiving service customer. The CMRA shall obtain a certificate of mailing in connection with the mailing of the documents. Service of process upon the mail receiving service customer shall then be deemed perfected 10 days after the date of mailing.
You might be able to do personal service at the Inglewood address, since Dr. Newhart was practicing there (at least, as of April 2, 2013). If not, you can do Substituted Service to someone in charge at the office. See the example Proof of Service above for details. The Inglewood address, by the way, is also one of the addresses of Newhart Orthodontics, owned by Dr. Newhart’s step-father, although that business disclaims any connection to Dr. Damian Newhart.
A third alternative would be to catch Dr. Newhart when he appears for a judgment debtor exam. There are several of these scheduled for him in the near future. The Civil page has information on the date and place of these exams, or you can research them for yourself on the OC Courts site.
Filing Proof of Service
Regardless of who or how you serve Dr. Newhart, the person who does so must file a Proof of Service Form SC-104 with the court. Or they can fill it out and give it to you to file. There’s no need to stand in line for this. There is a drop box on the left side of the small claims office. You just use the time stamp machine to stamp your original (you can also stamp a copy for your records) and drop the forms in the tray provided.
What To Do If You Can’t Complete Service
Remember that there are requirements for how much time in advance of the hearing you have to serve the defendant. If you are later than that, you should request a postponement by filing a Request to Postpone Trial (Form SC-150)
- Example: Request to Postpone Trial
Step 4: Preparing for trial
I haven’t actually gotten past this step, so I don’t have anything to add to the excellent material available on the OC Courts web site. I did, however, take a field trip to small claims courts and learned some useful things. I wrote up my experiences in this post.
Hopefully, this material will get you started down the path toward receiving just compensation for your losses.