Neighborhood CVS reneges on agreement to allow neighbors to park in lot, has them towed

[Continued from here.]

Chapter 2: The Hearing

On February 15, I attended small-claims court session to state my case against CVS for towing my car from their lot after allowing my neighbors and me to park there for 25 years.

It’s worth sharing some background about how small-claims court works, for people who haven’t had the “pleasure” of seeing it in person. [Click here to skip down to the description of my case if you just want to read that.]

• In many jurisdictions, including mine, small-claims court is presided over by a magistrate instead of a judge. Magistrates are frequently but not always attorneys. They are appointed by the judges who oversee the courts on which they serve.
• There’s no jury. The magistrate or judge renders the decision.
• There’s no court reporter. The hearing is generally recorded.
• There’s no bailiff. Generally speaking the only court officer in the room (aside from the mediator; see below) is the magistrate.
• Small-claims hearings are usually more informal than other court sessions. This means, for example, that there’s no witness box; the plaintiff and defendant are sworn in and present their cases from their tables.
• Plaintiffs and defendants often represent themselves, i.e., without attorneys.
• The majority of small-claims cases most days are debtor cases, e.g., credit-card companies suing people who are behind on their payments. Often a single attorney is there to represent multiple creditors; for example, at the hearing I just attended, an attorney was representing both Capital One and Discover.
• Most defendants don’t show up and plaintiffs also often don’t show up.
• At the beginning of the session the magistrate “takes attendance,” calling out the plaintiff and defendant for all cases and marking which are present and absent. Then the quick cases are handled first, e.g., cases where neither party showed up are continued to a later hearing, cases where the defendant didn’t show up get a quick default judgment in favor of the plaintiff, etc.
• There may be a mediator present, and the plaintiffs and defendants in cases where both are present may be encouraged to attempt mediation to see if the matter can be resolved that way rather than through a trial.
• Once the quick cases are handled and mediation has potentially been attempted and failed for the others, trials are held for them.
• During the trial, the plaintiff speaks and presents evidence, then the defendant speaks and presents evidence, then the plaintiff is offered the opportunity to rebut the defendant, then the plaintiff and defendant are offered a final opportunity to say anything else they have to say.
• Sometimes the magistrate renders a decision immediately, but frequently they will take the case under advisement, which means they’ll reach their decision later and send it by mail to the plaintiff and defendant.
• Generally speaking, if the plaintiff loses they can’t appeal, but if the defendant loses they are allowed to appeal to a hearing in front of a judge.

[If you’ve been to small-claims court and things worked differently than how I’ve described them, please comment so I can update this!]

There were about ten cases on the docket at my hearing, and of those, only one of them besides mine went to trial. Just to satisfy your curiosity, the other case, which I observed because it was tried before mine, was a commercial landlord suing a previous tenant for their last month’s rent plus electricity. The magistrate did not render a decision during the hearing, but I’m pretty sure she will rule in favor of the plaintiff. Having said that, she may only award part of the requested damages. The landlord had originally agreed to accept rent for only part of the last month, but after the defendant only a few days later than the agreed-upon date, the landlord demanded rent for the whole month. Both parties agreed that there was no written lease and that the landlord originally agreed to accept rent for only part of the month, so that seems to be the only agreement in effect and that’s what the magistrate should enforce.

It is amusing to note that the commercial landlord in the above case was the company that towed my car from the CVS lot.

Now, on to my case…

There was a mediator present at the hearing. Before the start of the hearing she asked me if I was willing to attempt mediation and I said yes. The person there representing CVS, a district manager, originally refused mediation but subsequently agreed to attempt it when the magistrate, ahem, strongly encouraged him to do so.

The mediation was a waste of time. The district manager had been given clear, unequivocal marching orders by CVS corporate not to: admit any wrongdoing; admit that there was a verbal agreement in place between the CVS and its neighbors to allow parking in the lot; negotiate; settle; or agree to any compensation of any sort. During the mediation I said I’d take the money as a CVS gift card instead of cash; no dice. I said I’d split the difference and take $100 even though CVS owed me nearly $200; again, no dice.

During the trial we were each asked to identify ourselves and then quickly sworn in. Then I told my story basically just as I wrote it in yesterday’s blog posting. I had a written statement which I read from so as to be sure not to forget anything. As evidence, I presented:

1. my written statement;
2. the invoice from the tow lot;
3. the letter I sent to CVS demanding reimbursement before suing them;
4. the receipt from the postal service for mailing the letter certified mail; and
5. a printout from the postal service web site proving that the letter was delivered to CVS’s legal department.

I brought copies of all of these documents for both the defendant and the magistrate, because I knew that when presenting evidence, each party is required to present it to other party before presenting it to the judge. The defendant handed back my evidence to me without looking at it for more than a few seconds.

When it was the defendant’s turn to speak, he basically made the following points:

• There’s no written evidence of an agreement between CVS and its neighbors to allow them to park in the lot.
• There are clearly posted signs saying that the lot is for CVS customers only and others will be towed.
• It’s “just one lot,” there’s no “front lot” and “rear lot” as I was claiming.
• When he visited the site to check it out he saw a lot of cars part on the street next to the lot; why would they park there if they were allowed to park in the lot.

As evidence he presented photos of the signs and people parked on the street next to the lot.

It’s worth pointing out what he did not say:

• He did not say there was no agreement; he said he didn’t know of any agreement.
• He did not say that the towing company was in fact towing cars parked in the rear lot before November 16 (if they had been, he could have gotten a written statement to that effect from the towing company and presented it as evidence, which he did not do).
• He did not directly, explicitly dispute a single statement I made in my statement.

I didn’t point most of these out when I was given the opportunity to rebut. I thought they were kind of obvious, and from the magistrate’s questions for him and me it seemed pretty clear that she “got it,” so I didn’t want to insult her intelligence by belaboring the obvious.

The points I made in my rebuttal were:

• The defendant’s claim that there was no distinction between the two lots was clearly belied by the fact that my wife and I had parked in the rear lot multiple times per week without ever being towed, whereas the few times we accidentally left our cars in the front lot they were towed every time. I also emphasized that towing companies don’t leave money on the table; when they are hired to patrol a lot, they reliably patrol it every single night.
• People park on the street instead of in the lot because the on-street parking is closer to their house so they obviously park there when they can and only park in the lot when there’s no space on the street. I was also going to point out that he visited after the CVS started towing cars from the rear lot, so obviously people had stopped parking there. However, I didn’t get a chance to point this out, because as soon as I explained why people preferred parking on the street, the magistrate interrupted me to say yes, of course that was why, and she called the defendant’s statement about on-street parking “irrelevant” to the case.

At this point the magistrate said she would take the matter under advisement and send a decision by mail, and the hearing ended.

My feel for how the hearing went is that the magistrate is going to rule in my favor, but only time will tell.

I think it’s worthwhile to address the friendly comment from Don on yesterday’s blog posting:

Do you (or do any of the residents) have the agreement to allow parking in writing? Are there signs posted that there is no overnight parking allowed? I’m afraid that if the local manager fights it and you don’t have anything in writing, you may have a much lower chance of winning.

This is definitely an issue. However, it often falls to the magistrate in a small-claims case to judge the credibility of both parties’ testimony, just as a jury would in a jury trial. I knew going on that the lack of a written agreement meant that this was going to hinge on credibility. That’s why I went prepared with a written statement and evidence.

I don’t think it escaped the notice of the judge that the defendant never explicitly denied that people had been allowed to park in the lot before November 16, a fact he could have proven false by getting a written statement from the tow company, something he had the authority to demand while I didn’t.

Also, there’s an applicable legal principle here, which many people misunderstand, which is worth pointing out. You often here people say, “If there’s nothing in writing, there’s no evidence.” Nope! Testimony is evidence. When someone raises their hand in court and swears to tell the truth, the whole truth, and nothing but the truth, then the things to which they testify are, as a matter of law, evidence. Certainly, the judge or jury has to evaluate whether they’re believable, but it’s simply not true that there was no evidence of my claim. The fact that I was willing to go to the trouble of sending a letter to CVS, filing a small-claims case, showing up for the hearing, and testifying about the agreement under oath, are all evidence.

– Have you considered taking your plight to any of the local TV stations that attempt to help make wrongs right?

I’ve considered doing so if I lose the small-claims case, just because I think CVS is behaving like a corporate asshole and deserves to be embarrassed for it. But I honestly haven’t decided whether it’s worth the effort. We’ll see if/when the time comes.

Until the hearing yesterday I wanted to give CVS the opportunity to resolve this amicably, so I was intentionally handling it privately. Well, mostly privately; I did post about it briefly on Mastodon the day before the hearing.

– Have you considered posting on more mainstream social media? I don’t know if you have a twitter account or anything, but CVS does.

I won’t use Facebook or Twitter and I’m not sure there’s anywhere else it would be useful to post. I suppose I may leave them bad reviews on Yelp and Google. Aside from that my answer above applies here as well: until yesterday I wanted to handle this privately, and now I’m not sure it’s worth the effort.

– Would the employee at the tow company write a letter, or sign your ghost-written letter, attesting to the historical practices that CVS had followed?

I thought about asking them for a statement before the hearing, but as I noted above I didn’t have the authority to demand one, and they would probably have been reluctant to provide one for fear of provoking CVS into firing them. I didn’t feel comfortable putting them in that position for the sake of satisfying my righteous indignation.

If CVS loses, and appeals, and I decide it’s worth my time and energy to fight the appeal, then I’ll depose a representative of the tow company and they’ll be asked under oath what the situation was prior to November 16. I doubt they would lie under oath just to keep CVS happy, and I doubt CVS would expect them to or hold it against them if they don’t.