Vehicle Embezzlement

[jmartinezclark]

Hello,

Situation:
On December 3rd, 2007, my wife and I agreed to rent our vehicle to an acquaintance (the "renter") who we presumed was a trust-worthy person after checking several of his references, checked that he had solid employment, and after he gave us the impression of being a person of good moral character.

We signed a rental agreement on December 3rd, 2007 and as of February 1st, 2008, the "renter" has stopped making his rental payments on the vehicle and has ignored our phone calls, voice mails, and emails. My wife and I moved from San Diego, CA to Honolulu, HI a few weeks after the renter took possession of the car (There was a witness at the time the "renter" signed the agreement with us and took possession of the vehicle.)

Following the instructions on the San Diego Police Department's website at the section titled "Rental Car Thefts, Embezzlement" (http://www.sandiego.gov/police/about/autotheft.shtml), we have sent (Certified Mail) a demand letter to the "renter" on March 14th, 2008, which the "permissive user" has ignored. It's been more than 10 days since we sent the "permissive user" a demand letter rescinding our permission to use the vehicle and cancelling our agreement per the instructions at the above mentioned website.

The U.S. Postal Service has lost a box with our personal files in our move to Hawaii, and among these files was the rental agreement that we signed with the "renter."

The San Diego Police Department refuses to accept a police report under section 10855 of the California
Vehicle Code (Division 4 - Special Antitheft Laws Chapter 4. Theft and Injury of Vehicles - http://www.dmv.ca.gov/pubs/vctop/vc/tocd4c4.htm), which states...

“Whenever any person who has leased or rented a vehicle willfully and intentionally fails to return the vehicle to its owner within 10 davs after the lease or rental agreement has expired, that person shall be presumed to have embezzled the vehicle.”

The San Diego Police Department said in their refusal to take the police report..."If you cannot provide a legible, signed contract, we will not be able to proceed as we cannot establish the elements of the crime."

We're very frustrated about this situation since we entrusted this vehicle to the renter who was an acquaintance who my wife and I believed was a trust-worthy person. It looks like I don't really have any options to prosecute this crime. It's just difficult to see how the system could allow an unscrupulous person get away with this felony.

A civil lawsuit for breach of contract is an option to at least get a judgment against the "renter", however, I imagine a civil court will request evidence of a valid signed contract (which I unfortunately have lost), to proceed with the lawsuit.

I'd like to have this forum's input on this situation. What other options do I have to prosecute the "renter" criminally or civilly?

Thank you in advance for any input.

[farmer_giles_of_ham]

The San Diego Police Department said in their refusal to take the police report..."If you cannot provide a legible, signed contract, we will not be able to proceed as we cannot establish the elements of the crime."

How about a signed notarized affidavit of "lost contract", stating the original terms and conditions. Anyway, it is still your property- you have the title. Thats a fact, so on that basis there is at least a misdemeanor of "unauthorized use".

Frankly renting a personal auto seems a bit odd to me, its easier just to sell it. So anyway you could sell it to a repo company, or hire them, to go and get that car.

[jmartinezclark]

I asked the San Diego Police Department about providing a sworn affidavit from me and one from the witness in lieu of the lost contract and they still refuse to take the police report without a copy of the original signed rental agreement. This is what they had to say on this...

"VC 10855 makes a breach of a vehicle rental (civil) contract a felony under certain circumstances. Because of this, many jurisdictions refuse to prosecute for this (once the suspect is in custody and the details are discovered). Our DA will follow through with prosecution, with the proper documentation. Because the premis of this vilation is the breach of contract, the contract is critical to the case. No contract, no crime is the short version of this."

[farmer_giles_of_ham]

Your affidavit IS the contract. Its evidence that there is a contract. A contract can be verbal, written, or whatever. An affidavit IS proper documentation.

Anyway the point is to get the car back, right? Its your car, you have the title, go get it or arrange for someone else to do so. "Repo Man", happens all the time.

[jmartinezclark]

farmer_giles_of_ham,

I agree with you; an affidavit IS the contract. This has been my position since I initially contacted the San Diego Police Department, however they don't seem to get it. I even communicated with a detective in the auto-theft unit and he refuses to take the case with an "affidavit of lost contract".

I'm doing research within the California Codes to see if I can find a law that makes an affidavit admissible in lieu of a contract or something among those lines. So far, I haven't found anything. If you can point me to where I could find this law, I'd greatly appreciate it.

My goal with this case is 1) to prosecute the individual in criminal court, 2) file a lawsuit against the individual in civil court, and 3) Repo the car (with a Repo-man).

I'm looking for help on this forum for goal#1 and goal#2 above. The Repo-man is another story.

Thank you!

[weishaupt1776]

forget the police report, just go straight to the DA with a sworn complaint and yur witness sigs

http://www.suijuris.net/forum/member...affidavit.html

[jmartinezclark]

I tried the D.A. route. In their website it says the following in their FAQs:

"How do I report a crime?
All crime reports should be directed to the law enforcement agency in the area where the crime occurred. The District Attorney's Office does not take crime reports. If you're trying to report an emergency situation, call 911 on your telephone to be connected to the emergency services you require.

However, there are some exceptions. Crimes involving consumer fraud, environmental crimes or those involving misconduct of public officials may be reported to the District Attorney's specialized divisions. Call us directly at 619-531-4040."

I contacted the D.A. via email with my case and their response was...

"Contact an attorney for legal advice."

weishaupt1776, your link with the thread with citation on the acceptance of affidavits confirms my theory. Thank you for that! Unfortunately none of them are in CA; my perception is that all those cites will be ignored by the San Diego Police Department since I still cannot prove under CA law that an affidavit must be accepted in lieu of a lost contract.

[farmer_giles_of_ham]

look for the procedure of "private criminal complaint".

Usually a sub section of the DA office. One makes and preliminarily prosecutes the accused defendant personally, goes to some kind of arbitation, with an automatic appeal to regular court. Gets the ball rolling.

unless this doesnt exist in CA, which seems odd. I have been searching myself online and nothing yet, for some reason. Call DA office and ask how to make one.

[jmartinezclark]

This is a new concept to me.

I searched the term "private criminal complaint" and all the hits I got were from the state of Pennsylvania and according to the Philadelphia's D.A., they only handle "private criminal complaint" for misdemeanors cases.

I checked the CA Attorney General's website; there is no option to report a crime other than contacting the local police department where the crime occurred or reporting to the Attorney General a consumer complaint.

[farmer_giles_of_ham]

Its surprising that Pennsylvania is the only state with this procedure- that is how I knew about it. I couldn't find it for Calif either- but there has to be a way to motion the court of common pleas to hear a criminal case, in other words force the DA office to take it- again it is very odd if PA is the only state with this.


I will try to find what I can on www.findlaw.com

you could directly call the DA office, or the general court system, and see what sort of answer you get.

I can tell you that in Penn. any crime may be denounced vis the "private criminal complaint"- I remember a case of homicide by a cop that the system refused to prosecute, the victim was a black man, so a local black rights organization pursed the matter and forced the issue to trial- there may have even been a conviction in the end for manslaughter. (not sure on the outcome)

anyway, what about "unauthorized possession of vehicle"- a misdemeanor?