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The purpose of Small Claims Court is to hear disputes involving small amounts of money, without long delays and formal rules of evidence. Disputes are presented by the people involved and lawyers are normally prohibited. The maximum amount of money that can be sued for in California is $5,000 ($2,500 if you are suing a bonding company or other guarantor). In legal jargon, this is often called the "jurisdictional amount." Unfortunately, however, you are only allowed to bring two lawsuits for more than $2,500 within any calendar year unless you are suing on behalf of a school district or other public entity, in which case there is no case limit. To establish your eligibility for suing for between $2,500 and $5,000, you will have to state as part of your Plaintiff's Claim that you have not already used up your yearly quota.There are three great advantages of Small Claims Court:
But before you decide that Small Claims Court sounds like just the place to bring your case, you will want to answer a basic question: Are the results you are likely to achieve in proportion to, or greater than, the effort you will have to expend? Even in Small Claims your case will probably take 10-20 hours to prepare and present and, depending on your personality, may even cause a few sleepless nights.
In order to clearly assess whether your dispute is worth the effort of bringing to court, you will want to understand the details of how Small Claims Court works -- being clear about who can sue, where and for how much, is a good start. You will also want to learn a little law so you can make an informed decision as to whether you are entitled to relief, and if so, how do you compute the exact dollar amount to sue for? Finally, and most important, comes the detail that so many people overlook, to their later dismay. Assuming that you prepare and present your case brilliantly and get a judgment for everything you request, can you collect? The ability to get paid seems a silly thing to overlook, doesn't it? Unfortunately, many plaintiffs who go through the entire Small Claims procedure and come out a winner have no chance of collecting a dime because they have sued a person who has neither money nor any reasonable prospect of getting any.
The purpose of the first dozen chapters of this book is to help you decide whether or not you have a case worth pursuing. These are not the chapters where grand strategies are brilliantly unrolled to baffle and confound the opposition -- that comes later. Here I am more concerned with such mundane tasks as locating the person you want to sue, suing in the right court, filling out the necessary forms and getting them properly served. Most California Small Claims forms are uniform for the entire state, although a few local forms may vary slightly from one judicial district to the next. Blank copies of all forms are available at your local Small Claims Court clerk's office.
Here is a preliminary checklist of things you will want to think about at this initial stage. As you read further, we will go into each of these areas in more detail. Oh, and one more thing: Free Small Claims information sheets are available to you in all counties. In addition, if you have questions, you either have the opportunity to meet with a trained Small Claims advisor in person or talk to one by phone.
Defendants may want to file their own lawsuit. In addition to their right to vigorously defend themselves, defendants also have the opportunity to file their own case against the plaintiff. (See Chapters 10 and 12.) You will want to do this if you believe that you suffered money damages and the plaintiff is legally responsible for your loss. Defendants' claims commonly develop out of a situation in which both parties are negligent (say in a car accident) and the question to be decided is who was more at fault. If your claim is for less than the Small Claims Court maximum, you can file your Claim of Defendant in Small Claims Court. But if it is for more, you will want to file your case in Municipal Court (up to $25,000) or Superior Court (over $25,000) and then have the Small Claims Court case transferred to this court. (See Chapter 10, Section C.) Before making any decision, read your local rules carefully.
Mercifully, there is not a great deal of technical language used in Small Claim Courts. But there are a few terms that may be new to you and that you will have to become familiar with. Don't try to learn all of these terms now. Refer back to these definitions when you need them.
Abstract of Judgment: An official document you get from the Small Claims Court clerk's office which indicates that you have a money judgment against another person. Filing it with the County Recorder places a lien on real property owned by the judgment debtor.
Appeal: In the Small Claims context, a request that the Superior Court rehear the case from scratch and reverse the decision of the Small Claims Court. A Small Claims appeal cannot be made by the person who brought the claim in the first place (the plaintiff). That is, only a defendant can appeal on the plaintiff's claim, and only the plaintiff can appeal on the defendant's counterclaim, if she brought one. The appeal is heard in the appellate division of the Superior Court, and the parties may (but do not have to) be represented by attorneys.
Calendar: A list of cases to be heard by a Small Claims Court on a particular day. A case taken off calendar is removed from the list. This usually occurs because the defendant has not been served or because the parties jointly request that it be heard on another day.
California Civil Code (CC) and California Code of Civil Procedure (CCP): Books which contain some of California's most widely used substantive and procedural laws. They are available at all public libraries and law libraries (which are located at the county courthouse and are open to the public). They are also available online by going to http://www.leginfo.ca.gov/calaw.html. Small Claims rules are covered in CCP Secs. 116.110-116.950.
Claim of Defendant: A claim by a defendant that the plaintiff owes him money. A Claim of Defendant, also called a "Defendant's Claim," is filed as part of the same Small Claims action that the plaintiff has started.
Claim of Exemption: A procedure by which a "judgment debtor" can claim that, under federal and/or California law, certain of his money or other property is exempt from being grabbed to satisfy a debt.
Claim of Plaintiff: Also called "Plaintiff's Claim and Order to Defendant," this document is filed with the Small Claims Court to initiate a lawsuit.
Conditional Judgment: When a court issues "equitable relief" (such as the return of a piece of property), it has power to grant a conditional judgment. A conditional judgment consists of certain actions or requirements that are contingent on other actions (for instance, return the property in ten days or pay $2,000).
Continuance: A court order that a hearing be postponed to a later date.
Default Judgment: A court decision given to the plaintiff (the person filing suit) when the defendant fails to show up (that is, defaults).
Defendant: The person or "party" being sued.
Dismissed Case: A dismissal usually occurs when a case is dropped by the plaintiff. If the defendant has not filed a claim, the plaintiff simply files a written request for dismissal. If the defendant has filed a claim, both plaintiff and defendant must agree in writing before a dismissal will be allowed. If a plaintiff does not show up in court on the appointed day, the judge may dismiss the case. Most cases are dismissed "without prejudice," which is legal jargon meaning they can be refiled. But if a case is dismissed "with prejudice," it means that it can't be refiled unless the dismissal is first successfully appealed.
Equitable Relief: There are several legal areas -- called "recission," "restitution," "reformation" and "specific performance" -- in which a Small Claims Court judge has the power to issue judgment for something other than money damages -- that is, to order a party to return "one of a kind" property, end a fraudulent contract, fix a mistaken contract or do one or more of the acts discussed in more detail in Chapter 4, Section E.
Equity: The value of a particular piece of property that you actually own. For example, if a car has a fair market value of $10,000 and you owe a bank $8,000 on it, your equity is $2,000.
Exempt Property: Under California law, certain personal and real property is exempt from being used to pay ("satisfy") court judgments if the debtor follows certain procedures. For example, a judgment debtor's equity in one or more motor vehicles is exempt up to $1,900. (See Chapter 24.)
Formal Court: As used here, this term refers to the regular "lawyer-dominated" state courts. In California, claims of up to $25,000 that are not filed in Small Claims Court are heard in Municipal Court, and claims over that amount are heard in Superior Court. Both of these courts require some knowledge of often confusing legal language and procedure, and you will want to do some homework if you decide to use them. If your claim really is too big for Small Claims Court, see Represent Yourself in Court: How to Prepare & Try a Winning Case, by Attorneys Paul Bergman & Sara Berman-Barrett (Nolo Press).
Garnish: To attach (legally take) money -- usually wages, or commissions, or a bank account -- for payment of a debt.
Hearing: The court trial.
Homestead Declaration: A piece of paper that any homeowner can file with the County Recorder's office which protects the equity in her home from attachment and sale to satisfy most debts. The equity protected is $75,000 for a family; $100,000 for persons who are over 65, blind or disabled, or over 55 with an income under $15,000 ($20,000 for married couples); and $50,000 for a single person. A homeowner is entitled to substantial protection even if a homestead is not filed.
Judgment: The decision rendered by the court. A judgment must be written down and signed by a judge.
Judgment Creditor: A person to whom money is owed under a court decision.
Judgment Debtor: A person who owes money under a court decision.
Judgment Debtor's Statement of Assets: An informational form which accompanies a notice of entry of judgment which must be completed by the losing side unless the judgment is appealed or paid. This form is designed to inform the winning party about such things as where the loser works, banks and owns property. (See Chapter 24.)
Judicial District: California is divided into many judicial areas or districts. Sometimes these are the same as a city or county, but in populous areas especially, there is often more than one judicial district in a county.
Jurisdiction: A Small Claims Court has jurisdiction -- or authority -- to hear cases involving money damages up to $5,000 where the defendant lives or does business in California. A Small Claims Court may also award several other types of remedies, which order a losing party to do a specific thing (such as return a valuable ring within two weeks). In legal lingo, these "equitable remedies" are called "rescission," "restitution," "reformation" and "specific performance," and are discussed in Chapter 4. (See also "Venue.")
Jury Trial: All Small Claims cases and appeals are heard by judges or commissioners. There is no right to trial by jury in California.
Legal Error: If a judgment is entered which contains a clear clerical or legal error, either party may promptly file a request (motion) with the Small Claims Court asking to have it corrected. (See Chapter 23, Section F.)
Levy: A legal method to seize property or money for unpaid debts under court order. For example, a sheriff can levy on (sell) your automobile if you refuse to pay a judgment.
Lien: A legal right to an interest in the real estate (real property) of another for payment of a debt. To get a lien, you first must get a court judgment and then take proper steps to have the court enter an "Abstract of Judgment." To establish the lien, you then take the Abstract to the County Recorder's office in a county where the judgment debtor has real estate to establish the lien.
Mediation: A process encouraged in many California Small Claims Courts by which the parties to a dispute meet with a neutral person (the mediator) who attempts to help them arrive at their own solution to the problem. If mediation succeeds, it's normally not necessary to argue the case in court; if it fails, the dispute can still go to court to be decided on by a judge.
Motion to Vacate a Judgment: A Motion to Vacate a Judgment is a document typically filed by a defendant who did not appear in court to defend a case on the proper date, with the result that the judge has entered a default judgment. The parties must usually attend a hearing where the judge listens to the defendant's oral presentation as to why he or she missed the first hearing and then decides whether to set aside the default and reopen the case. (See Chapter 10.)
Order of Examination: A court procedure allowing a judgment creditor to question a judgment debtor about the extent and location of his assets.
Party: Lawyer talk for a participant in a lawsuit. Thus the plaintiff or defendant may be referred to as a party -- and both together as the parties -- to a Small Claims suit.
Plaintiff: The person or "party" who starts a lawsuit.
Prejudice: A term used when a case is dismissed. A case which is dismissed "without prejudice" can be refiled at any time as long as the statute of limitations period has not run out (see Chapter 5). However, a case dismissed "with prejudice" is dead (can't be refiled) unless the dismissal is first successfully appealed.
Process Server: The person who delivers court papers to a party or witness. (See Chapter 11.)
Recorder (Office of the County Recorder): The person employed by the county to make and record important legal documents, such as deeds to real property. The County Recorder's office is usually located in the main county courthouse.
Satisfaction of Judgment: A written statement filed by the judgment creditor when the judgment is paid. (See Chapter 23, Section D.)
Statute of Limitations: The time period in which you must file your lawsuit. It is normally figured from the date the act or omission giving rise to the lawsuit occurs, and varies depending on the type of suit. (See Chapter 5.)
Stay of Enforcement: When a Small Claims Court judgment is appealed to the Superior Court by a defendant, enforcement (collection) of the judgment is stayed (stopped) until the time for appeal has expired.
Stipulation: An agreement to compromise a case which is entered into by the parties and then presented to the judge.
Submission: When a judge wants to delay deciding on a case until a later time, she "takes it under submission." Some judges announce their decision as to who won and who lost right in the courtroom. More often, they take the case under submission and mail out a decision later.
Subpoena: A court order requiring a witness to appear in court. It must be served on the person subpoenaed to be valid. (See Chapter 14.)
Subpoena Duces Tecum: A court order requiring that certain documents be produced in court.
Substituted Service: A method by which court papers may be served on a defendant who is difficult to serve by other means. (See Chapter 11.)
Transfer: The procedure by which the defendant can have a Small Claims case transferred to a "formal court" if she files a counterclaim for a dollar amount larger than allowed in Small Claims Court.
Trial De Novo: The rehearing of a Small Claims case from scratch by a Superior Court judge when an appeal has been initiated by the defendant. In this situation, the previous decision by the Small Claims judge has no effect, and the appeal takes the form of a new trial (trial de novo).
Unlawful Detainer: Legalese for "eviction." Unlawful detainers must be brought in Municipal Court, not Small Claims Court. (See Chapter 20.)
Venue: This basically refers to the proper location (judicial district or court) to bring a suit, and is discussed in detail in Chapter 9. If a suit is brought in the wrong judicial district or court (one that is too far from where the defendant lives or a key event in the case occurred), it can be transferred to the right court or dismissed. If it is dismissed, the plaintiff must refile in the right court. However, the case can be heard even in the wrong court if both parties appear and agree to do so.
Wage Garnishment: After a judgment has been issued (and the defendant's time to appeal has elapsed), the Small Claims Court clerk will issue a writ of execution upon the judgment creditor's request. This may be turned over to a sheriff, marshal or constable with orders to collect (garnish) a portion of the judgment debtor's wages directly from his employer.
Writ of Execution: An order by a court to the sheriff, marshal or constable to collect a specific amount of money due.
As part of using Small Claims Court, you may want more information on one or another California law. I refer to many of the most relevant ones in this book, but there are, of course, a great many more than I can possibly list here. If you imagine a child standing on a beach with a pailful of sand, with the sand in the pail representing the laws discussed in this book and the sand on the beach representing the total body of California law, you will have some idea of how many more laws you can sift through if you have the energy.
California laws are roughly divided by subject matter into sets of books called "codes." Thus, there is the Civil Code, the Probate Code, the Penal Code, the Vehicle Code and many more. The majority of California laws, including those having to do with consumer protection (that is, credit cards, landlord/tenant, auto lemon laws, etc.) are found in the Civil Code (abbreviated CC). Other codes that you may want to refer to in preparing a Small Claims case are the Code of Civil Procedure (CCP), which includes the laws having to do with the operation of Small Claims Court (CCP Secs. 116.110-116.950); the Business and Professions Code (Bus. & Prof. Code), which includes rules regarding the collection of professional fees and contractor's license regulations; the Vehicle Code, which contains the rules of the road; and the Commercial Code (Com. Code), which contains information about warranties. To locate a particular law, first locate the correct code and then look up the number. If you do not know if a particular area of conduct is regulated by law, or suspect that a law exists but don't know which code it is in or its number, refer to the master code index, which lists all California laws by subject. In this way you can locate the correct code and number for the law you need.
You can get access to California codes at any large public library or county law library, which are located in main county courthouses (and in some branch courthouses) and are open to the public. You can also gain access to them online by going to Nolo's Self-Help Law Center (www.nolo.com). Once at Nolo's home page, click on the FindLaw box and follow instructions to find California's laws. Small Claims rules are covered in California Code of Civil Procedure (CCP) §§ 116.110-116.950.
Ordinances are passed by cities and counties and have the force of law in that municipality. Among other things, ordinances often include zoning rules, building codes, leash laws, parking restrictions, view and tree-cutting rules and often minor vehicle violations. Usually, you can get copies of local ordinances from city or county offices, and collected sets are commonly available at the public library. In addition, many more populous cities and counties now have their ordinances available online. An easy way to see if yours are available electronically is to go to one of the sites which provide access to local laws. I recommend that you try either http://www.localgov.org/ or http://www.piperinfo.com/state/.
If you do your research at a law library, you will have an opportunity to look up California laws in the annotated codes (published by both West and Matthew Bender). In addition to the basic laws, these codes also list relevant court decisions (called "cases") interpreting each law. If you find a case that seems to cover your fact situation, you will want to read it and, if it still seems relevant (and supports your interpretation of the law), point it out to the judge as part of your Small Claims presentation. If you are confused about how to find and understand a particular case, ask the law librarian for help.For a more thorough exploration of how to use the law library, see one or more of the following resources, which are available at bookstores and most libraries:
|Chapter 1||In the Beginning|
|B.||Checklist of Things to Think About Before Initiating or Defending Your Case||3|
|C.||Legal Jargon Defined||6|
|Chapter 2||Do You Have a Good Case?|
|A.||Stating Your Claim on Your Court Papers||1|
|B.||But is My Case Really any Good?||3|
|C.||How to Approach a Breach of Contract Case||6|
|D.||How to Approach a Case Where Your Property has Been Damaged by the Negligent or Intentional Acts of Someone Else||12|
|E.||How to Approach a Personal Injury (and Mental Distress) Case||15|
|F.||How to Approach a Case When You are Injured by a Defective Product (Doctrine of Strict Liability)||18|
|G.||How to Approach a Breach of Warranty Case||18|
|H.||How to Approach a Case When Your Rights Under California Law Have Been Breached||21|
|J.||How to Prove a Nuisance Case||25|
|Chapter 3||Can You Recover If You Win?|
|Chapter 4||How Much Can You Sue For?|
|A.||Cutting Down a Claim to Fit Under the Limit||2|
|B.||Splitting Small Claims Court Cases||2|
|C.||How to Compute the Exact Amount of Your Claim||4|
|D.||Computing an Exact Amount--Malpractice Cases||16|
|E.||Equitable Relief (or, Money Can't Always Solve the Problem)||17|
|Chapter 5||Is the Suit Brought Within the Proper Time Limits (Statute of Limitations)?|
|A.||California Statute of Limitations Periods||2|
|B.||Computing the Statute of Limitations||3|
|C.||Defendant Should Tell the Judge if the Statute of Limitations has Run Out||6|
|Chapter 6||How to Settle Your Dispute|
|A.||Try to Talk Out Your Dispute||2|
|B.||Mediate Your Dispute||5|
|C.||Write a Formal "Demand" Letter||9|
|D.||Write Down the Terms of any Settlement||19|
|E.||Agreement Just Before Court||23|
|Chapter 7||Who Can Sue?|
|A.||Participation by Attorneys and Bill Collectors||5|
|B.||Suits by Prisoners||5|
|C.||Suits by Minors||6|
|D.||Special Rules for Military Personnel Transferred Out of State||6|
|E.||Class Actions (Group Lawsuits)||7|
|F.||Special Rules for Owners of Rental Property||8|
|Chapter 8||Who Can Be Sued?|
|A.||How to Sue One Person||2|
|B.||How to Sue Two or More People||2|
|C.||How to Sue an Individually Owned Business||3|
|D.||How to Sue a Partnership||4|
|E.||How to Sue a Corporation or Limited Liability Company (LLC)||4|
|F.||How to Sue on a Motor Vehicle Accident||5|
|G.||How to Sue Minors||6|
|H.||How to Sue Government Agencies||7|
|I.||How to Sue Contractors and Their Bonding Companies||8|
|J.||How to Sue the Estates of Deceased People||9|
|Chapter 9||Where Can You Sue?|
|A.||Where to Sue Out-of-State Defendants||1|
|B.||Where to Sue California Defendants||3|
|C.||What Happens If Suit is Filed in the Wrong California Small Claims Court||7|
|Chapter 10||Plaintiff's and Defendant's Filing Fees, Court Papers and Court Dates|
|A.||How Much Does It Cost?||1|
|B.||Filling Out Your Court Papers and Getting Your Court Date||2|
|C.||The Defendant's Forms||6|
|D.||Changing a Court Date||9|
|E.||If One Party Doesn't Show Up||11|
|Chapter 11||Serving Your Papers|
|A.||Who Must Be Served||2|
|B.||How to Serve Your Papers on an Individual||2|
|C.||How to Serve Papers on a Business||6|
|D.||How to Serve a Contractor or Anyone Else with a Surety Bond||8|
|E.||How to Serve a Public Agency||8|
|F.||Time Limits in Which the Plaintiff's Claim Must Be Served||8|
|G.||How to Notify the Court That Service has Been Accomplished ("Proof of Service")||9|
|H.||How and When to Serve a Defendant's Claim||11|
|I.||How to Serve Subpoenas||11|
|J.||How to Serve Someone in the Military--Declaration of Non-Military Service||12|
|K.||Costs of Personal Service||13|
|Chapter 12||The Defendant's Options|
|A.||Claim That You Weren't Properly Served with Court Papers||2|
|B.||Claim You Were Sued in the Wrong Small Claims Court||2|
|C.||You Have a Partial Defense--Try to Compromise||3|
|D.||You Want to Avoid Conflict--Try to Mediate||4|
|E.||You have Absolutely no Defense||5|
|F.||You Want to Pay the Plaintiff in Installments||5|
|H.||If You, Not the Plaintiff, Were Wronged--File a Claim of Defendant||8|
|Chapter 13||Getting Ready for Court|
|B.||Free Small Claims Advice||3|
|C.||Getting Help from a Private Lawyer||4|
|E.||Practice Your Court Presentation||5|
|F.||Getting to the Courthouse||5|
|H.||Understanding the Courtroom and Basic Procedure||6|
|I.||Dealing with Your Opponent||8|
|J.||Dealing with the Judge or Commissioner||9|
|K.||Organizing Your Testimony and Evidence||11|
|A.||Who Makes a Good Witness?||1|
|C.||Subpoenaing Police Officers||6|
|F.||Judges as Witnesses||12|
|G.||Testimony by Telephone||13|
|Chapter 15||Presenting Your Case to the Judge|
|A.||Uncontested Cases--Getting a Judgment by Default||1|
|C.||A Sample Contested Case||7|
|D.||Don't Forget to Ask for Your Costs||10|
|Chapter 16||Motor Vehicle Repair Cases|
|A.||Have You Suffered a Loss?||2|
|B.||Proving the Defendant's Negligence Caused Your Loss||3|
|Chapter 17||Motor Vehicle Purchase Cases|
|B.||Used Vehicle Dealers||5|
|C.||Used Vehicles from Private Parties||9|
|Chapter 18||Bad Debts: Initiating and Defending Cases in Which Money Is Owed|
|A.||Small Claims Court Is a Good Place to Sue on Bad Debts||1|
|B.||Bad Debt Cases from the Plaintiff's Point of View||2|
|C.||Debt Cases from the Debtor's Point of View||7|
|Chapter 19||Vehicle Accident Cases|
|A.||Who Can Sue Whom?||2|
|B.||Was there a Witness to the Accident?||3|
|C.||Police Accident Reports||3|
|H.||Your Demand Letter||6|
|I.||Appearing in Court||8|
|Chapter 20||Landlord-Tenant Cases|
|A.||Security Deposit Cases||2|
|B.||Unpaid Rent, Rent Withholding and Other Money Damage Cases||13|
|C.||Drug Dealing and Neighborhood Nuisances||18|
|E.||The Landlord's Right of Entry and the Tenant's Right of Privacy||22|
|Chapter 21||Miscellaneous Cases|
|A.||Clothing (Alteration and Cleaning)||1|
|C.||Damage to Real Property (Land, Buildings, Etc.)||5|
|D.||Police Brutality/False Arrest Cases||7|
|E.||Defamation (Including Libel and Slander)||8|
|Chapter 22||Disputes Between Small Businesses|
|A.||Remember: You Didn't Always Hate Your Opponent||2|
|B.||Organizing Your Case||3|
|C.||The Drama of the Distraught Designer||7|
|D.||Old Friends Fall Out||11|
|Chapter 23||Judgment and Appeal|
|C.||Paying the Judgment Directly to the Court||5|
|D.||The Satisfaction of Judgment||5|
|E.||Who Can Appeal||9|
|F.||Filing Your Request to Correct or Vacate Judgment||10|
|G.||Filing and Presenting Your Appeal||14|
|Chapter 24||Collecting Your Money|
|A.||The Timing of Collecting Your Money||1|
|B.||If Installment Payments Aren't Made||6|
|C.||Collecting a Judgment Against a Public Entity||9|
|D.||Finding the Debtor's Assets||10|
|E.||Levying on Wages, Bank Accounts, Business Assets, Real Property, Etc.||14|
|F.||Judgments Stemming from Auto Accidents||24|
|G.||Creating Property Liens||25|
|H.||Recovering Collection Costs and Interest||26|