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Small Claims Litigation

HOW TO FILE A SMALL CLAIMS CASE WITH OR WITHOUT A LAWYER

Sooner or later you will find yourself in small claims court because you paid for a faulty product, delivered a product or service that you did not get paid for, or had a dispute with another business or a neighbor. Regardless of how the dispute occurs, someone will owe you money but will refuse to pay. If the dispute is over a large sum of money, you will typically need to file a regular lawsuit which tends to be complex, cumbersome, and expensive. However, there is a special division within each California court devoted entirely to resolving smaller disputes in a speedy, informal, and inexpensive manner – it is called the “small claims court”.

This article explains how to sue in small claims court, and the steps you need to take to maximize your chances of winning. Keep in mind that this article provides general guidance only, and is not a substitute for legal advice. There may be facts specific to your situation that must be addressed by a lawyer knowledgeable about small claims cases or a small claims legal advisor.

Who can sue in small claims court in California? Generally anyone who is at least 18 years old and mentally competent can sue in small claims court regardless of their citizenship. Suing in small claims court is called making a “claim.” The person making the claim in small claims court is called a “plaintiff,” and the person against whom the claim is made is called a “defendant.

How much money can I get? As an individual plaintiff, you can make a claim for up to $7,500 or $10,000 (depending on the type of claim), and as a business plaintiff (partnership, limited liability company, or corporation) you can make a claim for up to $5,000. If you are owed more than that, you can still sue in small claims court as long as you reduce your claim to the maximum allowed. There are some limits designed to prevent abuse of the small claims court system. You can file as many claims as you want for up to $2,500 each, but you cannot file more than 2 claims per calendar year for more than $2,500. The limitation is applied only if the same person or legal entity is making multiple claims within the same calendar year.

How do I file a small claims action? If you decide that you want to go ahead with your small claims action, you need to complete all of the steps described below.

Make a demand for payment: You must demand payment from the other person, and that person must refuse to pay or ignore you. It is best that this demand be a letter that states how much money is owed, why the money is owed, and that you will go to court if the money is not paid by a certain date. If you are a business attempting to collect debts from consumers, you need to consult a lawyer to make sure that you are obeying special state and federal laws protecting the consumer.

Decide the proper small claims court in which to sue: You need to make sure that you choose the right small claims court to sue the defendant. You may be able to sue where the dispute took place, where the person you are suing lives, where the firm you are suing does business, or where the contract you made was supposed to be performed. If there is more than one proper place to sue, you can choose the court that is most convenient for you.

Determine the full name and address of the defendant: You also need to make sure that you know the defendant’s full legal name and address. Information about businesses registered to do business in California can be found on the website for the California Secretary of State at www.sos.ca.gov. Each county also keeps track of businesses in the county through its local fictitious business name registry. If the business is registered as a corporation or a limited liability company with the Secretary of State, it should be sued under its full and correct legal name. If the business is not registered it means that it is a partnership or a sole proprietorship, and the actual owners of the business need to be sued under their names with a “d.b.a.” (short for “doing business as”) notation that states the name of the business. For example “John Smith and Jane Doe d.b.a. ABC Flower Shop.” If you put an incorrect name for the defendant on your small claims complaint, the case may be dismissed or you may have trouble collecting from the defendant.

Determine how much you are owed and why: You need to know exactly how much money you are claiming, the reason why you are claiming the money, and the date and place where the dispute started.

Obtain the proper form and complete it: You need to obtain Plaintiff Claim and ORDER to Go to Small Claims Court form SC-100 from the court or on line at www.courtinfo.ca.gov (this website also contains the other forms mentioned in this article). Fill the form out completely and sign it.

File the Plaintiff’s Claim: You need to bring an original and one or more copies of Plaintiff’s Claim form to the proper courthouse and file it with the clerk. Make sure that the clerk gives you back a stamped copy of the Plaintiff’s Claim you just filed because the defendant will need to receive a stamped copy of this form (see next step). When you are filing the form, the clerk will ask you to pay a fee which can generally range between $30 to $100 depending on the amount of your claim, and on the number of small claims actions you filed in the past. The court where you filed the small court claim will set a date when the case will be decided – this is called the “hearing date.” The hearing date can be between 20 and 70 days after you file your claim. As a plaintiff, if you are doing business under a fictitious name, and the claim arises out of the operation of the business, you must also file Fictitious Business Name form SC-103 with the court stating that you have complied with the fictitious business requirements of your county.

Serve defendant with the Plaintiff’s Claim: You need to notify each defendant about your claim by “serving” him or her with a copy of the stamped Plaintiff’s Claim that you filed with the court. There are a number of ways to serve a defendant, but to make sure that the service is done properly it is best to hire a professional “process server” to do this for you. Service must be done fairly quickly after you file your claim. If the defendant lives in the county where your claim is filed, you must serve him at least 15 days before the hearing date. You should ask the server to complete and sign Proof of Service form SC-104 for each defendant. The completed and signed Proof of Service form must be filed with the court at least 5 days before the hearing.

Defendant can file a counterclaim against you: After defendant is served with your claim, he or she may file a claim against you. This is called a “counterclaim” because it is a claim made by the defendant in response to a claim by the plaintiff. A defendant’s counterclaim is also limited to the maximum claim amounts allowed in small claims court. This means that in addition to defending against your claim, the defendant may also sue you for a dispute relating to your claim, or to any other dispute between you. Your claim and the defendant’s counterclaim will be resolved together at the hearing.

How do I prepare for the small claims hearing in California? The court will set a date and time for the small claims hearing. The hearing will be your opportunity to prove to the judge that you are owed money by the defendant, and, if there is a counterclaim, to prove that you do not owe any money to the defendant.

Collect documents: The best way to prepare for the hearing is to collect all of the physical evidence in your possession – letters, contract, emails, pictures and any other relevant documents to support your case. In small claims cases there is no opportunity to discover what documents and witness the other side will bring with them, until the actual hearing.

Talk to witnesses: You will also need to decide whether there are any favorable witnesses who are willing to testify for you at the hearing. Generally only witness who heard conversations or saw the events you are complaining about will be helpful to your case. You may be able to force a witness, other than the defendant, to come to the hearing by serving them before the hearing with a special court order called a “subpoena.” However if a witness is unwilling to help you voluntarily, forcing them to come to small claims court with a subpoena may cause them to say things damaging to your case.

Prepare in advance what you will say and show to the judge: Your hearing may last as little as 10 to 20 minutes, and plaintiffs often lose cases because they are unable to explain their story to the judge in a calm and organized way, or do not support their story with documents. You need to carefully plan what you are going to say, and what documents you will show to the judge. Most people prefer to write down some bullet points, and rehearse what they will say in front of others. Make at least one extra copy of all important documents and bring the copies and originals with you. Think of what the other person will say, and how you will answer. Remember, it is your job to prove your case to the judge, so come to court prepared.

Consider meeting with a lawyer: Even though you cannot be represented by a lawyer in your initial small claims hearing, it is generally a good idea to meet with a lawyer prior to the hearing, because he or she will be able to help you focus on the legal theories and evidence that is crucial to the case.

What do I need to do at the small claims hearing to maximize my chances of winning? You prepared carefully for the hearing beforehand, and brought relevant evidence and witnesses with you. Now you must know how to behave in court to make sure that the judge understands your evidence and likes you.

Come early and prepared: At least half of the battle is proper preparation. Be at the courthouse at least 30 minutes early. That way if you get delayed you will still make the hearing, and if you are on time you will have time to collect your thoughts and go over your argument. Bring all of your documents and witnesses with you.

Be ready to explain your case: The judge may let you talk freely, ask you questions, or periodically interrupt your story with questions. The hearing is informal which means that, even though you will be in court in front of the judge, you will only need to explain and prove the facts. You do not need to know evidence rules or legal theories. It is normal to be nervous in court, and the judge will expect you to be nervous. Take a few deep breaths and try to relax. If you are able to talk freely, tell the judge why you are in court, explain what the defendant did to you, why it was his fault and not yours, and how much money you are owed. If the judge asks you questions, listen carefully and answer them fully. Give the judge copies of all documents that support your case.

Be respectful towards the judge and the defendant: Do not get discouraged if the judge is unfriendly or asks you tough questions. This is normal because judges tend to be stern and tough on both sides. Be polite to your opponent and do not interrupt your opponent or their witnesses while they are explaining their side of the story to the judge. It is fine to correct the judge if they get a fact wrong or misunderstand something you said, but you must be very respectful. If the judge starts talking, you must stop talking immediately and listen. Remember the judge has never met you, and will be watching carefully how you behave in court to see if you are a reasonable, civilized, and trustworthy person. Be on your best behavior, no matter how angry you are at the defendant.

Some facts may be important to you but have nothing to do with the claim: Sometimes you may tell facts to the judge, and he or she may interrupt you telling you that the facts you are trying to explain are not relevant to the case. If you disagree and believe that the fact are relevant, politely tell the judge why the facts you are bringing up are important, and ask the judge to give you a few minutes to explain them. Oftentimes, you will have negative information about the defendant, which you may want to tell to the judge but which is not important to the case. Consulting an attorney may help you determine which of the facts may be relevant and the best way to present them to the judge.

Do not expect a decision right away: The judge may make a decision in court after hearing all of the evidence or may mail the decision to your home. Most likely, the clerk helping the judge will mail to you a Notice of Entry of Judgment informing you of the judge’s decision after you leave court.

What to do if I am unhappy with the judge’s decision? You cannot appeal the judge’s decision if he or she denies your claim or awards you less than the amount of money you were asking for. You can appeal only if you are ordered to pay money or to do something. This will only happen if you are a defendant who loses on a claim filed by the plaintiff or a plaintiff who loses on a counterclaim filed by the defendant. To appeal, you will need to file Notice of Appeal (Small Claims) form SC-140 in court within 30 days from the date the court clerk mails to you the Notice of Entry of Judgment. It costs about $90 to file an appeal, but the fees change from time to time. The court will mail the Notice of Appeal to the other party and set a new hearing date. There will be a new judge hearing the case on appeal who will not take into consideration the decision in the original case. The new hearing will be similar to the first one, except that you will be able to bring a lawyer to represent you in the small claims hearing, and you may have more time to present your case.

Do I need to hire a lawyer to fight my small claims case? Even though the small claims process is simpler than ordinary court proceedings, it is still a fairly complicated and often intimidating process.  In theory, you are supposed to provide the small claims judge with facts and documents at the hearing, and the small claims judge is supposed to weight the evidence and apply the law.

However, it often helps to educate the judge about the law especially if the matter is unusual or complicated. While this general article may be a helpful guide, it cannot serve as substitute for legal advice tailored specifically to your situation. If you are suing as a business in small claims court, there may be state and federal laws that apply to you.   Free small claims advisors are available to help with your small claims questions, and you can obtain their contact information by calling or visiting the website of your local courthouse.   These advisors can be very helpful in guiding you through the different steps required to file your claim. However, they tend to be very busy and may not have time to get into the facts and law of your case.  Hiring a lawyer for even a couple of hours to review and advise you about how to organize and present your facts in small claims court is likely to increase your chances of winning because it will make your small claims case more understandable to the judge.

San Francisco based attorney Martin Zurada serves the entire California Bay Area and has assisted numerous individuals in preparing for small claims court and appealing small claim judgments. He can be reached at (415) 637-8483 to answer your specific questions.

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