Saturday, February 12, 2005

Using Small Claims Court, Part I

In this article, I will cover the basics of small claims court in California.

What is small claims court?

Small claims court is a special department of the Superior Court where disputes are resolved quickly and inexpensively. The rules are simple and informal. The person who sues is called the plaintiff. The person who is sued is called the defendant.

How much money can I sue for?

In most cases, you can sue for up to $2500. An individual plaintiff can file two claims per year of up to $7,500. Corporations and other entities (like, government entities) cannot ask for more than $5,000. If someone owes you or your company more than the small claims limite applicable to your case, you can still sue in small claims court if you agree to waive your claim to waive the amount above the limit.

How do I file a small claims lawsuit?

In most cases, you must fill our a form called a Plaintiff's Claim and pay a filing fee of $30-$75 depending on the amoun of the claim. The State of California offers a Self-Help Center where you can fill out the forms online before taking them to the nearest small claims court. The court clerk will give you the case number as well at the time and date of your trial. The trial is usually scheduled about 6 weeks after you file the lawsuit

How do I serve the lawsuit?

In most cases, you must serve the defendant at least 15 days before the trial date. Some people choose to have the clerk of the court serve the lawsuit via certified mail, but this is often the lease effective method of service because the defendant can refuse to sign for the notice.

Any person over the age of 18 may serve the lawsuit, except for the Plaintiff. A friend or relative may serve the lawsuit, but many people hire a registered process server or the Sheriff's Department to serve the lawsuit for a small fee. Click here for more information on the rules and regulations regarding the service of small claims lawsuits.

Can I have an attorney?

You may consult with an attorney to help you prepare your case, but you cannot have an attorney at trial. You can have an attorney represent you to collect the judgment or if there is an appeal after the trial.

What happens at the trial?

The most common types of small claims cases are car accidents, property damage, landlord/tenant rent deposit disputes and collection of money owed. You cannot bring an attorney to the trial, but you will need to bring evidence to support your claims or defenses. Common examples of evidence include:

  • Witnesses (the judge might not consider a notarized statement)
  • Photos
  • Bills
  • Receipts
  • Contracts
  • Any other proof you have

You must show all of your evidence to your opponent before the trial. If possible, you should bring your original documents plus two copies. You should give copies to your opponent, give the originals to the judge and keep copies for yourself to refer to during the trial. Placing the evidence in a binder with a timeline and a tabbed index is recommended as well.

You must be respectful to the judge and do not interrupt when your opponent is speaking. You should speak only to the judge, not your opponent. It most cases, the judge will send you written notice of the ruling instead of giving you the ruling at the hearing.

What is a "judge pro tem"?

Sometimes your case might be heard by a temporary judge (called a "judge pro tem" or "judge pro tempore"). A judge pro tem is an attorney who volunteers time on a regular basis to hear small claims cases. However, you can ask for a judge or commissioner to hear you case instead of a judgment pro tem. Chances are you will need to come back another day for the trial.

Can I appeal if I lose?

If the court enters a judgment against the defendant, the defendant has 30 days to appeal. The plaintiff can only appeal if the defendant files a counter claim and the court awards money to the defendant on the counter claim.

How long to I have to file my claim?

Most claims will have a Statute of Limitations. The length of time to file the lawsuit depends on the type of claim. Here are some common examples:

  • Personal injuries causes by negligence: two years after you were hurt or found out you were hurt
  • Breach of a verbal contract or agreement: 2 years to file after the agreement was broken
  • Breach of a written contract or agreement: 4 years to file after the agreement was broken
  • Property damage caused by negligence: 3 years to file after your property was damaged

If you are suing a government or public agency, you have 6 months to file a written demand with that agency. If the agency rejects your claim, you have 6 months to file a claim with a small claims court.

How do I collect my judgment?

There many methods to collect small claims judgments, including wage garnishments and bank account levies. Further information on the procedures for collecting small claims judgments will be covered in a future article.

The information provided in this article is general information only and is not intended as legal advice. DO NOT use this information as a substitute for obtaining qualified legal advice or other professional help.

The California State Bar offers a number of free consumer pamphlets, includes one entitled How Do I Use the Small Claims Court. Click here for information other other useful consumer topics.

About the Author: Carl H. Starrett II has been a licensed attorney since 1993 and is a member in good standing with the California State Bar and the San Diego County Bar Association. Mr. Starrett practices in the areas of bankruptcy, business litigation, construction, corporate planning and debt collection.

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