STATE OF CALIFORNIA • DEPARTMENT OF CONSUMER AFFAIRS

Arnold SchwarzeneggerGOVERNOR

STATE OF CALIFORNIA

Fred Aguiar Secretary

State and Consumer Services Agency

USING THESMALL CLAIMS COURT

the dos and don’ts of

Charlene ZettelDirector

Department of Consumer Affairs

USING THESMALL CLAIMS COURT

the dos and don’ts of

California Department of Consumer Affairs

Dear Consumer:

The California Department of Consumer Affairs regulates more than 2.3 millionpractitioners in more than 230 professions in order to ensure fair marketplacepractices and the protection of California consumers.

We know, however, that sometimes disputes occur. When that happens, we encourageconsumers to contact the business directly to discuss a resolution. If a consumer andbusiness are not able to resolve their differences, the Department of Consumer Affairsoffers various consumer complaint mediation programs to provide additionalassistance. Information about Department programs is available at www.dca.ca.gov,or you can call (800) 952-5210. In most cases, disputes can be settled in an equitableand timely way.

When consumers are not able to work out a solution with a business, Small ClaimsCourt is an effective, fair option.

We hope you find this guide to using the Small Claims Court helpful.

the

dos

and

don’

ts o

f U

SIN

G T

HE

SMAL

L CL

AIM

S CO

UR

T

2

Table of ContentsPage

Introduction ..............................................................................................................................4

Basic Considerations and Questions

What Is Small Claims Court? .............................................................................................................5

Is Small Claims Court Your Best Option?...........................................................................................5

Have You Tried to Settle the Dispute Yourself? ..................................................................................6

Have You Considered Mediation?......................................................................................................6

Where Can You Obtain More Information and Advice? .....................................................................6

Who Can File or Defend a Claim? ......................................................................................................7

Can Someone Else Represent You? ...................................................................................................7

Can Your Spouse Represent You? .....................................................................................................8

If You’re the Plaintiff… Filing Your Lawsuit

Have You Asked for the Money or the Property? ...............................................................................9

How Much Money Does Your Dispute Involve? .................................................................................9

Where Do You File Your Case? ..........................................................................................................9

How Quickly Must You File Your Case? ...........................................................................................10

What Forms Do You File With the Court? ........................................................................................11

How Do You Name the Defendant? .................................................................................................12

How Do You Notify the Defendant? .................................................................................................13

Locating the Other Party

Directories .....................................................................................................................................15

County Assessor’s Office .................................................................................................................15

Change of Address ..........................................................................................................................15

Obtaining Post Office Box Records .................................................................................................15

Locating Sole Proprietorships and Partnerships .............................................................................16

Locating Partnerships and Limited Liability Entities ........................................................................16

Locating a Business Through the City Clerk’s Office ........................................................................16

Determining a Corporation’s Directors and Agents for Service of Process ......................................16

Department of Motor Vehicles Records ..........................................................................................16

The Internet ...................................................................................................................................16

Cover:Placer County CourthouseAuburn, California

3www.dca.ca.gov

Table of ContentsIf You’re the Defendant… Responding to the Lawsuit

What Should You Do After You Receive an Order to Appear? ..........................................................17

What If You Owe the Claim? ............................................................................................................17

What If You Can’t Resolve the Dispute Informally? ..........................................................................18

What If You Can’t Attend the Hearing? .............................................................................................18

What If Service of Process Is Improper? .........................................................................................19

What If the Plaintiff Has Filed in a Wrong Court? .............................................................................19

What If the Plaintiff Owes You Money? ............................................................................................20

Plaintiffs and Defendants… Making the Best of Your Day in Court

Resolving Your Dispute Before the Hearing ....................................................................................21

Gathering Your Documents ............................................................................................................22

Arranging for Witnesses .................................................................................................................22

Hearings Before Temporary Judges ................................................................................................23

Presenting Your Case or Defense ....................................................................................................23

Asking for Your Court Costs ............................................................................................................25

Plaintiffs and Defendants… The Judgment

Receiving the Judge’s Decision .......................................................................................................26

Judgment Against a Non-Appearing Party ........................................................................................26

Setting Aside the Judgment .............................................................................................................27

Having the Judgment Reviewed.......................................................................................................27

The New Hearing ............................................................................................................................28

After the Judgment… Collecting or Satisfying the Judgment

Options for Judgment Debtors ........................................................................................................29

Ways for Judgment Creditors to Collect the Judgment Debt .............................................................30

Prohibited Debt Collection Practices ..............................................................................................31

Once the Judgment Is Paid .............................................................................................................31

Glossary of Terms ..................................................................................................................32

Small Claims Court Checklist ...........................................................................................35

Ordering Information for Consumer Law Sourcebook ..........................................36

Page

the

dos

and

don’

ts o

f U

SIN

G T

HE

SMAL

L CL

AIM

S CO

UR

T

4

Many disputes that you haven’t been able to resolve by other means can be decided in smallclaims court. Some people think that going to court is difficult or frightening, but it doesn’tneed to be.

This handbook is designed to help anyone who is suing or being sued in small claims court, orwho is deciding whether or not to file a small claims court case. This handbook answers thequestions people frequently ask, and it describes the procedures used in most small claimscourts.

Your case may be unique, or your local court may have procedures that are a bit different fromthose described in this guide. Therefore, check with the small claims court clerk or your localsmall claims advisor before you file your claim. Get advice as soon as possible, so that you’ll bewell prepared at your small claims hearing.

Small claims clerks can answer many kinds of questions and provide the forms you need.However, the law prohibits them from giving legal advice. Most counties provide small claimsadvisors, who can:

♦ Explain small claims procedures

♦ Help you prepare your claim or defense

♦ Tell you how to enforce your judgment

♦ Help you arrange for payment by installments

♦ Answer many other kinds of questions

Small claims advisors can help both plaintiffs and defendants. Their assistance is provided at nocharge.

Throughout this handbook, legal terms and the names of forms are printed in bold italicsand are included in the Glossary on pages 32–34.

AcknowledgmentsDepartment of Consumer Affairs

Legal Affairs Division

Doreathea Johnson

Deputy Director

Richard A. Elbrecht

Supervising Attorney

Communications & Education Division

Mike LueryDeputy Director

Rick Lopes Angelica AnguianoEditing Graphic Design

Publishing InformationThis publication may be copied, if:

1. The meaning of copied text isn’t changed ormisrepresented.

2. Credit is given to the Department of Consumer Affairs.

3. All copies are distributed free of charge.

In other situations, express written authorization is required.

Visit the DCA Web site at www.dca.ca.gov for more consumer

information.

© 2002 California Department of Consumer Affairs

Introduction

Albert Y. BalingitStaff Counsel

5www.dca.ca.gov

Basic Considerations and Questions♦ Your tenant caused damage to the apartment in

an amount that exceeded the security deposit(Note: You can’t file an eviction action in smallclaims court.)

♦ You lent money to a friend, and he or sherefuses to repay it

You don’t need to be a United States citizen to file ordefend a case in small claims court. If you don’tspeak English and will have difficulty presentingyour case in court, ask the court clerk about havingan interpreter attend the hearing with you. If youcan’t afford an interpreter, ask if one can beprovided by the court. The interpreter can’t be anattorney and can’t represent you. If the courtdoesn’t provide interpreters, you should bringsomeone who speaks English and ask the court toallow that person to be your interpreter.

In most small claims courts, cases are heard within30–40 days after filing of the plaintiff’s claim.However, cases against defendants who live outsidethe county are heard within 60–70 days after thefiling of the plaintiff’s claim. Most cases are heardon weekdays, but some courts also have eveningand Saturday sessions.

Is Small Claims Court Your Best Option?Before filing a small claims case, it’s important todecide whether small claims court is the best placeto resolve your dispute. Many disputes can beresolved by using other dispute resolution methods,such as mediation. Many counties help resolvedisputes informally through their local consumeraffairs offices or through local public or privatedispute resolution programs.

You need to consider whether the defendant islegally responsible for the claim. Is the law on yourside? If there is a law that applies to your case, thesmall claims judge will follow that law, interpretingit in a spirit of reasonableness and fairness to bothparties. If the law isn’t on your side, but you feelthat justice is on your side, you may get morefavorable results through voluntary mediation.

If you decide to file a small claims court case, beprepared to devote some time and effort to it. This

What Is Small Claims Court?The small claims court is a special court in whichdisputes are resolved inexpensively and quickly.The rules are simple. The hearing is informal.Attorneys are not allowed. The person who filesthe lawsuit is the plaintiff, and the person beingsued is the defendant.

The claims are limited to disputes up to $5,000.However, a claimant can’t file more than two smallclaims court actions for more than $2,500anywhere in this state during any calendar year.For example, if you file a claim for $3,000 inFebruary of 2002, and another claim for $4,000in March of 2002, you can’t file another claim formore than $2,500 in any small claims court untilJanuary 1, 2003. However, you can still file asmany claims as you wish for $2,500 or less.

The filing fee is only $20. It is paid by the plaintiffto the clerk of the small claims court. (Multiplefilers — claimants who have filed 13 or moreclaims within the previous 12 months — pay $35per claim.)

Since the limits on the claim and the filing fees aresubject to change by legislative action, you shouldcheck with your local court or small claimsadvisor or small claims clerk to determine thecorrect filing fees and the current limits onclaims.

Small claims courts can order a defendant to dosomething, as long as a claim for money is alsopart of the suit. The court can cancel a contract.The court can order your neighbor to pay you foryour lawn mower or to return it promptly.

Examples of other disputes that might be resolvedin small claims court are:

♦ Your former landlord refuses to return thesecurity deposit you paid

♦ Someone dents your fender and refuses to payfor repairs

♦ Your new TV will not work, and the storerefuses to fix it

the

dos

and

don’

ts o

f U

SIN

G T

HE

SMAL

L CL

AIM

S CO

UR

T

6

includes preparing for the hearing, gatheringevidence, meeting with witnesses, and attendingthe hearing in person.

You also may need to take action and spend moneyto enforce any judgment. While a small claimscourt judgment carries legal weight, it may bedifficult or even impossible to enforce. Collecting acourt judgment is one of the most challenging andfrustrating aspects of any lawsuit. The person who isobligated to pay the judgment may not have themoney to pay or may simply refuse to pay. Enforce-ment procedures are available, but these requireextra effort and money on your part.

In deciding whether to file a small claims case,remember that you can’t appeal. By choosing thesmall claims court to resolve the dispute, a plaintiffgives up the right to have another court review thesmall claims judge’s decision. So if you should lose,that’s probably the end of the case for you. How-ever, the person or entity you sue (the defendant)may appeal the judge’s ruling to the superior court,where the entire case will be heard again.

Have You Tried to Settle the DisputeYourself?Have you and the defendant tried to resolve thedispute on a friendly basis? If you haven’t done sobefore filing suit, why not try? At the very least, youshould ask the defendant for the legal remedy thatyou hope the judge will award you before you fileyour small claims court case.

Are you able to give the other person some addedincentive to perform? If he or she owes you money,you might consider offering to accept less than thefull amount, if it is paid now. If you owe money, itmay be worth paying a bit more than you feel youowe, just to end the dispute. If the dispute goes to acourt hearing and results in a judgment against you,the amount that you owe may be increased bycourt costs and interest, and the judgment will benoted in your credit record.

If there’s no dispute about the amount you owe, butyou simply can’t pay the entire debt at one time,consider offering to make monthly or weeklypayments until the debt is paid. (Even after thecase is decided, the judge can authorize you to pay

the judgment by weekly or monthly installmentpayments.)

Have You Considered Mediation?Mediation is a procedure for resolving disputesinformally: a third party — a mediator — helpsthe parties arrive at their own solution. Unlike ajudge, a mediator doesn’t issue a decision. Thebest quality of the mediation process is that itattempts to restore the relationship between theparties. While only some disputes can be resolvedby mediation (since both parties must agree to theresults), consider whether your dispute can beresolved that way. Disputes involving neighbors andfamily members are particularly well suited formediation because of the relationships betweenthe parties.

If you decide that mediation (rather than smallclaims court) might resolve the dispute, ask theclerk if the small claims court offers a mediationprogram. If not, the clerk may know of a publiclyfunded program in your county. You can also locatea mediation program by looking in the businesssection of your telephone directory, or by callingthe Consumer Information Center of theCalifornia Department of Consumer Affairs at(800) 952-5210 outside the Sacramento area, or(916) 445-1254 in the Sacramento area. Hearing-impaired persons may call TDD (800) 326-2297or, in the Sacramento area, TDD 322-1700.

Where Can You Obtain MoreInformation and Advice?♦ Small Claims Advisor — A small claims

advisor gives free advice to small claimsdisputants. The law requires each county toprovide a small claims advisory service. Someadvisors are available only by phone, whileothers may be visited in an office setting. Someadvisory services provide recorded advice byphone. All small claims advisors provideinformation regarding the procedural rules, andsome will also assist you in preparing your case.To locate your local advisor, contact the localsmall claims clerk or look in your telephonedirectory.

7www.dca.ca.gov

♦ Publications — Small claims court proce-dural rules and basic consumer laws aresummarized in a publication entitledConsumer LawSourcebook for SmallClaims Court JudicialOfficers. While the three-volume Sourcebook iswritten for judges andsmall claims advisors,some disputants find ituseful. Most county lawlibraries make reference copies available to thepublic. Your county law library may also havebooks on the subject of your claim.

♦ Internet — The Internet offers many sourcesof information. If you don’t have access to theInternet at home, visit your public library. TheDepartment of Consumer Affairs offers a varietyof fact sheets and information on landlord-tenant issues, auto repairs, contractor hiring,and the professions and occupations regulatedby the department: www.dca.ca.gov. TheJudicial Council offers advice on the smallclaims process, and downloaded court forms:www.courtinfo.ca.gov. The Consumer Informa-tion Center of the U.S.. General Services Admin-istration: www.pueblo.gsa.gov. ConsumerReports offers links to numerous other Websites: www.consumerreports.org.

♦ Attorneys — An attorney may be able to adviseand assist you in a complex case. You shouldconsult an attorney if you feel it would be cost-effective to do so, considering the size of theclaim and the kinds of issues involved. Theattorney should be familiar with the ConsumerLaw Sourcebook for Small Claims CourtJudicial Officers. You can’t have the attorneyrepresent you in court. Except in rare instances,attorney consultation fees and fees charged forother private assistance will not be recovered ascosts.

Who Can File or Defend a Claim?With certain exceptions, anyone can sue or be suedin small claims court. Generally, all parties mustrepresent themselves. A person or an entity (for

example, a corporation) that files a small claimsaction is called the plaintiff. The party who is suedis called the defendant.

An individual can sue another individual or abusiness, but may not file a claim against a federalagency. Businesses, in turn, can sue individuals orother businesses. However, an assignee (a personor business that sues on behalf of another, such asa collection agency) can’t sue in small claimscourt.

In order to file or defend a case in small claimscourt, you must be at least 18 years old and bementally competent. Persons who are under 18 orwho have been declared mentally incompetent by acourt must be represented by a guardian adlitem. For a minor, the representative is ordinarilyone of his or her parents. The court clerk or smallclaims advisor can explain how to have a guardianad litem appointed.

If the court determines that a party can’t properlypresent his or her claim or defense and needsassistance, the court may allow another individualto assist that party. The individual must provideassistance only — the individual’s actions must notconstitute representation.

Can Someone Else Represent You?In most situations, parties to a small claims actionmust represent themselves. As a general rule,attorneys or non-attorney representatives (such ascollection agencies or insurance companies) maynot act as representatives. Self-representation isusually required. There are, however, severalexceptions to this general rule:

♦ Corporation or other legal entity — Acorporation or other legal entity (but not anatural person) can be represented by a regularemployee, an officer, or a director, and apartnership can be represented by a regularemployee or a partner, but these representativesmay not be attorneys or others whose only job isto represent the party in small claims court.

♦ Property agent — A property agent mayrepresent the owner of rental property if theproperty agent was hired principally to managethe rental of that property and not principally to

Basic Considerations and Questions

the

dos

and

don’

ts o

f U

SIN

G T

HE

SMAL

L CL

AIM

S CO

UR

T

8

represent the property owner in small claimscourt and the claim relates to the rental prop-erty. At the hearing, the agent should tell thejudge that he or she was hired principally tomanage the property, or this statement may be ina written declaration.

♦ Sole proprietorship — A sole proprietorship(such as a physician) can be represented by anemployee, officer, or director if the claim can beproved or disputed by evidence of an accountand there is no other issue of fact in the case. Ifboth of these requirements are met, theclaimant’s representative must be able to testifythat (1) the evidence of the account was madein the regular course of business, (2) theevidence of the account was made at or near thetime of the transaction, and (3) the sources ofthe information about the account and its timeand method of preparation are such as toindicate their trustworthiness.

For example, this exception to the general ruleof self-representation might permit a dentist’sbookkeeper to represent the dentist in an actionto collect a patient’s account. However, if thepatient alleged that the dentist’s services wereunnecessary or performed poorly, the casewould involve another issue of fact, and thedentist would need to appear at the hearing inperson.

In the following kinds of situations, a party need notappear in court, and may either send a representa-tive or submit written declarations to prove his orher claim or defense. However, the representativecan’t be compensated, and is disqualified if he orshe has appeared in small claims actions on behalfof others four or more times during the calendaryear.

♦ Nonresident real property owner — Anonresident owner of real property located inCalifornia may defend a small claims caserelated to the property by submitting a declara-tion or sending a representative.

♦ Military service — A person who is on activeduty in the military service, or who is transferredout of California for more than six months afterthe claim arose, can be represented by a non-attorney, and can submit written declarations in

support of his or her claim or defense. Forexample, a tenant who is on active duty and whois transferred out of state for more than sixmonths, can ask a qualified person to file asmall claims action on behalf of the tenant andrepresent the tenant at the hearing against thelandlord to recover the security deposit.

♦ Jail or prison — A person who is in jail orprison may be represented by someone elsewho isn’t an attorney, and may file writtendeclarations in support of his or her claimor defense.

An individual who represents a party to a smallclaims court action must sign a written declaration— a form provided by the clerk of the small claimscourt. The declaration must state that the individualsigning it is actually authorized to represent theparty, and it also must describe the basis for thatauthorization, such as a letter from the representedparty. If the represented party is a corporation orother legal entity or an owner of real property, thedeclaration also must state that the representativeisn’t employed solely to represent the corporationor entity in small claims court. In the other situa-tions listed above, the declaration must state thatthe representative is acting without compensation,and hasn’t appeared as a representative in smallclaims actions more than four times during thecalendar year.

Can Your Spouse Represent You?Spouses may represent each other in small claimscourt if they have a joint interest in the claim ordefense and the represented spouse has given hisor her consent. However, one spouse may notrepresent the other if the court decides that justicewould not be served — such as where theirinterests are not the same and may conflict. Therepresented spouse need not come to court if thejudge allows representation.

9www.dca.ca.gov

dated court (the superior court) and eitherrepresent yourself or hire an attorney to representyou. Or you may choose to reduce the amount ofyour claim and waive the rest in order to staywithin the small claims court’s upper limit onclaims for damages. Before reducing your claim,talk to a small claims advisor or an attorney. Oncethe dispute is heard and decided by the smallclaims court, your right to collect the amount thatyou waived is lost forever.

It’s always wise to ask for the amount that you canprove, because if the defendant doesn’t appear,your judgment will be limited to the claim you canprove.

If the case is against a guarantor — someonewhose legal responsibility is based on the acts oromissions of another — the maximum claim is$2,500. However, the maximum claim against aguarantor is $4,000 if the guarantor charges a feefor its guarantor or surety services, or if thedefendant guarantor is the Registrar of the Contrac-tors State License Board because you are suing on acontractor’s bond. In that situation, be sure toname both the contractor and the guarantor asdefendants, and prepare to prove a violation of thecontractors licensing laws. (See Business andProfessions Code beginning with section 7101 andthe Web site of the Contractors State License Board:www.cslb.ca.gov).

Where Do You File Your Case?It’s important to file your case in a court in theappropriate county. In legal terms, you must file ina proper venue (place). As a general rule, a casemust be filed in the county where the defendantresides. This general rule promotes fairness, sinceit’s usually easier for a defendant to defend a case ifit’s filed where he or she resides.

When you file your case, you must state on thePlaintiff’s Claim and Order to Defendantform why the court where you filed your claim is

Have You Asked for the Money or theProperty?Before you can sue in small claims court, you mustfirst contact the defendant (or defendants) if it’spractical to do so and ask for the money, property,or other relief that you intend to ask the judge toaward you in court. In legal terms, you must makea “demand” on the other person, if possible. Yourrequest may be oral or in writing, but it’s a goodidea to do it both ways. Always keep copies of anyletters and other written communication. It’s wiseto send written communication by mail and ask thepost office for a return receipt that you can keep asevidence.

How Much Money Does Your DisputeInvolve?Think carefully about how much money — calleddamages — to request. The judge will ask you toprove that you’re entitled to the amount that youclaim. You can receive a judgment only for anamount you can prove. You can prove your claimby using written contracts, warranties, receipts,canceled checks, letters, professional estimates ofdamage, photographs, drawings, your own state-ments, and the testimony of witnesses.

Small claims courts have an upper limit — called ajurisdictional limit — on the amount ofmoney that a person can claim. The most you canclaim is $5,000, and you can’t divide a claim intotwo or more claims (claim splitting) in order tofall within the jurisdictional limit. A claimant can’tfile more than two small claims court actions formore than $2,500 anywhere in the state during anycalendar year. If your claim exceeds $2,500, you’llbe asked to check the box on the Plaintiff’sClaim and Order to Defendant form thatstates that you have filed no more than two actionsfor more than $2,500.

If your claim is over the small claims limit, you mayfile a case in the municipal court or in a consoli-

If You’re the Plaintiff…Filing Your Lawsuit

the

dos

and

don’

ts o

f U

SIN

G T

HE

SMAL

L CL

AIM

S CO

UR

T

10

the proper court. In cases against defendants wholive outside the county, the judge must alwaysinquire and determine if the court is a proper courtfor that case. If the judge finds that the case wasn’tfiled in a proper court — in legal terms, that venueisn’t proper — the judge must dismiss the casewithout prejudice unless all defendants arepresent and agree that the case may be heard.

The following are some exceptions to the generalrule that a case must be filed and heard in thecounty where the defendant resides:

♦ Automobile accidents — The claim may beheard in the appropriate county where theaccident occurred or where the defendantresides.

♦ Contract — The claim may be heard in thecounty where the contract was entered into,where the contract was to be performed by thedefendant, or where the plaintiff is entitled toreceive payment, unless the claim arises from aconsumer purchase.

♦ Consumer purchase (claim by seller) — Aclaim to enforce a debt arising from a consumerpurchase can be filed only in the county (1)where the consumer signed the contract, (2)where the consumer resided when the contractwas signed, (3) where the consumer residedwhen the action was filed, or (4) where thegoods purchased on installment credit areinstalled or permanently kept.

♦ Consumer purchase (claim by buyer) —An action also can be filed in localities (1), (2),or (3) immediately above by the consumeragainst a business firm that provided theconsumer goods, consumer services, or con-sumer credit. Suit also can be filed by theconsumer in any of those locations if the suit isbased on a purchase that results from anunsolicited telephone call made by the seller tothe buyer (including a situation where a buyerresponds by a telephone call or electronictransmission).

The exceptions to the general rule that requiresfiling the case in the county where the defendantresides are complex and difficult to understand. Ifyou intend to file a claim against a defendant out-

side the county where the defendant resides, youshould consult with your local small claims advisorto determine if your case falls within an exceptionto the general rule.

If there is more than one county where your claimcan be properly filed, you may be able to select thelocation that is most convenient for your witnesses.If you file in a county in which the defendantdoesn’t reside, you must give the defendant alonger period of time for responding to your noticeof the claim, and it will take longer for your case toget to court for hearing.

Special rules govern venue in actions against stateagencies. A claim may be filed against any stateagency in any county in which the CaliforniaAttorney General maintains an office — Sacra-mento, San Francisco, or Los Angeles. Also, adefendant sued by a state agency can have the casemoved to whichever of the Attorney General’soffices is closest to the residence of the defendant.

How Quickly Must You File Your Case?Most claims must be filed within a set time limit,called a statute of limitations. If the claim isn’tfiled within the time set by the statute of limitations,the judge may be required to dismiss the claim,unless the operation of the statute of limitations wassuspended and the time limit extended.

The statute of limitationsprevents the filing of casesthat are old. Memories fade,witnesses die or move away,and once-clear details tendto blur together. As a generalrule, you should file yourcase as soon as reasonablypossible. Statutes of limita-tions are generally not less than one year.

Here are some examples of various statutes oflimitations:

♦ Personal injury — One year from the date ofthe injury. If the injury isn’t immediately discov-ered, one year from the date it is discovered. Aminor has one year from his or her 18thbirthday to file a case.

11www.dca.ca.gov

♦ Oral contract — Two years from the date thecontract is broken

♦ Written contract — Four years from the datethe contract is broken

♦ Government entity — Before you can sue agovernment entity, you must file a written claimwith that entity. For cases involving personalinjury and/or damage to personal property, youmust file the claim with the government entitywithin six months. For cases involving breach ofcontract and damage to real property, you mustfile the claim within one year. If your claim isrejected by the government entity, you mustusually file a court action within six months ofthe rejection, or you’ll lose your right to sue.

Rules governing the statute of limitations arecomplicated, and exceptions may apply to yourclaim. For example, if the defendant lived outsidethe state or was in prison for a time, the period forfiling your claim may have been extended.

You might assume that a contract was an oralcontract, which has a limitation of two years, whileit is really a written contract with a limitation offour years. If you’re unsure about whether yourclaim is too old to file, you may file it and let thejudge decide whether it was filed too late.

What Forms Do You File With theCourt?You can obtain the forms for filing your suit byvisiting or writing any small claims court or byclicking on the Judicial Council’s Web site:www.courtinfo.ca.gov. At most courts, the courtclerk will give you an Information for Plaintiff sheetthat describes small claims court procedures. Thecourt clerk will ask you to complete and sign aPlaintiff’s Claim and Order to Defendantform. Or you may be asked to complete aPlaintiff’s Statement, a local form that theclerk uses to prepare the Plaintiffs Claim andOrder to Defendant form for your signature. Insome courts you can file your forms via the Inter-net.

Businesses that use fictitious business names —for example, “Joe Jones doing business as Joe’sGarage” — also must submit a FictitiousBusiness Name Declaration form that statesthe business has complied with California’s ficti-tious business name registration laws.

You must pay the filing fee when you submit yourpapers. If you can’t afford this cost, you mayrequest the court to waive those fees. You canrequest a court waiver by completing and filing anApplication for Waiver of Court Fees andCosts. For information on the standards used bythe court in ruling on such applications, ask thecourt clerk for the Judicial Council’s InformationSheet on Waiver of Court Fees and Costs.

If the court that you select holds evening or Satur-day hearings, you can request an evening orSaturday hearing when you file your case. Ask thecourt clerk for the local court rules.

If You’re the Plaintiff…Filing Your Law

suit

the

dos

and

don’

ts o

f U

SIN

G T

HE

SMAL

L CL

AIM

S CO

UR

T

12

How Do You Name the Defendant?Try to name the defendant or defendants correctlyon your Plaintiff’s Claim and Order toDefendant form. In order for a claim to beenforced, the defendant must be named correctly.However, if you don’t know the defendant’s correctname and only learn about it later, you can ask thejudge to amend or modify your claim at the hearingor later.

If you’re not sure which of several possible defen-dants is responsible for your claim, you shouldname each person you believe is liable. The courtwill decide whether the people you named areproper defendants and are legally responsible.

Here are some examples of ways to name adefendant:

♦ An individual — Write the first name, middleinitial (if known), and last name. Example:“John A. Smith.”

♦ A business owned by an individual — Writethe names of both the owner and the business.Example: “John A. Smith, individually and doingbusiness as Smith Carpeting.” If you win yourcase, you can enforce your court judgmentagainst assets (e.g., a checking account balance)in the names of either John A. Smith or SmithCarpeting.

♦ A business owned by partners — Write thename of both the business partnership and theindividual partners. Example: “Suburban DryCleaning” and “John A. Smith and Mary B.Smith.” If you win your case, you’ll be entitled tocollect from the assets of either the partnershipor an individual partner. They should be sued as“John A. Smith and Mary B. Smith, individuallyand doing business as Suburban Dry Cleaning.”

♦ A corporation — Write the exact name of thecorporation, as you know it, on the claim form.You need not name an individual. Example:“Fourth Dimension Graphics, Inc., a corpora-tion.” If the corporation operates through adivision or subsidiary, both should be listed.Example: “Middle Eastern Quality Petrol, acorporation, individually and doing businessas Fast Gas.”

♦ A vehicle accident defendant — If you’resuing to recover your losses in a motor vehicleaccident, you should name both the registeredowner or owners and the driver. Example: If theowner and the driver are the same person, “JoeSmith, owner and driver.” If the owner anddriver are not the same, “Lucy Smith, owner,and Betty Smith, driver.”

You also need the defendant’s correct address sothat he or she can be notified of the case. If you’resuing a local business or a corporation, you canfind the defendant’s correct name and address inthe telephone directory or the city directory or bychecking the city’s business licensing bureau, thecity or county tax assessor’s office, or the countyclerk’s fictitious business name index. If thedefendant lives outside of your area, trywww.smartpages.com or other online phonedirectories.

The Secretary of State’s Corporate Status Divisioncan give you the names and addresses of personswho may be served on behalf of corporations thatare doing business in California. (See “Determininga Corporation’s Directors and Agents for Service ofProcess” on page 16.)

In order to amend your claim if it hasn’t yet beenserved, go to the small claims clerk’s office and askto have an amendment sheet added to the claim youfiled. Be sure to bring your copy of the originalclaim form with you. If any of the defendants havebeen served on the original claim, you’ll need tosubmit a letter to the court requesting the court’spermission to amend your claim.

In order to delete one or more defendants fromyour claim, use the dismissal form that you re-ceived with your claim. Be sure to indicate thatyou’re dismissing the case only against certainnamed defendants and that you’re not dismissingthe entire case. As a courtesy, you should informthe dismissed defendants that they need not appearin court.

13www.dca.ca.gov

How Do You Notify the Defendant?The Plaintiff’s Claim and Order to Defen-dant form, when it is completed and issued by thecourt clerk, tells the defendant the basis for theclaim and the date, time, and place of the hearing.

After you have filed your claim in the small claimscourt and obtained a hearing date, you mustarrange for someone to give each defendant a copyof the Plaintiff’s Claim and Order to Defen-dant form that you filed. This must be done beforeyour case can be heard. Giving this document to adefendant is called service of process. It’s yourresponsibility to make sure that each defendant isproperly notified about the lawsuit in this way, andto pay the fees and costs of giving this notice. As acourtesy, try to give the defendant more advancenotice than is legally required.

With two exceptions, service of process must bemade within the boundaries of the state of Califor-nia. The following kinds of defendants need not beserved within the state:

♦ A nonresident defendant who owns realproperty in California, if the defendant hasno agent for service of process and the claimrelates to that property. (The nonresidentdefendant may send a representative or submitan affidavit to defend the claim.)

♦ A nonresident defendant who owned oroperated a motor vehicle involved in anaccident on a California highway, if serviceof process is made on both the defendant andthe Department of Motor Vehicles.

Since out-of-state corporations and partnershipsthat operate here usually designate a Californiaagent for service of process, you may be able tomeet the in-state service requirement by serving thecorporation’s agent for service of process. Toobtain that information, call (916) 653-7315(recorded message).

You can have your Plaintiff’s Claim andOrder to Defendant form served in the follow-ing ways:

♦ Certified mail by court clerk — The courtclerk may serve the claim form on the defen-dant by certified mail and restricted delivery,and charge you a fee of about $6.00. The court

clerk receives a return receipt indicating thatthe person identified by you for service signedfor the certified mail. Within 10–15 days afterthe clerk mails the Plaintiff’s Claim andOrder to Defen-dant, you shouldcall the small claimsclerk to determinethat your claim hasbeen successfullyserved. You shouldprovide the clerk with the case number andhearing date when requesting this information.

CAUTION: Ser vice by certified mail isn’t ver ysuccessful. In some courts, only about 50% of theattempts are successful. One reason is that thedefendant may refuse to accept delivery or to sign areceipt for delivery. Another is that if the defendantdoesn’t appear at the hearing, the judge may refuseto hear the case unless the judge determines that it isactually the defendant who signed the return receipt.Frequently, the signature on the return receipt isillegible, or someone other than the defendant signed.If the return receipt is the only evidence of thedefendant’s signature, and there is no other evidenceto show that the signature is actually the defendant’s,the judge may ask that you serve another copy of yourPlaintiff’s Claim and Order to Defendant on thedefendant.

♦ Personal service — A process server,someone other than yourself who is 18 yearsor older and not a party to the lawsuit, maygive a copy of the Plaintiff’s Claim andOrder to Defendant to the defendant. Mostplaintiffs use a professional process server, orthe sheriff where available, as a process server.You are entitled to reasonable reimbursementfrom the defendant for the cost of service if youwin the case. If you decide not to use a profes-sional process server or the sheriff, and have afriend serve the papers, make sure that thepapers are properly served on the defendant.It’s not enough merely to drop the papers atthe doorstep or serve a member of the house-hold. Service of process is ordinarily accom-plished by delivering a copy of the Plaintiff’sClaim and Order to Defendant to thefollowing person:

If You’re the Plaintiff…Filing Your Law

suit

the

dos

and

don’

ts o

f U

SIN

G T

HE

SMAL

L CL

AIM

S CO

UR

T

14

• In the case of an individual defendant— To the defendant in person, or tosomeone that the defendant has authorizedto receive service.

• In the case of a partnership — To(1) a general partner, (2) the generalmanager of the partnership, or (3) anindividual or entity that the partnership hasdesignated as its agent for serviceof process.

• In the case of a corporation — To(1) the president or other head of thecorporation, (2) a vice president,(3) a secretary or assistant secretary,(4) a treasurer or assistant treasurer,(5) a general manager, (6) an individualor entity that the corporation has designatedas its agent for service of process, or (7)any other person authorized to receiveservice of process.

• In the case of a minor — To the minor’sparent or guardian or, if no such person canbe found with reasonable diligence, to anyperson having the care or control of theminor, or with whom the minor resides, orby whom the minor is employed. If theminor is age 12 or older, a copy of the claimalso must be delivered to the minor.

♦ Substitute service — A process server mayalso leave a copy of the Plaintiff’s Claim andOrder to Defendant at the defendant’s homeor usual place of business. It must be left in thepresence of a competent member of the house-hold who is 18 years or older, or with the personin charge at the defendant’s place of businessduring normal office hours. In addition, theprocess server must tell the person being servedwhat the papers are for, and a copy of the papersmust also be mailed to the defendant by firstclass mail at the place where the papers wereleft. Substitute service is considered to becompleted on the tenth day after mailing. Youmust state the name of the defendant and thename of the person who served the papers onthe Proof of Service form and return this tothe clerk of the court.

♦ Service on non-resident motorist —A process server mayserve a non-residentmotorist involved in anin-state accident by firstserving the CaliforniaDepartment of MotorVehicles, and thenserving the defendant byany of the methodsoutlined above or byregistered mail. This is arather complex process, and you should consultwith the court clerk or small claims advisorbefore serving a non-resident motorist outsideCalifornia.

No matter which type of service you use, servicemust be completed within explicit time limitsbefore the hearing. Personal service must becompleted 10 days before the hearing if thedefendant lives or has his or her principal place ofbusiness in the same county where the court islocated, and 15 days before the hearing if thedefendant lives or has his or her principal place ofbusiness outside the county. If you used substituteservice after service on the household or business,the Plaintiff’s Claim and Order to Defen-dant form must be mailed at least 20 days beforethe hearing for in-county defendants, and 25 daysfor out-of-county defendants.

If you don’t serve the defendant within theseexplicit time limits, the defendant may ask for apostponement and, in most cases, a postponementwill be ordered. In counting the days, don’t countthe day in which service was completed, but docount the date of the hearing.

15www.dca.ca.gov

You need the defendant’s address for a number ofreasons. You may want to contact the other party toattempt to settle the case before filing the actionand also to communicate your pre-filing demand.Then, when you file your case in small claimscourt, you’ll need an address to give to the processserver to serve the Plaintiff’s Claim and Orderto Defendant. If you win your case, you’ll needan address where you can send a letter requestingpayment. Here are several important sources ofinformation for finding out where the other partylives or works.

DirectoriesThe most obvious source of addresses, and oneoften overlooked, is the telephone directory. Fordefendants living outside your area, trywww.smartpages.com or other online phonedirectories. If the only information you haveconcerning the other party is a telephone number,and the number is one that is listed in the tele-phone directory, you may use reverse telephonedirectories in your public library or online. Inaddition, directory assistance offers a reversedirectory.

County Assessor’s OfficeIf the person you’re seeking owns property, you cansearch the tax rolls of the county assessor’s office.The tax rolls list the names and addresses ofproperty owners in the county by both the owner’sname and the address of the property. The countyregistrar or recorder maintains a listing of propertyowners by name and location of the propertyowned.

Change of AddressIf the person has moved, the Postal Service will notgive out the new address for a private individual toanother private individual merely upon writtenrequest. The new address for a business is availablefor a $3.00 fee. However, once you have filed yourlawsuit, you may obtain the forwarding address of aperson or a business for the purpose of servinglegal process using the steps listed below.

Obtaining Post Office Box RecordsThe Postal Service will give you the street addressof the holder of a post office box if the box isbeing used to solicit or engage in business with thepublic. You should visit or write the post office thatservices the box and provide an advertisement orother evidence that shows that the box is beingused for a business purpose.

The Postal Service also will give you a forwardingaddress or the street address of a post office boxfor either a business or a person if you can certifythat the information is needed to serve that partywith court process and that it will be used solely forthat purpose. To do this, you should visit or writethe post office that services that box and complete aform, which you may pick up at the post office, orsubmit a written request that includes the followinginformation:

• Your name and address• The name of the box holder• The box number• The zip code• The fact that you’re representing yourself

in a legal action• The name of the court• The title of the case• The case number• A brief description of the nature of the case• The identity of all other parties to the case• The fact that the box holder is a party to the

case (for instance, defendant or judgmentdebtor)

• A statement that the information will be usedonly for serving a court paper (for instance,Service of Process or Order to Appearfor Examination)

• The citation of the law (for a Service of Process,CCP Section 116.340, and for an Order toAppear for Examination, CCP Section708.110). See Post Office Manual Section352.44, subd.[e].

Locating the Other Party

the

dos

and

don’

ts o

f U

SIN

G T

HE

SMAL

L CL

AIM

S CO

UR

T

16

(916) 657-5448 (recorded message). You candownload instructions and an order form from theInternet at www.ss.ca.gov. For an extra charge, theSecretary of State will fax the requested informationto you.

Department of Motor Vehicles RecordsThe Department of Motor Vehicles will not releaseresidential addresses to litigants and processservers. The DMV will release residential addressesin the following situations:

♦ To courts and other governmentalentities — Courts will not obtain theresidential addresses for litigants.

♦ To law enforcement agencies — Manylaw enforcement agencies will request theresidential addresses of motorists or vehicleowners for use in preparing their accidentreports.

♦ To an attorney — The attorney must stateunder penalty of perjury that the residentialaddress of a driver or registered owner isnecessary to represent a client in a lawsuitinvolving the use of a motor vehicle.

♦ To an insurance company — The insurancecompany may obtain the address of a motoristor vehicle owner who was involved in anaccident with the insured, or if the motorist orvehicle owner signed a waiver.

♦ To a financial institution — The financialinstitution must have obtained a written waiverfrom the individual driver or vehicle ownerwhose residential address is requested.

The InternetMany resources exist on the Internet to locate anindividual or business. The major browsers havesearch capabilities if you know an individual’sname. Reverse directories now exist online. Mostregulatory agencies’ Web sites have a directory oftheir licensees. Some Internet addresses are givenin this pamphlet. However, since Internet resourceschange constantly, you should research the differentexisting Internet resources.

Locating Sole Proprietorships andPartnershipsThe county clerk’s office maintains a listing offictitious business statements. The statement lists thenames and addresses of the owners of businessesoperating under a name different from the owners’names. Check the computer listing of the businessto obtain the certificate number, and ask the clerk toassist you in finding the certificate in the files. Thecertificate contains the owner’s name and address.In some counties you can obtain this information bymail. Check with the clerk of your county to deter-mine availability, cost, and the procedure to follow.You can find the address and phone number of thecounty clerk’s office for your county in the Govern-ment Pages of your phone book. It’s usually listed inthe county section under the heading “Assessor —County Clerk-Recorder” or “County Clerk.”

Locating Partnerships and LimitedLiability EntitiesThe Secretary of State’s Web site www.ss.ca.gov alsoincludes records of general partnerships, limitedpartnerships, limited liability companies, andlimited liability corporations. (See “Determining aCorporation’s Directors and Agents for Serviceof Process” below.)

Locating a Business Through the CityClerk’s OfficeThe city clerk’s office, tax and permit division,maintains a list of the names and addresses of mostpersons licensed to do business in a city. You canfind the address and phone number of the cityclerk’s office in the Government Pages of yourphone book. It’s usually listed in the city sectionunder the heading “Clerk.”

Determining a Corporation’s Directorsand Agents for Service of ProcessThe Secretary of State maintains a record of thenames and addresses of the officers of corporationsand their agents for service of process who can beserved with the claim in a small claims action. Forinstructions on how to obtain this information, call

17www.dca.ca.gov

What Should You Do After You Receivean Order to Appear?Let’s assume that you’ve been named as a defendantin a small claims action, and have received anorder to appear at a small claims hearing. Thismeans that you’re the defendant and are being suedby someone else — the plaintiff. You probablyknow why you have been sued. If you don’t knowwhy you’re being sued, contact the plaintiff immedi-ately for an explanation. The plaintiff’s name andaddress appear on the Plaintiff’s Claim andOrder to Defendant form that you have re-ceived.

Never ignore an order to appear in court, even ifyou think the case is wrong, unfair, has no basis, orif you think you were not given the order properly.If you don’t appear in court on the proper date andtime, the court may hear and decide the casewithout you, and you may lose the suit by default.A default judgment may then be entered againstyou, in your absence, without the judge everhearing your version or side of the dispute. Yourmoney or property and maybe a portion of yourearnings can then be taken legally by the judgmentcreditor to pay the judgment against you, and yourcredit record may show that there is a judgmentagainst you. If you’re a member of a licensedprofession or occupation, the judgment may belisted in the records of the agency that licenses you.

What If You Owe the Claim?If the plaintiff’s claim is valid, you can save yourselfmoney, time and inconvenience by resolving thedispute before the hearing date. If you go to courtand the plaintiff wins, you’ll probably also have topay the plaintiff’s court costs, and possibly interest,in addition to the amount you already owe. Thejudgment may appear on your credit record, evenafter you’ve paid it.

You can either try to reach a settlement with the

plaintiff, or let the court decide the case. If you’reunable to resolve the dispute directly with the otherparty, you must appear at the hearing, unless youhave received notice of a new court date, a transferto another court, or some other official action bythe court that excuses you from appearing.

It’s always a good idea to talk or write to theplaintiff before the hearing. The dispute may bebased on a misunderstanding that you can clear up.If you believe that you owe the plaintiff something,but don’t have the money to pay it now, you canoffer to pay the amount that you believe you owe byweekly or monthly payments. If that is the situation,you should take the following steps: (1) ask theplaintiff to dismiss the case without prejudice(which means that the plaintiff can refile the claimif you don’t carry out your promises), and (2)enter into a precise agreement for payment thatincludes the agreement you’ve made with theplaintiff on each of the followingsubjects:

• The grand total amount thatyou agree to pay, including anyinterest and court costs

• The amount of each installmentpayment

• The total number of installment payments

• The date (such as “the first of each month”) onwhich each installment payment will be paid

• The exact date on which the installment pay-ments begin

• The length of any “grace period” for paying aninstallment and the effect of a failure to pay. Forexample: “If any installment is not paid within10 days after the date on which it is due, theentire unpaid balance of the debt shall beimmediately due and payable.”

If You’re the Defendant…Responding to the Lawsuit

the

dos

and

don’

ts o

f U

SIN

G T

HE

SMAL

L CL

AIM

S CO

UR

T

18

If you can persuade the plaintiff to dismiss the casewithout prejudice, and you pay the amount youagree to pay, the claim will not appear on yourcredit report as a judgment. Keep in mind that byentering into an installment payment agreement,you probably are waiving (giving up) your right tohave the court determine whether you owed thedebt. If you don’t pay the debt, the plaintiff cansimply bring this agreement to court and ask thecourt to issue a judgment which states that you owethe amount set forth in that agreement.

Even though you may have a justifiable defense to allor part of the plaintiff’s claim (and believe you owenothing, or less than the amount of the plaintiff’sdemand) and have informed the plaintiff why this isso, the plaintiff may refuse to reduce or withdrawthe claim. In that situation, you should call aneighborhood mediation center to try to persuadethe plaintiff to select a neutral third person to helpyou and the plaintiff resolve the dispute informally.Most neighborhood dispute resolution centers offermediation services. (See “Have You ConsideredMediation?” on page 6.)

If there isn’t enough time to obtain help from aneutral third person or a dispute settlement centerbefore the hearing, you can appear at the hearingand ask the small claims judge to postpone thehearing to a later date in order to give you and theplaintiff sufficient time to attempt to resolve thedispute through mediation, arbitration, or otherinformal means. The judge, at his or her discretion,can postpone the hearing if either party requests apostponement for that reason.

What If You Can’t Resolve the DisputeInformally?If you can’t resolve the dispute, make sure youattend the hearing and explain your side to thejudge. Remember that unless you’re there, the judgecan’t possibly know whether you have a validdefense to the plaintiff’s claim. For example, if youthink the case is too old to be enforceable, or thatthe plaintiff, not you, caused the problem, you mustexplain this to the judge. The judge will want to hearboth sides of the dispute before deciding and mayagree with you.

Also, look closely at the amount claimed by theplaintiff. If it’s a total of several items, ask yourself,Do I actually owe each item? Are the plaintiff’scalculations correct? Are the claims for extras suchas interest or late charges all valid? If you havequestions, check with a small claims advisor beforethe hearing, or state your concerns to the judge atthe hearing.

What If You Can’t Attend the Hearing?If you have a good reason to postpone the hearingto a different date, you can write a letter to thecourt and ask for a different hearing date. (Attor-neys refer to this as a “continuance.”) You mustsend a copy of your letter to the other party.

As a general rule, you must pay a fee of $10 withyour written request for postponement. However,no fee is required if a defendant requests a post-ponement because he or she wasn’t served in atimely manner before the hearing, or requests acontinuance before the plaintiff has served theclaim form on the defendant.

You must have a good reason to receive a post-ponement of a court hearing date. The courtusually will postpone the hearing in the followingsituations: (1) the plaintiff hasn’t been able to servethe defendant, (2) the defendant wasn’t served asufficient number of days in advance of the hearingdate, (3) the defendant filed a cross claim andthe plaintiff wasn’t served with the cross claim atleast five days before the hearing date (unless thedefendant was served less than ten days before thehearing date, in which case the defendant mayserve the plaintiff until the day before the hearing),or (4) the court determines that the parties desireto engage in mediation or other forms of alternativedispute resolution. If you’re unsure whether yourparticular reason may be a good enough reason forthe court to postpone the hearing date, check witha small claims advisor in your county.

19www.dca.ca.gov

What If Service of Process Is Improper?You’re entitled to receive at least 10 days’ advancenotice of the hearing (15 days’ notice if you resideoutside the county in which the court is located). Ifyou didn’t receive proper advance notice, you’renot legally obligated to appear at the scheduledhearing. However, if you received some advancenotice but don’t plan to appear, it’s a good idea tocall or write the court and explain why. If therequired notice wasn’t given to you on time, thecourt will reschedule the hearing.

Even if you weren’t served properly, however, youstill may want to attend. Ordinarily, you shouldn’trefuse to attend simply because you received a latenotice, but only if the late notice has made it muchmore difficult to prepare for the hearing or attendit. For example, the claim may have been droppedat your doorstep, instead of having been personallyserved on you, or it may have been served on yourneighbor, who promptly gave it to you. In both ofthese cases, service was technically improper, butyou knew about the claim and had sufficient timeto prepare.

By attending the hearing, even if service of processwas late or otherwise improper, you can presentyour defense and perhaps resolve the disputewithout further delay. If you don’t attend, theplaintiff may incur additional costs to serve you,and if you later lose, you may have to pay theseadded costs. If you don’t appear, a default judg-ment may be rendered against you. In that event,you would have to prepare and file a request tooverturn this judgment.

If you were not served within the legal time limits(10 days before the hearing if you live within thecounty and 15 days if you live outside) and youneed more time to prepare, you probably shouldcall and write the clerk of the small claims courtand ask that the case be postponed.

If You’re the Defendant…

Responding to the Lawsuit

What If the Plaintiff Has Filed in aWrong Court?If you feel that the plaintiff has filed in the wrongcourt, or venue (see “Where Do You File YourCase” on page 9), you have the following options:

♦ Appear at the hearing and not challengevenue. If you feel that it would not be inconve-nient to have the hearing in the county selectedby the plaintiff (because, for example, you livein a neighboring county only five miles from thecourthouse), you could appear and waive (giveup) your right to challenge venue.

♦ Challenge venue at the hearing. You couldchallenge (that is, object to) the venue at thehearing. If the judge decides that plaintiff’schoice of venue was proper, then you canproceed with the hearing. If the judge decidesthat the plaintiff’s choice of venue was im-proper, the case must be dismissed withoutprejudice.

♦ Challenge venue by writing to the court.This is probably the easiest option, particularlyif you live a long way from the court or it’s notconvenient to attend. You merely write a letterto the court explaining why the plaintiff’s choiceof venue wasn’t correct. If the judge disagreeswith you and you’re not present at the hearing,the judge must postpone the hearing for 15days. The judge can’t render a decision if you’renot present, if you have challenged venue. Ifthe judge believes that venue is improper, thenthe case must be dismissed without prejudice.

Even if you don’t challenge venue, it’s a duty of thejudge to find that the location of the hearing isproper — to determine after checking the factsthat there is some legal basis for the plaintiff’s

the

dos

and

don’

ts o

f U

SIN

G T

HE

SMAL

L CL

AIM

S CO

UR

T

20

choice of that court. Also, even if the location of thecourt selected by the plaintiff is correct, the judgemay, on rare occasions, transfer the case to anothercourt that is more convenient for the parties andtheir witnesses. For example, if you have manywitnesses who must travel to the court from adistant location, the judge may order that the casebe transferred to a court near that location. Inevaluating transfer requests, the courts give greaterweight to the convenience of those disputants whoare individuals than those that are legal entities suchas corporations, partnerships, and public entities.

What If the Plaintiff Owes You Money?If you believe the plaintiff has caused you injury orowes you money for any reason, you can file aclaim against the plaintiff in the same small claimscourt action. If your case is related to the subject ofthe plaintiff’s case, it may be helpful and convenientto resolve it at the same hearing by filing aDefendant’s Claim and Order to Plaintiff.It’s not necessary that your claim against theplaintiff be related to the plaintiff’s claim againstyou. The small claims court can resolve bothdisputes.

If you file a claim against the plaintiff, the samebasic rules and procedures generally apply. Legalprinciples, such as statutes of limitations, alsoapply. Ordinarily, the plaintiff must receive a copyof the Defendant’s Claim and Order toPlaintiff at least five days before the scheduledhearing. However, if you received the Plaintiff’sClaim and Order to Defendant less than 10days before the hearing, then you can serve theDefendant’s Claim and Order to Plaintiff aslate as one day before the hearing. Always have thepapers served as early as possible.

Think carefully if your claim against the plaintiff isfor more than $5,000 (or $2,500 if you havealready filed more than two small claims courtactions for more than $2,500 anywhere in the stateduring the calendar year). In these situations, youmay be able to transfer your case or both cases tothe superior or municipal court.

If your claim is for a large amount, you shouldconsult with an attorney or small claims advisorbefore filing a Defendant’s Claim and Orderto Plaintiff in the small claims court. (Reviewpage 9 in this handbook.)

21www.dca.ca.gov

and settlement with the other party. Even on the dayof your hearing, it’s not too late to settle yourdispute.

If you resolve the problem, it’s best to put yoursettlement agreement in writing. If possible, theagreement should be signed and dated by both ofyou. The written agreement should describe thearrangements for making payments. If periodicpayments will be made, the agreement shouldindicate the amount of each payment, the date eachpayment is due, and the consequences of any latepayments. (See “What If You Owe the Claim?” onpage 17.)

If the parties settle the dispute before thehearing date, the plaintiff can file a Request forDismissal with the small claims court. Beforedoing this, however, the plaintiff has the right toreceive full payment of the agreed-on amount incash. If it is paid by check, the plaintiff is entitled towait until the check clears before filing the Re-quest for Dismissal.

If the dispute is resolved on the day of the hearing,there may not be enough time to dismiss the case.In that event, both of you should attend the hearingand tell the judge that you have settled the dispute.The judge may (1) dismiss the case withoutprejudice, or (2) postpone the hearing for a shortperiod to enable the defendant to pay the claim, or(3) include the settlement agreement as part of aregular court judgment.

If the dispute is resolved and the case is dismissedwithout prejudice, no judgment will appear on thedefendant’s credit report. If the defendant violatesthe settlement agreement, such as by missingpayments he or she agreed to make, the plaintiffmay refile the case and submit the settlementagreement as evidence that the plaintiff agreed topay the amount set forth in the agreement. In mostcases, the plaintiff need not prove the original basisfor the amount being owed but can rely on thesettlement agreement to prove the amount owing.

While you’re waiting for your hearing date, prepareyour case or defense as thoroughly as you can.Double-check your facts. Ask important witnessesto attend the hearing, gather all of the evidence youthink you may need, and decide what you’ll say tothe judge.

Organize your thoughts and evidence to make yourclaim as easy as possible to understand. Considerpreparing a written outline of the important factsand the points you intend to make to the judge. Tryto think of the questions the judge might ask, andof any available evidence that supports youranswers and that you can bring to court. Also try tothink about what the other party is likely to say, andabout what evidence he or she may bring to court.

By thinking ahead, you’ll be in a better position topresent your case. Remember that judges areunder pressure to hear and decide cases quickly,and that you can help yourself by being wellprepared. It’s also a good idea to sit through asmall claims court session before the date of thehearing. This will give you firsthand informationabout how small claims cases are heard in yourlocal court.

On the day of your hearing, schedule enough timeto get to the court, allowing for possible transpor-tation or parking delays. Try to arrive early so youcan find the proper courtroom. Then relax, listenfor announcements, and think about your case. Alist of the day’s small claims court cases, called a“court calendar,” is usually posted outside thecourtroom. If you don’t find your name or caselisted on the court calendar, check with the smallclaims clerk.

Resolving Your Dispute Before theHearingFor most people, a dispute, especially a lawsuit, isvery stressful. Be reasonable in your demands tothe other party. Keep the lines of communicationopen. Always leave room for possible compromise

Plaintiffs and Defendants…Making the Best of Your Day in Court

the

dos

and

don’

ts o

f U

SIN

G T

HE

SMAL

L CL

AIM

S CO

UR

T

22

Gathering Your DocumentsGather any evidence thatwill help the judgeunderstand the case. Yourevidence may include anywritten contract, receipt,letters, written estimates,repair orders, photographs, canceled checks,account books, advertisements, warranties, servicecontracts, or other documents. Whenever possible,bring originals rather than copies of documents.In property damage cases, some courts ask theplaintiff to provide two or three repair costestimates to show the reasonableness of the claim.Make a map, diagram, or drawing if it will help youexplain your case more easily and quickly.

Make two copies of any document you intend to givethe judge. The judge may ask you to give one copyto the other party and may place one copy in thecourt’s file. The court will usually allow you to keepyour original.

In small claims court, judges take an active roleand ask any questions that will enable them tounderstand the case. Small claims judges can alsoconsider information and evidence that would notbe permitted in other courts. Therefore, don’thesitate to bring any items or documents that youbelieve may help the judge understand the case.

Arranging for WitnessesIn most small claims cases, you or the otherparty can easily provide all the information anddocuments the judge will need in order to under-stand and decide the dispute.

Sometimes, however, you’ll need to present infor-mation that can be provided only by a witness. Ifyou believe this information is essential to your caseor defense, you should make a special effort to havethe witness attend the hearing.

If a witness can’t attend the hearing, you can ask thewitness to write and sign a statement called a“declaration” for submission to the court. Thisstatement should include everything the witnesswould like to tell the judge about your case ordefense. At the end of the statement, the witnessshould write, “I declare under penalty of perjury

under the laws of the State of California that theabove is true and correct.” The witness should alsodate and sign the statement and write his or her cityand telephone number at the time of signing. If thewitness isn’t living in California, the statementshould be signed before a notary public. Thewitness should also include a phone number incase the judge needs to call the witness. (The judgeisn’t required to accept a written statement, so it’sbest to have an important witness come to thehearing.)

You also may want to consult with the small claimsclerk or small claims advisor about whether thecourt will allow your witness to testify by telephone.Some, but not all small claims judges will allow awitness, especially one who lives at a long distanceor who will not be available for the hearing, totestify by telephone. It’s a good idea to present aletter to the court from the witness explaining whythe witness can’t appear in person at the hearing. Ifthe court permits telephone testimony fromwitnesses, you should ask for permission from thecourt in advance of the hearing.

Always talk to a witness before the hearing. Thewitness may not see or interpret the facts the sameway you do, or may have forgotten the key points.Also, if the witness is hostile to you, he or she maydo you more harm than good.

If your case involves a technical issue, such as thereason that a car or TV isn’t operating properly, youmay need to consult an expert. You can arrange forthe expert to attend the hearing as a witness, or youcan ask the expert to prepare and sign a writtenstatement (declaration). The judge also canappoint or consult with an expert. You probablywon’t be reimbursed for expert witness fees, butyou still might want to hire an expert at your ownexpense.

If your witness won’t voluntarily come to court orwon’t provide some documents you need, you cansubpoena the witness. A form called a SmallClaims Subpoena (or Civil Subpoena) is acourt order that requires a person to come tocourt. This form, when issued by the court, canalso order a person to bring described records orother documents to court.

23www.dca.ca.gov

Hearings Before Temporary JudgesMost courts use temporary judges (sometimescalled pro tem judges) to hear small claimscases. A temporary judge is an attorney who hasbeen licensed for a minimum of five years topractice law in California and who volunteers toassist the court by hearing certain cases. Thetemporary judge is required to take a trainingprogram before hearing cases.

On the day of the hearing, youmay be asked to consent, orstipulate, that a temporaryjudge (rather than a regularjudge or a court commis-sioner) can hear and decideyour case. Before a temporaryjudge may hear a case, allparties who appear at thehearing must give theirconsent. Some courts requirethe parties to sign a written consent form. If eitherparty doesn’t consent, the clerk probably willreschedule the hearing to a later date or time whena regular judge or court commissioner is available.

If you’re given the option of a hearing by a tempo-rary judge, you should consider several factors:

• Many small claims court calendars are over-crowded, so it’s possible that your hearing willbe held on the scheduled date only if thehearing is conducted by a temporary judge.

• Attorneys who serve as temporary judges havebasic knowledge about consumer law.

• All courts must provide special trainingprograms for their temporary judges.

Presenting Your Case or DefenseBefore the hearing, the courtroom procedures areexplained either by the judge or some other courtofficer. Many courtrooms now use videotapes toexplain these procedures. The court will then callroll to see which plaintiffs and defendants arepresent for their hearings. Listen carefully so thatyou’ll know what to do. Everyone who will partici-pate in the hearings will be asked to take an oathpromising to tell the truth.

It’s not a good idea to force somebody to testify onyour behalf, since this person probably won’t makea good witness or may even testify against you.However, a subpoena may be needed to enable awitness to obtain permission from his or heremployer to be absent from work to testify in court.

You can obtain a Small Claims Subpoena fromthe clerk of the small claims court or in somecounties from the small claims advisor. After youhave completed the Small Claims Subpoena, itis issued by the clerk of the court and is a courtorder. You then need to serve a copy of the SmallClaims Subpoena on the witness. Unlike thePlaintiff’s Claim and Order to Defendantform, you or anybody else can lawfully deliver acopy of the subpoena to the witness. After giving thewitness a copy of the subpoena, the originalsubpoena must be returned to the court with thecompleted Proof of Service on the back.

A witness can ask for fees of $35 per day plus 20cents per mile each way. Witness fees for lawenforcement officers and government employeesare higher. If a witness asks for fees, the witnessneed not appear unless the required fees are paidto and received by the witness. The person whoserves the subpoena should be prepared to pay thefees at the time of service in the event that fees arerequested. If the witness doesn’t ask for fees, youdon’t have to offer them.

If you’d like the witness to bring documents to thehearing, you’ll need to check the box requestingthe witness to do so. You’ll have to fill out thedeclaration form, describing exactly which docu-ments or papers you need and the reasons youneed them to support your claim. Both the SmallClaims Subpoena and a copy of the declarationform must be served on the witness. The SmallClaims Subpoena gives you two options: You canrequire the witness to bring the documents andtestify or merely to deliver the documents yourequested to the court. (You need not require thewitness to appear at the hearing.)

After the subpoena is served, the original (with thecompleted Proof of Service on the back of theform) must be filed with the small claims courtclerk before the hearing date.

Plaintiffs and Defendants…

Making the Best of Your D

ay in Court

the

dos

and

don’

ts o

f U

SIN

G T

HE

SMAL

L CL

AIM

S CO

UR

T

24

The court will then hear each case. Usually, thecases in which the defendant isn’t present — called“default cases” — are heard first. As you listen tothe other cases, you’ll learn more about how topresent your own case or defense. Cases are notalways called in the order listed on the courtcalendar, so be sure to stay in the courtroom.

When the judge is ready to hear your case, the clerkwill call the names of all plaintiffs and defendants inthe case. You, the other parties, and any witnesses,should then go forward to the table in front of thejudge. Judges usually ask the plaintiff to tell his orher side first, and then the defendant may speak.Some judges may begin the hearing by askingquestions of each party to learn more about thefacts, or to cover areas the judge knows are impor-tant.

Usually, you’ll have only a few minutes to explainyour side of the dispute or answer questions, so besure to present your most important points first.You can usually use a written outline or notes, butyou should not read a prepared statement. Be sureto have all your evidence and any important docu-ments with you. Tell the judge that you have them,and ask the clerk or other court officer to give themto the judge. If the judge needs to keep yourevidence for review, ask how and when you’ll getthe items back.

Telling your story to a judge isn’t like telling a storyto a friend. When you tell a story to a friend, youusually start from the beginning, giving all details,build some suspense, and then finish with anending. In court, you want to place in the mind ofthe judge the primary issue or issues of yourcase.

Many judges will ask for a short overview of thecase. In an auto accident case, if the defendant hasadmitted that the accident was his or her fault, tell

that to the judge, and say that the issue is theamount of damages and not liability. In a contrac-tor case, the plaintiff might say, “Your Honor, I amsuing the defendant roofing contractor for $1,000because he performed defective work on my roof,and it cost me $1,000 to get it done right.” In anauto repair case, the plaintiff might say, “YourHonor, I am suing the defendant auto mechanic for$600 because he didn’t fix a number of things onmy car for which he charged me, and I have areport from the Bureau of Automotive Repair thatexplains what he did wrong.” By giving thisoverview, you give the judge guidance on what factsto focus on. However, if you start out your autoaccident case in a narrative style, the judge won’tlearn about the issues of your case until later.

Some judges may investigate the case after learningrelevant information. For example, a judge mightask the Bureau of Automotive Repair to investigateallegations from a consumer that an auto repairshop had performed fraudulent work. Some judgeswill consult with contractors whom they know andtrust to obtain advice in a case involving anothercontractor. If your case involves shoddy work by anauto paint shop, you may want to bring your car tothe courthouse parking lot and ask the judge tolook at your car. A judge might visit the locationwhere an auto accident occurred. However, it’s upto the judge to determine if an investigation isappropriate.

Be brief in making your points. Do your best to beobjective and unemotional. The judge will beinterested only in hearing the facts about yourdispute. Don’t raise your voice or make insultingremarks about the other party or any witness, nomatter how angry you are. During the hearing,speak to the judge and not to the other party.Most important, be truthful in everything you say.

Answer the judge’s questions thoughtfully. If youdon’t understand the question, politely ask thejudge to explain the question or ask it in anotherway. Remember, too, that the judge is trying toapply laws that you might not know about; there-fore, don’t get angry if the questions are on pointsyou don’t consider important. The judge’s ques-tions may be of great importance to your case.

25www.dca.ca.gov

Since the law requires that any award of money be“reasonable” in amount, the judge will want toknow exactly how the plaintiff decided on theamount claimed. A plaintiff must be ready toexplain how this figure was determined. If interestis also claimed, the plaintiff should be prepared toshow exactly how it was calculated. It is beneficialto provide the judge with a written itemization orcalculation of your damages.

If the defendant believes that the amount claimedby the plaintiff is excessive or improper, thedefendant should be ready to explain why thismight be so. If the defendant knows that all or anypart of the amount claimed is owed to the plaintiff,it’s okay to tell the judge that, too. The judge mayagree about the amount that is owed, or the judgemay authorize an installment payment plan that thedefendant can afford.

While the judge is asking the other party to explainhis or her side of the dispute, don’t argue orinterrupt, even if you feel that what’s being said isn’ttruthful or accurate. Make a note to yourself as areminder. The judge will usually give you time toreply.

Plaintiffs and Defendants…

Making the Best of Your D

ay in CourtAsking for Your Court CostsAt the hearing, you should ask the judge to awardyour court costs if you win. Most judges awardcourt costs routinely to the winning party, but youshould still ask the judge for them at the hearing.Costs are out-of-pocket fees and charges a partypays to file and present a lawsuit. If you’re awardedcosts, the award is included in the judgment againstthe losing party. If neither party is the “losingparty,” the judgment might not include court costs.

Be sure to keep receipts for your filing fees andother out-of-pocket costs. Only some kinds of costscan be recovered from the losing party. Costs thatmay be recovered include amounts you have paidfor filing fees, service of process fees (if reason-able), witness fees (but generally not for expertwitnesses), and fees for service of subpoenas (ofwitnesses or documents). Other kinds of out-of-pocket expenses may be awarded at the judge’sdiscretion, so you should bring your receipts to thehearing.

the

dos

and

don’

ts o

f U

SIN

G T

HE

SMAL

L CL

AIM

S CO

UR

T

26

paid the money that the judge has ordered. If thelosing party performs the conditions set forth in thejudgment, the judge will then dismiss the case.

If the judge doesn’t rule in your favor, that doesn’tnecessarily mean that the judge didn’t believe whatyou said. Instead, the judge’s decision may bebased upon a law that must be applied to the factsof your case. You may write to the court for anexplanation of the ruling, although the court isn’tlegally obligated to explain it. Also, you may write tothe judge who heard the case, the presiding judgeof the court, or the court administrator, to registeryour feelings, good or bad, about your small claimsexperience. Most courts will look into complaintsbut will rarely reconsider a judge’s ruling.

Judgment Against a Non-AppearingPartySometimes one of the parties doesn’t come to thesmall claims hearing. If the defendant doesn’tappear, the key question is whether he or shereceived proper notice of the hearing. If the Proofof Service form shows that service of process wasproperly made, the judge will consider theplaintiff’s evidence and decide the case, even if thedefendant is absent.

A judgment isn’t automatically awarded against anon-appearing defendant in small claims court. Theplaintiff must still “prove” the case. If enoughevidence is provided, the judge may award theplaintiff some or all of the amount that is claimed.If the defendant is an active duty member of thearmed forces, however, special rules apply before ajudgment against the non-appearing defendant canbe awarded.

If the plaintiff doesn’t appear at the hearing anddoesn’t notify the court of the reason, the courthas several options. The judge may reschedule thecase, dismiss it with prejudice or withoutprejudice, or — if the defendant appears —enter a judgment against the plaintiff after consider-ing the defendant’s evidence.

Receiving the Judge’s DecisionAfter hearing from the parties who appear at thehearing, the judge will make a decision. The judgewill base the decision on the evidence, the law, andcommon sense. The judge may rule for either theplaintiff or the defendant, or may award somethingto both parties.

Sometimes the judge may decide the case immedi-ately, announce his or her decision in court, andgive the parties the judgment form — called theNotice of Entry of Judgment — in thecourtroom. Other times, the judge may not decidethe case until later. This is called taking the case“under submission.” If the judge takes the caseunder submission, you’ll receive your Notice ofEntry of Judgment in the mail.

The judge may take the case under submission toreview the evidence, research a point of law, orconsult with an expert. Also, if you forgot to bringan important document or other evidence tocourt — for example, a written contract — thejudge may allow you to bring it in promptly after thehearing so that it can be reviewed before a decisionis made.

If you don’t receive the Notice of Entry ofJudgment within two or three weeks, you can callthe small claims court and ask the court clerk tocheck on the delay. Be ready to give your casenumber when you call. If you change your address,be sure to give the court clerk your new address.Do this by letter and include the name and numberof your case, as well as your old and new addresses.

A small claims judgment is a public record that isoften listed in the losing party’s (judgment debtor’s)credit report, even after the judgment is paid. Toavoid that, some judges hear the case and issue adecision that becomes effective only if the losingparty fails to do what the judge decides. This keepsthe dispute out of the official records if the losingparty performs. The judge has actually decided thecase, but schedules a follow-up hearing at a laterdate to see if the losing party has done the things or

Plaintiffs and Defendants…The Judgment

27www.dca.ca.gov

Having the Judgment ReviewedOnly the defendant may appeal a small claims courtjudgment. The party who files a claim in smallclaims court (the plaintiff) can’t appeal the judge’sdecision on that claim. For that party, the court’sjudgment is final. Similarly, if the defendant files aclaim against the plaintiff, the defendant may notappeal the court’s ruling on the defendant’s claim.

There are two ways to have a judgment reviewed.The first is by having a new hearing in the superiorcourt. A defendant (or a plaintiff who loses on across claim) who appeared at the small claimshearing may have the judgment reviewed insuperior court. Also, an insurer of a defendant mayappeal the judgment if the judgment exceeds$2,500 and its policy covers the matter to whichthe judgment applies. The appeal is started by filinga Notice of Appeal form with the small claimscourt within 30 days after the judgment is deliveredor handed to the disputants in court or, if thedecision is mailed, within 30 days after the date the

clerk mails the Notice of Entry ofJudgment, whichever is earlier. Thedate will appear on the form you receive.The filing fee varies from county tocounty, but it usually ranges from $50–$90. Once the defendant files an appeal,the small claims judgment can’t beenforced, and the defendant need notpay on the claim unless the appeal isdismissed or the defendant loses theclaim on appeal.

The second method to have a judgmentreviewed is by filing a Request toCorrect or Vacate Judgment form.Although the defendant is the only partywith a right to file an appeal, a plaintiffwho loses may request the small claimscourt to correct “a clerical error in thejudgment” or set aside and vacate a

judgment “on the grounds of an incorrect orerroneous legal basis for the decision.” Thisrequest gives a plaintiff a limited opportunity tohave the small claims court reconsider its decision,although not necessarily the right to a hearing.Please note that if a defendant files a request tocorrect an error in the judgment, he or she should

Setting Aside the JudgmentIf a judgment is entered against a non-appearingparty, the non-appearing party can ask the court toset aside, or vacate, the judgment in certaincircumstances. If the plaintiff was unable to appearat the hearing and a judgment was entered againsthim or her, the plaintiff has 30 days after the date ofthe mailing of the Notice of Entry of Judgmentto ask the small claims court to set aside thejudgment and hold another hearing. To make thisrequest, the plaintiff must file a Notice of Motionto Vacate Judgment and Declaration formand explain why he or she didn’t appear at thehearing. A hearing to consider the request will thenbe held. The request to vacate the judgment may begranted, but only if the judge finds good cause forthe plaintiff’s not having attended the hearing. If therequest is granted, most courts will hold thehearing on the plaintiff’s claim immediately, so bothparties must attend that hearing and be prepared topresent their cases.

If the defendant didn’t appear at the smallclaims court hearing, other rules apply. Adefendant who failed to appear must firstask the small claims court to vacate or setaside the judgment. If the defendant wasproperly served, he or she must file aNotice of Motion to Vacate theJudgment and Declaration with thesmall claims court within 30 days afterthe date the court mailed the Notice ofEntry of Judgment. If the defendantwasn’t properly served, he or she has upto 180 days after learning that thejudgment was entered to file the Noticeof Motion to Vacate Judgment andDeclaration.

If the defendant’s motion to vacate thejudgment is granted, the case will bereheard by the small claims court. If themotion is denied, the defendant has 10 days fromthe date of denial or of the mailing of the notice ofdenial to request a review of the denial by thesuperior court. This request is accomplished byfiling a Notice of Appeal of the denial with thesmall claims court.

Plaintiffs and Defendants…

The Judgment

A small

claims

judgment is a

public record

that is often

listed in the

losing party’s

credit report,

even after

the judgment

is paid.

the

dos

and

don’

ts o

f U

SIN

G T

HE

SMAL

L CL

AIM

S CO

UR

T

28

also file an appeal within 30 days after receivingnotice of the small claims judgment.

The New HearingThe appealing party is entitled to a whole newhearing at the superior court, where the claims ofboth the plaintiff and defendant are heard again. Forexample, if the defendant appeals and also files across claim against the plaintiff and loses, both theplaintiff’s claim and the defendant’s cross claim areheard again at the superior court hearing. Similarly,if a plaintiff loses on both the plaintiff’s claim andthe defendant’s cross claim, the plaintiff may appealthe loss on the cross claim and have both theplaintiff’s claim and the defendant’s cross claimheard anew in superior court.

The Legislature requires that the superior courtjudge conduct the new hearing in the same informalfashion as the small claims judge conducted theoriginal hearing. However, an attorney may repre-sent a party at the appeal, and the court will allowthe attorney to cross-examine witnesses. Each partyshould be fully prepared to present his or her sideof the case and bring any supporting witnesses anddocuments.

After the appeal hearing, a new Notice of Entryof Judgment is delivered or mailed to the parties.If the new judgment is for the plaintiff, the defen-dant may be required to pay some of the plaintiff’sactual expenses. For good cause, and wherenecessary to achieve substantial justice between theparties, the superior court may award a plaintiffwho prevails in the hearings in both the smallclaims court and the superior court reimbursementof:

♦ Attorney’s fees actually and reasonably incurredin connection with the appeal, but not exceeding$150

♦ Actual loss of earnings and expenses of transpor-tation and lodging, to the extent actually andreasonably incurred in connection with theappeal, but not exceeding $150

The court will make an award of expenses against adefendant who loses his or her appeal only if thecourt determines that (1) the circumstances justifythe award and (2) the award is necessary to achieve

substantial justice between the parties.

If you’re the appealing party and the superior courtfinds that your appeal wasn’t based on substantialmerit or good faith, but was intended solely toharass or delay the other party or encourage theother party to abandon his or her claim, the courtcan award the other party judgment against you forup to $1,000 for attorney’s fees and up to $1,000for transportation and lodging. Therefore, if youfiled a claim in small claims court and lost, youshould not appeal unless, after carefully evaluatingyour claim, you have a good faith belief in its actualmerits, and are not appealing just to delay paymentor hurt the other party.

29www.dca.ca.gov

You’ll have to collect the judgment yourself if youwin in small claims court. The court will not collectit for you. If you’re the judgment creditor andhaven’t received the money the judge awarded,make sure that the other party — the judgmentdebtor — is aware of the judgment and itsamount, and also knows where to mail payment.Often, a simple personal note to the judgmentdebtor asking that the judgment debt be paid is allthat is needed to end the dispute.

The small claims court judgment becomes final andenforceable 30 days after the small claims clerk hasdelivered or mailed the Notice of Entry ofJudgment, if the defendant hasn’t filed a timelyappeal or Notice of Motion to Vacate Judg-ment and Declaration. If the defendant files anappeal and loses, the judgment becomes enforce-able after transfer of the case from superior courtback to the small claims court. This transfer mustoccur within 10 days.

If a judgment is rendered against you and you don’tintend to appeal, you should pay the judgment assoon as possible, since that will save you fromhaving to pay interest on the judgement.

If a judgment is rendered against you and becomesfinal, and you haven’t paid it within 30 days, youmust complete and return a Judgment Debtor’sStatement of Assets form to the judgmentcreditor. This form, which accompanies the Noticeof Entry of Judgment, gives the judgmentcreditor information concerning your property andsources of income. The judgment creditor can usethis information to assist in the collection of theamount owed. If you don’t complete the JudgmentDebtor’s Statement of Assets, the judgmentcreditor may bring you into court to complete thisform through an Order to Produce Statementof Assets and to Appear for Examination.

Options for Judgment Debtors♦ Pay the judgment to the court — The

judgment debtor may pay the judgment directlyto the court for a fee of $25. The judgmentdebtor pays the judgment by completing theform Request to Pay Judgment to theCourt and submitting the amount of the totaljudgment, including the plaintiff’s costs. Thereare several reasons why you might makepayment directly to the court: (1) You may wishto avoid contact with the plaintiff, (2) You can’tfind the plaintiff, or (3) You may wish to resolvethis immediately. The court (and not thejudgment creditor) then files the form Ac-knowledgment of Satisfaction of Judg-ment, which states that you have paidthe judgment in full.

♦ Installment payments — If the judgmentdebtor is willing to pay the judgment but can’tpay the whole judgment at one time, then thejudgment debtor may pay the amount of thejudgment in installments. The judgment debtorshould first ask the judgment creditor if thejudgment creditor is willing to accept install-ment payments. (See the information oninstallment payments in “Have You Tried toSettle the Dispute Yourself?” on page 6.) If thejudgment creditor insists on receiving the fullamount, or if both parties can’t agree on aninstallment payment plan, the judgment debtorcan file a Request to Pay Judgment inInstallments form. This form must be filedwith a Financial Statement, a financialdeclaration form. Both the Request to PayJudgment in Installments and the Finan-cial Statement will be mailed to the judg-ment creditor by the court. The judgmentcreditor can either oppose your request oragree to it. A hearing may or may not be held.

♦ Protecting property or income fromcollection — A judgment debtor may be ableto legally protect some or all of his or her assets

After the Judgment…Collecting or Satisfying the Judgment

the

dos

and

don’

ts o

f U

SIN

G T

HE

SMAL

L CL

AIM

S CO

UR

T

30

(property) and income from being taken to paythe judgment. It may be possible to protectnecessities of life such as one’s house, furniture,clothes, car (within certain price limitations),certain other personal property, and all or aportion of one’s earnings. In addition, workers’compensation, unemployment, pension, socialsecurity, welfare, or insurance payments areprotected and can’t be taken to satisfy a judg-ment. At your request, the small claims courtclerk or a small claims advisor can give you alist of assets that are protected (exemptassets) in California.

CAUTION: Some assets of a judgment debtor areautomatically protected, but, in the case of others,you must ask the court to determine that the assetsare exempt from enforcement action. To protect theseassets, you must file a Claim of Exemption formwithin 10 days after you receive the notice that thejudgment creditor is taking enforcement action. Youcan obtain the form from the small claims clerk orthe sheriff’s or marshal’s office. List the property youbelieve is exempt. If enforcement action is takenagainst your earnings, list all of your income andexpenses. The court will decide which assets andhow much of your earnings are protected from col-lection.

Ways for Judgment Creditors to Collectthe Judgment DebtThis section highlights ways for you to collect yourjudgment. Several books give a far more thoroughtreatment of this area than is possible here. One isHow to Collect When You Win a Lawsuit, acomprehensive and well-written book availablefrom bookstores and Nolo Press at (800) 992-6656or order online at www.nolo.com. You shouldconsult with a good legal text or expert on judge-ment enforcement procedures before using any ofthe steps discussed below.

The following are some things you can do to try tocollect a judgment debt if the judgment debtorrefuses to pay:

♦ Levy execution on the debtor’s wages —A wage garnishment orders the debtor’semployer to give the sheriff, who then sends you,part of the debtor’s wages until the debt is paid.

To levy execution on (garnish) wages, you needto complete a Writ of Execution form, whichdirects the sheriff to enforce your judgment. It isissued by the small claims clerk. You’ll alsoneed to complete and pay a fee for an Applica-tion for Earnings Withholding Order.

♦ Levy execution on the debtor’s checking orother bank account (bank levy) — A banklevy means that money will be taken from thedebtor’s bank account to pay the judgment.You’ll need the name and branch address of thebank. Get a Writ of Execution from the smallclaims clerk. There is a fee to issue a Writ ofExecution.

♦ Record an Abstract of Judgment — AnAbstract of Judgment puts a lien on anyland, house, or other building the debtor ownsin the county where the Abstract of Judg-ment is recorded. Record the abstract with thecounty recorder in all counties where the debtormay own property. If the property is sold withtitle insurance, the debt will be paid out of theproceeds of the sale.

To record an Abstract of Judgment, takeyour judgment to the small claims clerk, ask foran Abstract of Judgment, have it issued bythe court, and take it to the county recorder torecord.

♦ Have the sheriff do a “till tap” — If thedebtor is a business with a cash register, thesheriff can go to the business and take enoughmoney out of the register to pay the judgmentand the sheriff’s fee. First complete a Writ ofExecution, have the clerk issue it, and take itto the sheriff. Instruct the sheriff to do a till tap.You must know the name and address of thebusiness. If there isn’t enough money in theregister to pay the judgment, you’ll have to payanother fee each time the sheriff goes back.

♦ Put a “keeper” in the debtor’s business —If the debtor is a business, the sheriff will, for afee, remain in the debtor’s business establish-ment and take all the funds that come in untilthe judgment is paid. The keeper can collectcash, checks, and bank credit card drafts. You’llneed the name and address of the business. Geta Writ of Execution, have the clerk issue it,

31www.dca.ca.gov

and take it to the sheriff. Tell the sheriff youwant to put a keeper in the business. You willneed to pay the sheriff substantial fees up-front.If the debtor closes the business while thesheriff is there, you’ll have to pay another feeeach time the sheriff goes back.

♦ Conduct a “judgment debtor’s examina-tion” — In a judgment debtor’s examination,the debtor is ordered to appear in court toanswer your questions about the existence,location, and amount or value of his or hersalary, bank accounts, property, and anythingelse that could be used to pay the judgment. Ifyou wish, you can also subpoena the debtor’sbank books, property deeds, paycheck stubs,and similar documents and require the debtorto bring them to the hearing. At the judgmentdebtor’s examination, you may have the judgeorder the defendant to turn over any assets inhis or her possession. You’ll need to completeand pay a fee for an Application and Orderto Appear for Examination form and, ifyou want the debtor to also bring documents, aSubpoena for Personal Appearances andProduction of Documents. The Applica-tion and Order to Appear for Examina-tion must be served on the debtor by thesheriff or a registered process server. Thedebtor must be within 150 miles of the court. Ifyou do not know where the debtor currentlyresides, see discussion on “Locating the OtherParty” on page 15.

♦ Suspend debtor’s driver’s license — If youobtained a judgment for $500 or less in an autoaccident case and the judgment isn’t paid within90 days after the judgment becomes final, youmay want to consider having the debtor’sdriver’s license suspended for 90 days. Youmust complete form DL17, available from localoffices of the Department of Motor Vehicles. Ifyour judgment is for more than $500, you mayhave the license suspended indefinitely until thedefendant pays the judgment. For furtherinformation, call the Department of MotorVehicles Civil Judgment Unit at (916) 657-7573.

Prohibited Debt Collection PracticesDebtors are protected from certain abusive or

unfair debt collection tactics. Creditors, includingjudgment creditors, can’t do or say certain things.For example, commercial debt collection agenciesand businesses that regularly collect their owndebts are generally prohibited from making false ormisleading statements to collect a consumer debt.It’s also unlawful to harass a consumer debtor, torequest more than basic location information aboutthe debtor from another person, to tell the debtor’semployer or others that the debtor owes a debt(except in the course of wage garnishment pro-ceedings), or to contact the debtor before 8:00a.m.or after 9:00p.m., or at any inconvenient time orplace.

If you have any questions or concerns regardingpermissible debt collection activities, call yoursmall claims advisor, consult an attorney, or call theFederal Trade Commission at its toll free number,1-877-FTC-HELP (1-877-382-4357). You may file acomplaint at the Federal Trade Commission Website at www.ftc.gov.

Once the Judgment Is PaidAfter the judgment debtor pays the judgment(in full or for a lesser amount if the parties agree),the judgment creditor is required to immediatelysign the short Acknowledgment of Satisfac-tion of Judgment portion of the Notice ofEntry of Judgment form and file it with the smallclaims court. This form is like a receipt; it’s neededto end the case.

If the judgment creditor has recorded an Abstractof Judgment (see page 30) in any county wherethe judgment debtor owns real property, a differentacknowledgment form must be used, and thejudgment creditor must sign the form in frontof a notary public.

If the judgment creditor doesn’t file the Acknowl-edgment of Satisfaction of Judgment withthe court, the judgment debtor may ask the smallclaims court for help. If proper proof of payment isprovided (for example, a cash receipt signed by thejudgment creditor, or a canceled check or moneyorder made out to and endorsed by the judgmentcreditor), the small claims court can order aSatisfaction of Judgment at the request of thejudgment debtor.

After the Judgment…

Collecting or Satisfying the Judgment

the

dos

and

don’

ts o

f U

SIN

G T

HE

SMAL

L CL

AIM

S CO

UR

T

32

Glossary

of Terms

Abstract of Judgment — A document issued bythe clerk of the court. When recorded at thecounty recorder, it places a lien on any realproperty owned by the judgment debtor in thatcounty. (Form 982(a)(1))

Acknowledgment of Satisfaction ofJudgment — A form that the judgment creditor

must complete, sign, and file with the courtwhen the judgment is fully paid. (Form SC-130,EJ-100)

appeal — New hearing of all of the claims by thesuperior court.

Application for Waiver of Court Feesand Costs — A form to be completed by a party

who desires the court to waive the filing fee orcourt mailing costs. (Form 982(a)(17))Eligibility rules are provided in an Informa-tion Sheet on Waiver of Court CoverFees and Costs (Form 982(a)(17)(A)).

assignee — A person or business that stands inthe place of the original creditor, such as acollection agency. Assignees can’t sue in smallclaims court.

bank levy — Enforcement of a judgment againstthe judgment debtor’s checking or savingsaccount at a bank, savings association, orcredit union, or other financial institution.

Claim of Exemption — A document filed by thejudgment debtor that lists the property that thejudgment debtor claims is exempt and there-

fore can’t be taken to pay the judgment.(Forms 982.5(5), EJ-160)

claim splitting — Dividing a claim and filingtwo lawsuits to stay below the limits onamounts of claims. Claim splitting is prohib-ited.

costs (or court costs) — Certain fees andcharges a party pays to file and present a caseor to enforce a judgment.

cross claim — A demand by the defendantagainst the plaintiff. The cross claim is usuallyheard at the same hearing as the plaintiff’sclaim. It need not relate to the plaintiff’s claim.

damages — Money claimed or awarded in court,equal to the dollar value of the claimant’slosses.

default — Failure of a party to the lawsuit toattend the small claims court hearing. If theparty was properly notified of the action(served), the judge may consider the evidenceand decide the case without hearing the absentparty’s side.

default judgment — A decision entered whenone party doesn’t attend the small claims courthearing. The other party must still prove his orher claim.

defendant — The person being sued.

Defendant’s Claim and Order to Plaintiff— The form filed by a defendant who asserts aclaim against the plaintiff. (Form SC-120)

defense — The defendant’s facts or argumentsthat demonstrate why the plaintiff isn’t entitledto the relief requested.

dismiss with prejudice — To set aside thepresent action and deny the right to fileanother suit on that claim.

dismiss without prejudice — To set aside thepresent action but leave open the possibility ofanother suit on the same claim.

All form numbers refer toOfficial Judicial Council Forms

33www.dca.ca.gov

Glossaryenforce — To put the judgment into effect by taking

legal steps to bring about compliance.

exempt assets — Property of a judgment debtor thatis legally protected (See Claim of Exemption).

Fictitious Business Name Declaration — A formstating that the business has complied withCalifornia’s fictitious business name registrationlaws. (Form SC-103)

good cause — A sufficient reason. For example, aparty must have good cause for not attending thesmall claims court hearing (better than not having acar or not being able to find a baby sitter).

guardian ad litem — A person appointed by thecourt to represent a minor (under 18 years old).The representative is usually the minor’s parent. Aguardian may also represent a person who ismentally incompetent.

guarantor — An individual or company that hasagreed to be responsible for the acts or omissionsof another.

judgment — The decision of the judge. It states theamount that the judgment debtor owes the judg-ment creditor and may also include other termssuch as the date when payment must be made.

judgment creditor — The party (may be the plaintiffor the defendant) in whose favor a judgment hasbeen awarded.

judgment debtor — The party (may be the plaintiffor the defendant) against whom the judgment hasbeen entered.

Judgment Debtor’s Statement of Assets — Theform listing the judgment debtor’s assets andsources of income. The judgment debtor mustcomplete and send this form to the judgmentcreditor within 30 days after receiving notice of thecourt’s decision. (Form SC-133)

jurisdictional limit — The maximum monetaryamount that may be awarded by the small claimscourt. The limit is $5,000 for most claims, but aclaimant can’t file more than two small claims court

actions for more than $2,500 anywhere in thestate during any calendar year.

keeper — A judgment enforcement procedure inwhich the levying officer takes over the operationof the judgment debtor’s business for a limitedduration to obtain cash and credit card receiptsfor payment to the judgment creditor.

mediation — A process in which a neutral thirdperson helps the parties in a dispute discuss theirproblem and work out their own mutuallyacceptable solution.

mediator — A neutral third person who helpsdisputants arrive at their own settlement. Themediator doesn’t decide the dispute.

motion — A request to the court.

notary public — A person whose most commonfunction is to certify the signature of an indi-vidual.

Notice of Appeal — A request for a new trial of thesmall claims case in the superior court. (FormSC-140)

Notice of Entry of Judgment — A form notifyingthe parties of the judge’s decision in the lawsuit.(Form SC-130)

Notice of Motion to Vacate Judgmentand Declaration — A request that asks the court

to cancel a judgment that was entered and to holda new hearing. (Form SC-135)

Order to Appear for Examination — A courtorder instructing the judgment debtor to appearin court at a specified date and time to answerquestions about his or her property and sourcesof income. (Forms SC-134, EJ-125)

personal service — Handing a copy of courtpapers directly to the person to be served.

plaintiff — The person who files the lawsuit.

Plaintiff’s Claim and Order to Defendant —The form that the plaintiff completes and files tobegin a lawsuit in a small claims court. A copymust be served on the defendant. (Form SC-100)

the

dos

and

don’

ts o

f U

SIN

G T

HE

SMAL

L CL

AIM

S CO

UR

T

34

Plaintiff’s Statement — A form used by smallclaims court clerks in some counties to preparethe Plaintiff’s Claim and Order to Defendant.

pro tem judge — See temporary judge.

process — Court papers that notify a person thathe or she is being sued.

process server — A person who serves courtpapers on a party to a suit.

Proof of Service — A form that must be com-pleted by the person serving court papers on aparty, stating that service was properly made.(Form SC-104)

Request for Dismissal — A form filed with thesmall claims court if a settlement or agreementis made between the parties before the smallclaims court hearing is held. The dismissal willcancel the scheduled court hearing and stopthe proceeding. (Form 982(a)(5))

Request to Correct or Vacate Judgment — Aform filed with the small claims court to modifya recently issued judgment. (Form SC-108)

Request to Pay Judgment in Installments— A form filed, along with a financial declara-tion, by the judgment debtor if the parties can’tagree on an installment payment plan. Thejudgment creditor may oppose or agree to therequest. (Form SC-106)

Request to Pay Judgment to the Court — Aform completed by the judgment debtor to paythe judgment directly to the court. (Form SC-145)

Satisfaction of Judgment — See Acknowl-edgment of Satisfaction of Judgment.

service of process — The giving of formal noticeto the defendant that a suit has been filedagainst him or her, made by certified mail,personal service, or substituted service.

Service of Process — The form used by theplaintiff to give notice (see above) to thedefendant.

settlement — An agreement reached by theparties to a dispute that resolves the disputeand states the terms to which they have agreed.

small claims advisor — An individual hired bythe local county to give free small claimsadvice.

Small Claims Subpoena — An official orderfor a person to appear in court. The personmay be ordered to bring documents. (FormSC-107)

Statement of Assets — See JudgmentDebtor’s Statement of Assets.

statute of limitations — The period of timefollowing an occurrence in which a lawsuitmust be filed.

stipulate — To agree to something; to give one’sconsent.

substitute service — Service of process on aparty by leaving the court papers with someoneother than a party to the lawsuit, valid only ifcertain specified procedures are followed.

temporary judge — An attorney who volunteershis or her time to hear and decide small claimscourt cases. Also called a pro tem judge.

venue — The particular court in which an actionmay properly be brought. Generally, venue isproper in the county in which the defendantresides or does business, in which the accidentoccurred, or in which the contract was enteredinto. In commercial transactions, the place ofperformance is also proper.

wage garnishment — A legal procedure thatrequires the employer of a judgment debtor towithhold a portion of the judgment debtor’swages to satisfy the judgment.

waive — To abandon or give up a claim or a rightor to forgive some other requirements.

Writ of Execution — A document that directsthe sheriff to enforce a judgment. (Form EJ-130)

35www.dca.ca.gov

Small Claims Court ChecklistBefore the Hearing —

For the Plaintiff

1. Contact the other party to discussand try to resolve the problem.

2. Offer to resolve the problem bymediation or other informaldispute resolution method.

3. Familiarize yourself with smallclaims court procedures (readthis booklet, talk to a smallclaims advisor, attend a courtsession).

4. Determine the exact amount indispute.

5. Identify the court where venue isproper.

6. File a Plaintiff’s Claim and Orderto Defendant and pay the filingfee, and, if you’re a business, fileFictitious Business Name Decla-ration, if appropriate.

7. Arrange for service of process oneach defendant. Make sure theProof of Service form is returnedto court before the hearing andthe minimum days of notice aremet.

8. Prepare for court hearing.Organize your thoughts, collectevidence, talk to witnesses, etc.

9. Keep communication open. Tryto resolve the dispute with theother party before the hearing.

10. Attend the hearing and presentyour case.

Before the Hearing —

For the Defendant

1. Contact the plaintiff to discussand try to resolve the dispute.

2. Suggest or agree to try mediationor some other informal disputeresolution method.

3. Familiarize yourself with smallclaims court procedures (readthis booklet, talk to a smallclaims advisor, attend a courtsession).

4. If you have a claim againstthe plaintiff, consider resolvingit at same hearing. (File aDefendant’s Claim and Orderto Plaintiff.)

5. Prepare for court hearing.Organize your thoughts, collectevidence, consult witnesses, etc.

6. Keep communication open. Tryto resolve the dispute before thehearing.

7. If you owe something, try to payit or to work out a payment planbefore the hearing.

8. If necessary, ask court topostpone the hearing to let youand the plaintiff resolve thedispute informally.

9. Try to avoid having a courtjudgment entered against you,since it probably will appear onyour credit record.

10. Attend the hearing and presentyour defense.

After the Hearing —

Plaintiff and Defendant

1. Get a Notice of Entry of Judgmentform in small claims court. Ittells you and the other party howthe judge ruled.

2. If the plaintiff or defendant wasunable to attend the hearing forgood cause, file Notice of Motionto Vacate Judgment and Declara-tion to request a new hearing. Ifa judgment was issued against adefendant who appeared at thehearing, file a Notice of Appeal torequest a new hearing in theSuperior Court.

3. Judgment debtor: Take action tocomply with the judgment (paythe judgment creditor directly ormake payment to the court).After payment, make sure anAcknowledgment of Satisfactionof Judgment is filed by thejudgment creditor with the smallclaims court. If judgment isn’tpaid within 30 days, completeand return the JudgmentDebtor’s Statement of Assets formthat accompanied the Notice ofEntry of Judgment that youreceived.

4. Judgment creditor: File anAcknowledgment of Satisfactionof Judgment with the smallclaims court after the judgmentis satisfied, or take steps tocollect the judgment.

36

California Department of Consumer Affairs

Ordering Information for

Consumer Law Sourcebookfor Small Claims Court

Judicial Officers

Consumer Law Sourcebook for Small Claims Court Judicial Officers (1996).This three-volume, 1,280-page reference handbook is written for use by small claims judgesand temporary judges, superior court judges who handle small claims appeals, courtadministrators, and small claims advisors. It’s also a handy reference book on consumerlaw. The present text does not include changes in the text since 1995. A new updated editionis now being prepared.

To: Department of General ServicesDocuments and PublicationsPO Box 1015North Highlands, CA 95660

Please send me ___ copies of the three-volume set entitled Consumer Law Sourcebookfor Small Claims Court Judicial Officers (Stock No. 7540-957-1305-7), published in1996, at $85 per set, including tax and shipping costs. My check or money order for$__________, payable to “Procurement Publications,” is enclosed.

Print Name: _____________________________________________

Street Address: _____________________________________________

_____________________________________________

City • State • ZIP: _____________________________________________

Daytime Phone: ( ______ )_____________________________________