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Small claims court
was created so you can resolve disputes quickly and cheaply in an informal
setting. Attorneys cannot appear in court for anyone. However, you may
seek the assistance of an attorney before you go to court.
The party filing the
claim is the plaintiff.
The person being sued is the defendant.
If you are the
defendant and are filing a Claim of Defendant, you will remain the
defendant and the plaintiff will remain the plaintiff.
The Small Claims
court clerks can answer many kinds of questions and provide the forms you
need; however, they are prohibited by law from giving legal advice. The
Small Claims Court Advisor provides legal advice free of charge to both
the plaintiff and the defendant.
If you choose Small Claims court to resolve a dispute and you are the
plaintiff, you give up the right to have another court review the Small
Claims judge's decision. In other words, the plaintiff has no right of
appeal. So if you should lose, that is probably the end of the case.
However, the person or entity you sue (defendant) may appeal the judge's
ruling. When such an appeal is filed, the entire case will be heard
If you are the
plaintiff and a Claim of Defendant is filed (the defendant sues you on the
same case) and you have a judgment against you, you may file an appeal on
person or entity (for example, businesses, partnerships, or government
agencies) can sue or be sued. A person must be 18 or older and be
considered mentally competent.
For minors or those
declared mentally incompetent by a court, a guardian ad litem must
first be appointed to represent them. If such a person is the plaintiff,
Application and Order for Appointment of Guardian Ad Litem (982(a)(27)
must be filed along with the claim. If a defendant is such a person, then
the plaintiff must serve a blank petition form along with the lawsuit
papers for the defendant's guardian (or a court-appointed conservator) to
complete the petition and file with the court.
In a motor vehicle
accident, both the driver and the registered owner of a vehicle that
caused the accident may be sued.
of a claim (someone or some entity that has been given the rights to a
claim - for example, a collection agency) cannot sue in small claims
A federal government
agency cannot be sued.
As a general rule,
small claims court does not have jurisdiction over persons or entities
located out-of-state. That is, it does not have the ability to exert its
legal authority over such defendants. The two narrow exceptions to this
general rule that the court does have jurisdiction are (1) over a
non-resident owner of real property located in California in a case
involving that property, and (2) over a non-resident driver who was
involved in a car accident on California public roads.
You normally cannot
hold a parent or a guardian liable for damages caused by a minor. In rare
cases, where the minor acted with "willful misconduct" the court can hold
the parent or guardian liable. If you are not sure whether there was
willful misconduct involved, then you should sue both the minor and the
guardian separately. For example, if Teddy Behr, a minor, threw a rock
through your living room window, you may try filing your claim against
both Teddy Behr and John Smith, his guardian. Name the defendant as "Teddy
Behr, a minor by and through John Smith, guardian ad litem", and, as a
separate defendant, "John Smith."
As a general rule, a
party must personally appear in court. In the following cases, however, a
party may be represented by another:
A legal entity (for
example, a corporation, a registered partnership or a trust) can be
represented by its employee, officer, director, partner or trustee.
However, the representative cannot be an attorney or someone who sole duty
is to represent the entity in court.
proprietorship (a business that is owned by one person or one legal
entity) can be represented by its employee only if the claim can be
resolved by evidence of an account and there is no other issue in the
case. In this case, the representative employee must be able to testify
(1) that the account was prepared as a part of the sole proprietorship’s
normal business practice, (2) that the accounting entries were made at the
time of the transaction or soon thereafter, and (3) that the information
about the account and the way it is prepared indicate the entered
information is trustworthy.
In other words, a
sole proprietorship can be represented by its employee if, and only if,
the claim deals only with money owing to or owed by the business and the
employee can testify as to the trustworthiness of its bookkeeping
practices and the entries on the particular account. For example, a body
shop's bookkeeper may represent it (or its owner) in a case to collect on
a customer's account, but if the lawsuit could involve the customer
alleging he did not pay because the body shop did unauthorized work, the
case involves other issues of fact and the body shop's owner must come in
A property manager
may represent the owner of rental property if she was not hired to
represent the owner in court but rather hired principally to manage the
property, and the claim relates to the rental property. It is advised that
the property manager bring some evidence of this - by way of a property
management service contract or an affidavit from the owner.
real property owner
A non-resident owner
of real property that is located in California may appear in a lawsuit
involving that property by either submitting a declaration or sending a
non-attorney representative, or both.
Active duty military
personnel can also appear by either submitting a declaration or sending a
non-attorney representative, or both.
incarcerated in jail or prison can also appear by either submitting a
declaration or sending a non-attorney representative, or both.
A spouse may
represent the other if they have joint interest in the case and a
declaration from the represented spouse authorizing representation is
You can sue for
money damages up to $5,000 (current as of July 1, 2000), for the court to
order the other side to do something, or for the court to cancel a
contract. If your claim is for more than $5,000, then you can either bring
your lawsuit in the civil division of the superior court or sue in small
claims court and waive your rights to any amount beyond the $5,000 limit.
If you are suing a
guarantor, someone who became liable to you because he guaranteed
that another person would pay or do something for you, the maximum you can
sue for is $2,500. As of January 1, 2000, the maximum is $4,000 if the
guarantor charged a fee for its service. An example would be an insurance
company that became a guarantor by issuing a bond for a fee.
Also, you cannot
file more than two small claims lawsuits for more than $2,500 in a
calendar year. For example, if you had already filed a case in March for
$3,000 and in May for $4,000, you have to wait until the following year to
file any claim over $2,500 in a small claims court anywhere in the state.
If you want the
court to order the defendant to do something, then you must also ask for a
money award in the event the defendant does not obey the order. For
example, if you are suing your neighbor for the return of your lawn mower
he borrowed, you must ask the court to order the neighbor to pay you the
value of the mower or return it to you.
Even if you wish to
cancel a contract, you should also for money damages as an alternative
judgment the court can give. For example, if you bought a car from a
private person only to find that the car has many mechanical problems and
cannot be "smogged," the sale can be voided if the seller did not provide
you with a valid smog certificate that was obtained within 60 days prior
to the date of sale. In that case, consider suing for the cost of repairs
it would take to make the car "smoggable" or to cancel the sale. Should
you win the lawsuit, this sort of alternative judgment will give you more
options in enforcing the judgment.
The total cost will
vary, but the basic costs involve fees for filing and serving the lawsuit
papers. The filing fee you pay to the court is $22.00. However, if you
have filed 13 or more claims in the past 12 months, then you must pay
$66.00 for each claim after the first 12 claims.
You may also have to
pay for service of process - having the lawsuit papers delivered to the
other side. It will cost you $8.00 per defendant to have the court attempt
the service by certified mail, or usually between $20.00 to $50.00 per
defendant to hire the Sheriff’s Department or a licensed private process
server. You can also ask someone you know - a friend or a relative - to
serve the papers for you as long as that person is 18 or older and not a
party to your claim.
There may be other
expenses involved as the case proceeds, especially if you get a judgment
in your favor and the other side does not voluntarily pay you.
For the party being
sued, there is generally no cost involved unless you ask the court for
certain things. For example, it will cost you $10.00 to ask for a
postponement of the court date.
In most cases, you
can get back your filing fees, reasonable costs for service of process
costs, and witness fees as a part of the judgment if you win the lawsuit.
While judicial officers routinely include them, you should verbally ask
the judicial officer to do so at the time of the trial and bring receipts.
Usually a case will
be scheduled for a trial 30-45 days from the time you file the claim. If
the other side lives outside the county, then the case is scheduled for
60-75 days later because of the extra time required in service of process.
You and the other
side are strongly encouraged to settle the dispute between yourselves.
You cannot file an
appeal if you were the plaintiff, or the defendant losing a countersuit.
You also cannot file
an appeal if you lost because you did not show up at the trial. Instead,
you must file a Motion to Vacate Judgment if you are a defendant. If you
were the plaintiff and did not show up, the court probably dismissed your
case without prejudice. In that case, you may re-file your claim and start
the entire process all over again but you will be required to pay again
all of the costs associated with filing a new claim.