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Preliminary Considerations

What is a Small Claims Court?

What are parties?

Who can sue and who can be sued?

Can I sue the guardian of a minor child who injured my property or me?

Can someone represent me of the other party?

What can I sue for in Small Claims Court?

How much will it cost me?

Can I get my costs back?

How long will it take to have my case heard?

Can I settle the case with the other side before the trial?

Can I file an appeal if I lose the case?

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What is small claims court?

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.

What are parties?

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 again.

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 that decision.

Who can sue and who can be sued?

Generally, any 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, an 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.

An assignee 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 court.

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.

Can I sue the guardian of a minor child who injured my property or me?

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."

Can someone represent me or the other party?

As a general rule, a party must personally appear in court. In the following cases, however, a party may be represented by another:

Legal entity

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.

Sole proprietorship

A sole 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 person.

Rental property owner

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.

Non-resident 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.

Military personnel

Active duty military personnel can also appear by either submitting a declaration or sending a non-attorney representative, or both.

Inmates

A person incarcerated in jail or prison can also appear by either submitting a declaration or sending a non-attorney representative, or both.

Spouse

A spouse may represent the other if they have joint interest in the case and a declaration from the represented spouse authorizing representation is submitted.

What can I sue for in small claims court?

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.

How much will it cost me?

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.

Can I get my costs back?

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.

How long will it take to have my case heard?

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.

Can I settle the case with the other side before the trial?

You and the other side are strongly encouraged to settle the dispute between yourselves.

Can I file an appeal if I lose the case?

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.

 

 
Superior Court of California, Kings County
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