How do I start my Small Claims case?

Small claims is not always the best solution for your problem, but once you’ve decided to start a Small Claims case, we’re here to help.

Here are some steps you should take to file your Small Claims case.

Have You Asked for the Money or the Property?

Before you can sue in small claims court, you must first contact the defendant (or defendants) if it’s practical to do so. You must then ask for the money, property, or other relief that you intend to ask the judge to award you in court. In legal terms, you must make a “demand” on the other person, if possible. Your request may be made orally or in writing, but it’s a good idea to do it both ways. Always keep copies of any letters and other written communications. It’s wise to send written communications by mail, and to ask the post office for a return receipt that you can keep as evidence.

The California Court system provides a service to help you write your demand letter, you can use it here: Demand Letter Generator

How Much Money Does Your Dispute Involve?

Think carefully about how much money—called damages—you want to request. The judge will ask you to prove that you’re entitled to the amount that you claim. That means that you can only receive a judgment for an amount you can prove. You can prove your claim by almost any kind of evidence: a written contract, warranty, receipt, canceled check, letter, professional estimate of damages, photographs, drawings, your own statements, and the statements of witnesses who come to court with you.

Small claims courts have an upper limit on the amount of money that a party can claim. You can sue for up to $10,000, if you are an individual or a sole proprietor. Corporations and other entities are limited to $5,000. In addition, a party (individuals or corporations) can file no more than two claims exceeding $2,500 in any court throughout the State of California during a calendar year. If you do exceed the two cases over $2,500 per calendar year limit, the court may award you only a maximum of $2,500 in each subsequent case even if your proven damages exceed $2,500. This limit does not apply to a city, county, city and county, school district, county office of education, community college district, local district, or any other local public entity. You are not permitted to divide a claim into two or more claims (called claim splitting) in order to fall within the monetary limits.

If your claim exceeds $2,500, you’ll be asked to check the box on your claim form (Form SC-100) that states that you have not filed more than two actions for more than $2,500 during the calendar year. If you are a natural person (an individual), and therefore can ask for up to $7,500, you still may not file more than two small claims court actions for more than $2,500 during the calendar year.

If your claim is over the small claims monetary limit, you may file a case in the regular superior court, where you can either represent yourself or hire an attorney to represent you. Instead of doing that, you may choose to reduce the amount of your claim and waive (give up) the rest of the claim in order to stay within the small claims court’s monetary limit on claims. Before reducing your claim, discuss your plans with a small claims adviser or an attorney. Once the dispute is heard and decided by the small claims court, your right to collect the amount that you waive will be lost forever.

It’s always wise to ask for the full amount that you can prove, because if the defendant doesn’t appear in court, the judgment that the court issues in your case will be limited to the amount that you have both requested and can prove.

If the case is against a guarantor—someone whose legal responsibility is based on the acts or omissions of another—the maximum claim is $2,500. However, there are two exceptions to the jurisdictional amount of $2,500: (1) If you are a natural person suing a guarantor that charges a fee for its guarantor or surety services, the maximum amount is $6,500. (2) If the person suing is not a natural person, and the defendant guarantor charges a fee for its services, or is the Registrar of the Contractors State License Board because the plaintiff is suing on a contractor’s bond, the maximum amount of the claims is $4,000. In that situation, be sure to name both the contractor and the guarantor as defendants, and prepare to prove a violation of the contractors licensing laws. (See Business and Professions Code beginning with section 7101, and the Contractors State License Board)

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Where Do You File Your Case?

It’s important to file your case in a proper small claims court. In large counties, the county is divided into areas of court location. In those counties, you also must file your case within the proper area of court location within that county.

As a general rule, a case must be filed in the county (and area of court location) in which the defendant resides. This general rule promotes fairness, since it’s usually easier for a defendant to defend a case if it’s filed in the locality where the defendant resides.

However, there are many exceptions to this general rule. (See, for instance, “Automobile accidents“) If you need help deciding in what county or area of court location to file, contact a small claims adviser.

When you file your case, you must state why the court in which you filed your claim is a proper court. Especially in cases that have been filed against a defendant who lives outside the county (or outside the area of court location where the court is located), the judge will carefully look into and decide if the court is a proper one for that case.

If the judge decides that the case was not filed in a proper county—that is, that the venue chosen by the plaintiff isn’t proper—the judge must dismiss the case without prejudice unless all defendants are present in court and agree that the case may be heard at that time. If the case was filed in a proper county, but in the wrong court location within that county, the case either will be transferred to a proper court location within that county, or will be dismissed without prejudice.

The following are some exceptions to the general rule that a case must be filed and heard in a court located within the county (and area of court location, if applicable) where the defendant resides:

  • Automobile accidents — The claim may be heard either (a) within the county and the area of court location in which the accident occurred, or (b) within the county and the area of court location in which the defendant resides. (In this situation, as with many others, there may be more than one court in which an action can properly be filed.)
  • Contract — The claim may be heard in the county or area of court location in which the contract was entered into, where the contract was to be performed by the defendant, unless the claim arises from a consumer purchase.
  • Consumer purchase (claim by seller) — A claim to enforce a debt arising from a consumer purchase can be filed only in the county or area of court location (1) where the consumer signed the contract, (2) where the consumer resided when the contract was signed, (3) where the consumer resided when the action was filed, or (4) where goods purchased on installment credit are installed or permanently kept.
  • Consumer purchase (claim by buyer) — An action also can be filed in localities (1), (2), or (3) immediately above by the consumer against a business firm that provided the consumer with goods, consumer services, or consumer credit. An action also can be filed by the consumer in any of those locations if the suit is based on a purchase that results from an unsolicited telephone call made by the seller to the buyer (including a situation where a buyer responds by a telephone call or electronic transmission).

The exceptions to the general rule that requires filing a case in the county and area of court location where the defendant resides are somewhat complex and difficult to understand. If you intend to file a claim against a defendant outside the county and area of court location where the defendant resides, you should consult with a local small claims adviser to determine if your case falls within an exception to the general rule.

Only the larger counties are subdivided into areas of court location. If a county is not subdivided into two or more areas of court location, an action that can properly be filed in that county can be filed in any small claims court located within the county. A small claims adviser can also show you a map that shows the areas of court location in those counties (such as Los Angeles County) in which there is more than one area of court location within the county.

If there is more than one county or area of court location where your claim can be properly filed, you can select the court that is most convenient for you and your witnesses. If you file in a county or area of court location in which the defendant does not reside, you must give the defendant more advance notice of the hearing (20 days instead of 15 days), and it will take correspondingly longer for your case to be heard.

Special rules govern the place of filing actions against State agencies. A claim may be filed against any State agency in any county in which the California Attorney General maintains an office— Sacramento, San Francisco, Los Angeles, or San Diego. Also, a defendant sued by a State agency can have the case transferred to the county in which the Attorney General has an office that is closest to the residence of the defendant.

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

How Quickly Must You File Your Case?

Most claims must be filed within a set time limit, called a statute of limitations. The purpose of the statute of limitations is to prevent the filing of cases that are too old. Memories fade, witnesses die or move away, and once-clear details tend to blur. As a general rule, you should file your case as soon as reasonably possible. Statutes of limitations are generally not less than one year. If the claim isn’t filed within the time set by the statute of limitations, the judge may be required to dismiss the claim, unless there is a good legal justification for extending the time. If you are thinking about filing an older claim, you should consult a small claims adviser to see if there are facts or circumstances that might permit or require the court to extend the time for filing.

Here are some examples of various statutes of limitations:

  • Personal injury — Two years from the date of the injury. If the injury is not immediately discovered, it is two years from the date it is discovered or should have been discovered. A minor has two years from his or her 18th birthday to file a case.
  • Oral contract — Two years from the date the contract is broken.
  • Written contract — Four years from the date the contract is broken.
  • Government entity — Before you can sue a government entity, you must send a written claim to the entity, called a “Government claim.” The claim is legally required to contain certain pieces of information. Government Code section 910 lists what types of information are required to be in the claim. Some governmental agencies may have a fillable governmental claim form available for use. Please check with the governmental agency in question to see if a governmental claim form is available. If you do not file the government claim first, the small claims court must reject or dismiss the action. If the government claim is against the State of California, it must be sent to the Victim Compensation and Government Claims Board (VCGCB); follow the instructions on its website at www.governmentclaims.ca.gov. A government claim for personal injury or personal property damage must be sent to the government entity within six months of the incident that caused the damage. A government claim for breach of contract or injury to real property must be sent within one year of the incident that caused the damage. If the entity rejects the claim, you must file a court action within six months of the mailing or personal service of the rejection notice. If you do not file within that time frame, you may lose your right to sue. An agency has 45 days to make a decision on the government claim. If no decision is made after 45 days, the claimant should treat the non-response as a rejection, and file their suit immediately.

Statutes of limitations, and the court rules that interpret and apply them, are complicated, and exceptions may apply to your claim. For example, if the defendant lived outside the State or was in prison for a time, the period for filing your claim may be extended. Or you might assume that a contract was an oral contract, which has a limitation of two years, while it may be interpreted as a written contract with a limitation of four years. If you’re unsure about whether your claim is too old to file, you may file it and let the judge decide whether it was filed too late. Better yet, you should check with a small claims adviser before you file.

How Do You Name the Defendant?

Try to name the defendant or defendants correctly when you prepare your claim. If it’s possible that you may need to use the court process to enforce a judgment in your favor, it is important that the defendant is named correctly. Otherwise your judgment may be difficult to enforce. If you don’t know the defendant’s correct name and only learn about it later, you can ask the judge to amend or modify your claim at the hearing. You also can amend the judgment at any time to show the judgment creditor’s correct name.

If you’re not sure which of several possible defendants is responsible for your claim, name each person you believe is liable. The court will decide whether the people you named are proper defendants and legally responsible.

Here are some examples of ways to name a defendant:

  • An individual – Write the first name, middle initial (if known), and last name. Example: “John A. Smith.” If an individual has more than one name, list all of them (separated by the words “also known as” or “aka”).
  • A business owned by an individual – Write the names of both the owner and the business. Example: “John A. Smith, doing business as Smith Carpeting.” If you win your case, you can enforce your court judgment against assets (such as a checking account balance) in the names of either John A. Smith or Smith Carpeting. Note: Some banks may not honor a judgment unless the name on the judgment matches exactly the name on the bank account. In this situation, the plaintiff should request the court to amend the name of the defendant to reflect the name on the account. Obviously, this does not apply if the plaintiff attempts to ask the court to completely change the name of the defendant as a way to add someone else on the judgment.
  • A business owned by two or more individuals – Write the names of both the business and the owner on each defendant line of Form SC-100. Example: If there are two owners for Suburban Dry Cleaning, the plaintiff would list each respective owner in a different defendant name slot in Form SC-100. Defendant Name slot #1: John A. Smith, Doing Business As Suburban Dry Cleaning. Defendant Name slot #2: Mary B. Smith, Doing Business As Suburban Dry Cleaning.
  • A corporation or limited liability company – Write the exact name of the corporation or limited liability company, as you know it, on the claim form. You need not name the individual owners of the corporation or limited liability company. However, you must include either an Inc. (for corporations), LLC (for limited liability companies), LLP (limited liability partnerships), or LP (limited partnerships) at the end of the name of the business entity. Example: “Fourth Dimension Graphics, Inc.” If a corporation operates through a fictitious business name or a subsidiary, you must name the name of the corporation and not necessarily the fictitious business name or subsidiary. Example: Middle Easter Quality Petrol Inc. doing business under the fictitious business name of Fast Gas would be listed simply as Middle Easter Quality Petrol Inc. However, you may have to prove at trial the relationship between the subsidiary or the fictitious business name and the listed corporation.

If you would like to delete the names of one or more defendants from your claim, you can use the dismissal form that you received with your claim or a request for dismissal (Form CIV-110). Be sure to indicate that you are dismissing the case only against certain named defendants, and that you are not dismissing the entire case. As a courtesy, you should inform the dismissed defendants that they need not appear in court by providing them with a copy of the filed dismissal.

  • A vehicle accident defendant – If you’re suing to recover the losses you sustain in a motor vehicle accident, you should name both the registered owner or owners, and the driver. Example: If the owner and the driver are the same person, “Joe Smith, owner and driver.” If the owner and driver are not the same, “Lucy Smith, owner, and Betty Smith, driver.”

If you would like to amend your claim, and it hasn’t yet been served, it is only necessary that you (a) prepare a new claim form (Form SC-100), (b) file the new claim form, and (c) arrange for someone to serve it on the defendant. When you go to the small claims court, be sure to bring your copy of the original claim form (Form SC-100). If any of the defendants have been served with the original claim, you’ll first need to submit a letter to the small claims court requesting the court’s permission to prepare and serve an amended claim.

If you would like to delete the names of one or more defendants from your claim, you can use the dismissal form that you received with your claim, or a request for dismissal (Form CIV-110). Be sure to indicate that you’re dismissing the case only against certain named defendants, and that you’re not dismissing the entire case. As a courtesy, you should inform the dismissed defendants that they need not appear in court.

Locating the Other Party

You need the defendant’s address for several reasons. You may want to contact the other party to attempt to settle the case before filing the action and also to communicate your pre-filing demand. Then, after you file your case, you’ll need an address to give to the process server to serve your claim form on the defendant and to give to the court in order for it to serve further notices. If you win your case, you’ll need an address where you can send a letter requesting payment. Here are several important sources of information for finding out where the other party lives or works.

Telephone and City Directories

The most obvious source of addresses, and one often overlooked, is the telephone directory. City directories are also excellent sources of information. For defendants living outside your area, try www.yellowpages.com or other Internet telephone directories (see page 20). If the only information you have concerning the other party is a telephone number, and the number is one that is listed in the telephone directory, you may use reverse telephone directories in your public library or online. In addition, directory assistance offers a reverse directory.

U.S. Postal Service Records

The regulations of the U.S. Postal Service (at 39 C.F.R. section 265.6(d)(1),(5)) provide that the Postal Service will give you the new address of someone who has filed a change of address order (PS Form 3575). You can obtain this information if you need the new address in order to have service of process delivered on that person, and you submit a completed and signed Request for Change of Address or Boxholder Information Needed for Service of Legal Process. The request form can be obtained from your local post office or the U.S. Postal Service’s Web site at www.usps.gov. The regulations of the U.S. Postal Service (at 39 C.F.R. section 265.6(d)(4)) also provide that the Postal Service will give you the name and street address given by an applicant for a Postal Services mailbox in the Service’s application form (PS Form 1093). As with change of address information, you can obtain that information if you need it for the service of process on the applicant for the Postal Service mailbox, and you submit a request form—the same form used for change of address information.

The request form requires you to provide the Postal Service with certain information about the lawsuit, including the names of the parties, the court in which the case will be heard, the docket number of the case (if already filed), and the capacity in which the Postal Service’s customer will be served (e.g., as a party or witness). If you are an individual person representing yourself, you need not answer question 5 (which asks for the law that authorizes you to serve court papers). If a corporation is suing, the law that authorizes service must be stated.

You must mail or deliver the completed request form to the correct post office (never a post office franchisee) accompanied by a self-addressed return envelope with postage fully prepaid. No fee is required. While the U.S. Postal Service reserves the right not to disclose the address of an individual for the protection of the individual’s personal safety, you probably will receive the requested information in due course. Since the Postal Service retains forwarding address orders for only 18 months, the Postal Service may be unable to respond to a request for change of address information made after that time.

The request form that you will sign requires you to certify that the information that you request is needed and will be used solely for service of legal process in conjunction with an actual or prospective lawsuit. For that reason, it’s essential that the information that you receive be used for that and no other purpose. A violation can result in substantial criminal penalties.

Secretary of State Records

The Secretary of State’s website www.ss.ca.gov includes records of general partnerships, limited partnerships, limited liability companies, and limited corporations. The Secretary of State also maintains a record of the names and addresses of the officers of corporations and their agents for service of process, any of whom can be served with the claim in a small claims action. For instructions on how to obtain this information, call (916) 653-6814 or (916) 657-5448 (recorded message). You can download instructions and an order form from the Secretary of State’s website at www.ss.ca.gov. For an extra charge, the Secretary of State will fax the requested information to you.

It is possible the Secretary of State may not have the information for the corporation’s agent for service because either the corporation did not list an agent or did not register with the Secretary of State. If you are unable to find the agent for service of a corporation on the Secretary of State website, you would need to go to the Secretary of State’s office and ask them to do a search for you. If the Secretary of State’s office is unable to find the agent after the search, they will issue a certificate of non-filing. It is necessary that you file your complaint with that certificate of non-filing with the court. In addition, you must ask the court for permission to serve the corporation through the Secretary of State. Please verify with the Secretary of State’s office as to any fees charged for receiving the complaint. You should also verify with your local small claims advisors as to the required forms necessary to ask for court authorization to serve the Secretary of State.

Also, corporations with a “forfeited” status are not considered to be registered with the Secretary of State for the purpose of small claims service. However, corporations with a “suspended” status are considered to be registered with the Secretary of State for the purpose of small claims service.

Department of Motor Vehicles Records

The Department of Motor Vehicles (DMV ) will not release residential addresses to litigants and process servers.

Some situations in which the DMV will release residential addresses are:

  • To courts and other governmental entities – However, courts will not obtain the residential addresses for litigants.
  • To law enforcement agencies – Many law enforcement agencies will request the residential addresses of motorists or vehicle owners for use in preparing accident reports.
  • To an attorney – The attorney must state under penalty of perjury that the residential address of a driver or registered owner is necessary to represent a client in a lawsuit involving the use of a motor vehicle.
  • To an insurance company – An insurance company may obtain the address of a motorist or vehicle owner who was involved in an accident with the insured, or if the motorist or vehicle owner signed a waiver.
  • To a financial institution – A financial institution must have obtained a written waiver from the individual driver or vehicle owner whose residential address is requested.
  • To a vehicle dealer – A vehicle dealer may obtain the residential address of a motorist for the purpose of completing registration transactions or documents.
  • To a vehicle manufacturer – A vehicle manufacturer may obtain the residential address of a motorist for the purpose of safety, warranty, emission, or product recall if the manufacturer offers to make and makes any changes at no cost to the vehicle owner.
  • To a researcher – A person who has provided assurance that the residential address will be used only for statistical research or reporting purposes, and verifies that no person will be contacted by mail or otherwise at the residential address.
  • To a lien sale – A person conducting a lien sale may obtain the residential addresses for the purpose of notifying the registered and legal owners and all persons who claim an interest in a vehicle of an impending lien sale or intent to dispose of the vehicle.

County Business Records

If the person you’re seeking owns real property, you can search the tax rolls of the county assessor’s office. The tax rolls list the names and addresses of property owners in the county by both the owner’s name and the address of the property. The county registrar or recorder maintains a listing of property owners by name and location of the property owned.

The county clerk maintains a listing of fictitious business statements. The statement lists the names and addresses of the owners of businesses operating under a name different from the owners’ names (called a “fictitious business name”). Check the computer listing of the business to obtain the owner’s name and certificate number, and ask the clerk to assist you in finding the certificate in the files. The certificate contains the owner’s name and address. In some counties you can obtain this information by mail. Check with the clerk of your county to determine availability, cost, and the procedure to follow. You can find the address and phone number of the county clerk’s office for your county in the Government Pages of your phone book or online. It’s usually listed in the county section under the heading “Assessor-County Clerk- Recorder” or “County Clerk.” The records of the county assessor and county recorder also may include that information.

City Business Records

The tax and permit division of the office of the city clerk maintains a list of the names and addresses of most businesses that are licensed to do business in a city. You can find the address and phone number of the city clerk’s office in the government pages of your telephone book. It’s usually listed in the city section under the heading “clerk.” Many cities now have Web sites that list names and addresses of persons licensed to do business in the city.

Internet Databases

The Internet can be used to locate an individual or business. The major Internet browsers have search capabilities that can be productive if you know an individual’s correct name. Reverse directories also now exist online. Most regulatory agencies’ websites have directories of their licensees.

While some website addresses are given in this handbook, Internet resources change constantly. Some are added and some are deleted almost every day. Therefore, it also may be helpful to identify newly available Internet resources. Following are potentially useful resources. No endorsements or recommendations should be implied. Most of the services are free.

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Reference: http://www.dca.ca.gov/publications/small_claims/

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