Small Claims Ultimate Guide (SCUG)

Transcription

1 Small Claims Ultimate Guide (SCUG) [Scug: n, A place of refuge] v.1.1 Written by MAI In conjunction with Legal Aid Society of Orange County, Legal Resolutions Center Disclaimer: By reading or utilizing any portion of this document, you are acknowledging and agreeing to the terms that the information in this document is solely procedural advice. The Small Claims Ultimate Guide (SCUG) is not, and should not be treated as, legal advice. Additionally, there may be information within this document that may not be accurate or may be different than current practices or procedures. As such, Legal Aid Society of Orange County and any employees, volunteers, or any other persons involved with this project are not responsible for any inaccuracy that may be within this document.

2 Small Claims Ultimate Guide (SCUG) (v. 1.1) 2 Table of Contents Rules for Small Claims... 5 California Small Claims Act:... 5 California Rules of Court for Small Claims:... 5 Superior Court of Orange County Local Rules of Court:... 5 Filing a Small Claim (SC)... 6 Basic SC Terms:... 7 Information for the Small Claims Plaintiff:... 7 What You Need to File a Small Claim:... 7 The First Step: Inform the Defendant You Are Going to Sue... 7 Who Are You (Legally Speaking) and How Much You May Sue For?... 8 How Many Small Claims May I File?... 9 Statute of Limitations for Small Claims:... 9 Identifying the Entities for a Small Claim:... 9 How to Find Basic Information on the Defendant: Listing Defendants on the Plaintiff's Claim and ORDER to Go to Small Claims Court (SC-100): Venue: Damages to List in the Small Claims: What if I Work All Week (M-F, 9:00-5:00)? How Can I File a Small Claim? Methods for Filing: Requesting a Fee Waiver: Serving and Challenging PLAINTIFF Serving the Defendant(s) with the Plaintiff's Claim and ORDER to Go to Small Claims Court (SC-100): Serving a Corporation or a LLC: Agent for Service of Process Methods for Service: If Service Is to Be Done to a Minor: Out-of-State Service: Amendments to the Small Claim: Defendant How to Countersue: How to Challenge Venue: Postponing: I Am Unsure If My Small Claims Case Has Been Postponed: Dismissing: Preparing for Trial Subpoena: Small Claims Subpoena and Declaration (SC-107): Authorization to Appear (SC-109): Preparing for the Day of Trial: What If I Do Not Speak English Well? I Need Auditory Accommodation (Deaf, Hard of Hearing, Other): Day of Trial Day of Trial:... 28

3 Small Claims Ultimate Guide (SCUG) (v. 1.1) 3 Presenting in Front of the Judge: End of Trial and the Judgment: Judgment and Appeal KEY TERMS: For Additional Information: Judgment: Filing an Appeal: The Appeal Trial: Default Judgments and Appeals for Default Judgments: COLLECTING: Correcting a Judgment and Interest on a Judgment KEY TERMS: Your Judgment Does NOT State the Judgment Debtor s Correct Name: Correcting the Judgment Debtor s Name on a Judgment If There Is a Clerical Error: Correcting the Judgment Debtor s Name on a Judgment If There Is NO Clerical Error: 35 Post Judgment Interest: COLLECTING: Judgment Debtor and Protection KEY TERMS: For Additional Information: Options for the Judgment Debtor: How a Judgment Debtor Can Protect Certain Assets: Judgment Debtor s Rights: Protection Against Prohibited Debt Collection Practices If the Judgment Creditor Does Not File the Acknowledgement of Satisfaction after the Judgment Debtor Pays the Judgment: Update Your Credit Report COLLECTING: Judgment Creditor and Collecting KEY TERMS: Collecting the Judgment: Overview Recovering Post Judgment Costs: Memorandum of Costs (MC-012) What if the Judgment Debtor Pays the Judgment to the Court Debtor s Exam: Getting More Information from the Judgment Debtor Collecting from an Individual For More Information on Collecting Collecting from an Individual: Wages Collecting from an Individual: Levy the Judgment Debtor s Checking or Bank Account Collecting from an Individual: Property Liens Collecting from a Business For More Information on Collecting Collecting from a Business: Till Tap Colleting from a Business: Keeper Collecting from a Business: Levy the Judgment Debtor s Checking or Bank Account May I File a Wage Garnishment on a Judgment Debtor s Spouse or Domestic Partner:. 49 Suspend a Judgment Debtor s Driver s License for 90 Days or Indefinitely: Opposing a Claim of Exemption: Renewing Your Judgment:... 51

4 Small Claims Ultimate Guide (SCUG) (v. 1.1) 4 The Judgment Creditor is Satisfied with the Amount Received: Ending a Judgment More Information Additional Information Additional Information: Serving a P.O. Box: Auto Accidents (Includes Out-Of-State Drivers): Suing over Bad Checks (Bounced Checks and Stop Payments):... 57

5 Small Claims Ultimate Guide (SCUG) (v. 1.1) 5 Rules for Small Claims California Small Claims Act: California Code of Civil Procedure (CA CCP) 116 Title 1, Chapter 5.5, Articles 1-9 o (CCP ) Excerpt from CCP : This chapter shall be known and may be cited as "The Small Claims Act." The Legislature hereby finds and declares as follows: (a) Individual minor civil disputes are of special importance to the parties and of significant social and economic consequence collectively. (b) In order to resolve minor civil disputes expeditiously, inexpensively, and fairly, it is essential to provide a judicial forum accessible to all parties directly involved in resolving these disputes. (c) The small claims divisions have been established to provide a forum to resolve minor civil disputes, and for that reason constitute a fundamental element in the administration of justice and the protection of the rights and property of individuals. (d) The small claims divisions, the provisions of this chapter, and the rules of the Judicial Council regarding small claims actions shall operate to ensure that the convenience of parties and witnesses who are individuals shall prevail, to the extent possible, over the convenience of any other parties or witnesses. California Rules of Court for Small Claims: California Rules of Court: Title Three. Civil Rules. Rules Superior Court of Orange County Local Rules of Court: Superior Court of Orange County Local Rules of Court: Division 3. Civil Rules. Chapter 3 Small Claims. Rule

6 Small Claims Ultimate Guide (SCUG) (v. 1.1) 6 Filing a Small Claim (SC)

7 Small Claims Ultimate Guide (SCUG) (v. 1.1) 7 Basic SC Terms: Plaintiff: Defendant: The party who has filed a small claims action. The term includes a Defendant who has filed a claim against a Plaintiff. The party against whom the Plaintiff has filed a small claims action. The term includes a Plaintiff against whom a Defendant has filed a claim. Information for the Small Claims Plaintiff: For additional information on Small Claims, read: o Information for the Plaintiff (Small Claims) (SC-100-INFO) What You Need to File a Small Claim: 1. Plaintiff's Claim and ORDER to Go to Small Claims Court (SC-100) 2. The Plaintiff s legal name and address Need information for all listed Plaintiffs 3. The Defendant s legal name and address Need information for all listed Defendants If you are suing a Corporation/LLC, you need the information for the Agent for Service of Process Agent for Service of Process is explained in the Serving and Challenging section of this guide 4. The amount of money you are suing for and a short description of why you are filing your claim 5. The appropriate courthouse venue for your claim You need to file your claim at the courthouse that has jurisdiction over your claim 6. Plaintiff s/plaintiffs signatures The First Step: Inform the Defendant You Are Going to Sue Inform the prospective Defendant of the issue before you sue o The Defendant may be willing to settle the issue o You may inform the Defendant through various means For example, a General Demand Letter may be used General Demand Letter: How to: 1. Use a computer or a typewriter 2. Start by briefly reviewing the main facts of the dispute in your letter 3. Be polite You may regret any aggressions in your letter as the letter may be used in your case at the trial 4. Ask for exactly what you want and set a reasonable deadline

8 Small Claims Ultimate Guide (SCUG) (v. 1.1) 8 5. Keep a copy of this correspondence for your records o For an online module to write a Demand Letter: o < Who Are You (Legally Speaking) and How Much You May Sue For? Filing as an Individual (as a Natural Person ) or Sole Proprietor: o May sue up to $7500 o This include a DBA (Doing Business As) that is organized as a Sole Proprietor NOTE: If a corporation, a LLC, or a DBA that is organized as a corporation or a LLC is listed as one of the Plaintiffs, then the Plaintiffs may only sue up to $5000 for the claim For a Sole Proprietor who is a DBA and suing: In addition to filing the Plaintiff's Claim and ORDER to Go to Small Claims Court (SC-100) [or the Defendant s Claim and ORDER to Go to Small Claims Court (SC-120) if you are the Defendant and you are countersuing], the DBA MUST fill out the Fictitious Business Name (Small Claims) (SC-103) o The Fictitious Business Name (Small Claims) (SC-103) requires the DBA s: Statement number, Expiration date, and Type of business ( does business as ) In this case, it should be an individual Filing as a Corporation or Other Business Entity: o May sue up to $5000 o This include a DBA (Doing Business As) that is organized either as a corporation or as a LLC For a Corporation or a LLC Filing as a DBA: In addition to the Plaintiff's Claim and ORDER to Go to Small Claims Court (SC-100) [or the Defendant s Claim and ORDER to Go to Small Claims Court (SC-120) if you are the Defendant and you are countersuing], the DBA MUST fill out the Fictitious Business Name (Small Claims) (SC-103) o This form requires the DBA s: Statement number, Expiration date, and Type of business

9 Small Claims Ultimate Guide (SCUG) (v. 1.1) 9 How Many Small Claims May I File? You may file UNLIMTED small claims, HOWEVER THERE ARE TWO EXCEPTIONS: o Exception #1: Only 2 of those small claims can be above $2,500 in a CALENDAR YEAR ex. Dec. 31 st 2011 is on a different calendar year than Jan. 1 st 2012 o Exception #2: After filing 12 small claims within a 365 days period (not a calendar year), each additional small claims filing fee cost $100 regardless on the amount you are suing for Statute of Limitations for Small Claims: Personal Injury Oral Contract Written Contract Property damage Fraud Malpractice 2 years from the date of the injury. If the injury is not immediately discovered, then it is two years from the date it is discovered. A minor has 1 year from his or her 18th birthday to file a case. 2 years from the date the contract is broken. 4 years from the date the contract is broken. 3 years from the date the property was damaged. 3 years from the date of discovery. 1 year from the date of malpractice. Before you can sue a government entity, you must file a written claim with that entity. Government Entity Must be filed within 6 months for cases involving personal injury and/or damage to personal property with the government entity. 1 year for contracts including breach of contract and damage to real property. If your claim is rejected by the government entity, you must file a court action within 6 months of the rejection, or you will lose your right to sue. Identifying the Entities for a Small Claim: Name all entities that you believe are responsible o The Judge will determine who is responsible and by how much

10 Small Claims Ultimate Guide (SCUG) (v. 1.1) 10 How to Find Basic Information on the Defendant: Finding Information on a Person: How to Locate a Person or Business Write a letter to the other party with the last known address. UNDERNEATH THE RETURN ADDRESS, write "Address...that has moved: Correction Requested. Do Not Forward." The Post Office will then receive your letter, provide you with the new address if there is one on file, and then return it to you....with only their phone number:...post Office box: with their real property: Use the Reverse Directory at your local library to find their address. There may be some websites that allow you to do this. You can request the name, address, and phone number of the holder of a post office box if you certify that it is used for service of process. To do this, fill out the Change of Address or Boxholder Request form found on the USPS website < Search the tax rolls at the Country's Assessor's Office in the county for which you believe the person owns real property. Tax rolls list the names of property owners by both the owner's name and the address of the property. The County Recorder's Office also maintains a listing of property owner's names and location of property. Finding Information on a DBA: o How to find this information: City Hall s Business License Department, County Recorder s computers, or County Clerk s Fictitious Business Name Index Finding Information on a Corporation or a LLC: o Secretary of State website: Make sure to perform both a corporation search and a LLC search for the business that you are trying to retrieve information on o Secretary of State s Phone Number: (916) o City s Business Licensing Bureau o City or County Tax Assessor s Office

11 Small Claims Ultimate Guide (SCUG) (v. 1.1) 11 Listing Defendants on the Plaintiff's Claim and ORDER to Go to Small Claims Court (SC- 100): Naming Individuals: o Ex. John Smith o Info needed: Full legal name DO NOT USE suffixes when naming (ex. Mr., Jr., Esq., etc.) o If the individual has more than one name List all of them, separated by the words also known as or aka o If you find out the Defendant goes by another name after serving then you may ask the Judge at the day of the trial to amend the Plaintiff s name CCP (b) o If you do not know the Individual s address, then you need to find out the Defendant s current address before you may file the claim Naming a DBA (Doing Business As): o Info needed: Full Legal name of the Owner(s) Business name Preferred business address that is not a PO Box o Where to find this information: City Hall s Business License Department, County Recorder s computers, or County Clerk s Fictitious Business Name Index o How to write the DBA on the form: ***Owner s name*** DBA ***Business name*** Ex. John Doe DBA XYZ Cleaners NOTE: The use of Inc. or Co. does not change a business status from a DBA if the entity is a DBA o If there are two or more business partners, then list each partner s name with the phrase DBA and the business s name on each line for each partner Ex. John Doe DBA XYZ Cleaners, and on the next Defendant s box, Mary Smith DBA XYZ Cleaners Naming Business Partnership or Corporation/LLC: o Ex. Claimship Legalities, Inc. o Info needed: Business s full legal name Use the exact legal name that is stated with the Secretary of State Legal address (preferably not a PO Box) Use the address that this listed by the Secretary of State o Use the stated address even if it is an out-of-state address Agent for Service of Process information You need the name and address of the Agent for Service of Process that is representing the business partnership or corporation/llc o To serve a Corporation/LLC:

12 Small Claims Ultimate Guide (SCUG) (v. 1.1) 12 Serve the Agent for Service of Process that represents the Corporation/LLC at the Agent for Service of Process stated address o How to find this information: Secretary of State s website o Make sure to perform both a Corporation search and a LLC search for the business Secretary of State s phone number (916) City s Business Licensing Bureau City or County Tax Assessor s Office Listing Multiple Plaintiffs or Defendants (Three or More Plaintiffs or Defendants): o Fill out the Other Plaintiffs or Defendants (Small Claims) (SC-100A) to list the additional Plaintiffs/Defendants and attached this form to the Plaintiff's Claim and ORDER to Go to Small Claims Court (SC-100) [or the Defendant s Claim and ORDER to Go to Small Claims Court (SC-120) if you are the Defendant and you are countersuing] when filing and serving Cases Involving Auto Accidents: o Sue the Owner and the Driver at the time of the accident If the person that hits you is both the owner and driver of the car, Write: ***Individual s Name***, owner and driver If they are different Write: ***Individual s Name***, owner for one Defendant, and as a separate Defendant, ***Individual s Name***, driver o For more information, read the topic Auto Accidents (Includes Out-of-State Drivers) in the Additional Information section Venue: Venue is the courthouse that has jurisdiction of the case o Your case must be heard at the correct venue or it will be dismissed or be moved How to Find the Right Venue: o Paragraph Four on the Plaintiff's Claim and ORDER to Go to Small Claims Court (SC-100) lists the different criteria for venue: a. (1) Where the Defendant lives or does business. (2) Where the Plaintiff s property was damaged. (3) Where the Plaintiff was injured. (4) Where a contract (written or spoken) was made, signed, performed, or broken by the Defendant or where the Defendant lived or did business when the Defendant made the contract. b. Where the buyer or lessee signed the contract, lives now, or lived when the contract was made, if this claim is about an offer or contract for personal, family, or household goods, services, or loans. (CCP, 395(b).)

13 Small Claims Ultimate Guide (SCUG) (v. 1.1) 13 c. d. e. Where the buyer signed the contract, lives now, or lived when the contract was made, if this claim is about a retail installment contract (like a credit card). (Civil Code, ) Where the buyer signed the contract, lives now, or lived when the contract was made, or where the vehicle is permanently garaged, if this claim is about a vehicle finance sale. (Civil Code, ) Other (specify): Damages to List in the Small Claims: Important! Request the highest dollar amount on your claim when you file o The Judge may lower the amount you are claiming, however, the Judge is not permitted to raise the amount What can you sue for [NOTE: This is not a complete list for what you may sue for] o Calculable damages: Damages, Transportation costs (projected costs), Time spent on the case (projected costs), Wages lost (projected costs), Etc. o Non-Calculable damages: Emotional distress, Punitive damages, Etc. o You do not need to list: Filing fees and service fees These fees will be awarded by the Judge if you win the Small Claims What if I Work All Week (M-F, 9:00-5:00)? How Can I File a Small Claim? Check with the Small Claims Clerk for night or Saturday Small Claims trials If you are unable attend those, then you may have to set aside time from your work to pursue your case o You may want to include wages lost and time spent as part of your damages for your claim

14 Small Claims Ultimate Guide (SCUG) (v. 1.1) 14 Methods for Filing: Filing In Person: o Pros: Can choose the date o Con: Pay for transportation, parking fees, and time spent for traveling o File your forms with the Small Claims Clerk at the Small Claims Department o For how many copies of your claim that you need to bring when filing in person, use this formula: 1 + P + D = Copies to bring P = Number of Plaintiffs, D = Number of Defendants o One copy is for the court, a copy for each Plaintiff, and a copy for each Defendant Important! If you will be performing Substitute Service on a Defendant, than you need an additional copy Filing by Mail: o Pros: No travel costs o Cons: Cannot directly choose the trial date (but may suggest certain times and days with special instructions) o Address the Letter with the following: Attn: Small Claims Clerk o When you file your claim by mail, make sure to include an addressed selfstamped return envelope so the courthouse will mail back your filed papers o For how many copies of you claim that you need to mail with your letter, use this formula: 1 + P + D = Copies P = Number of Plaintiffs, D = Number of Defendants o One copy is for the courts, a copy for each Plaintiff, and a copy for each Defendant Important! If you will be performing Substitute Service on a Defendant, than you need an additional copy E-Filing your Small Claims through I-CAN! Legal < o Pros: Filing in the comforts of your home. The Court will return an e-filed conformed copy through I-CAN! o Cons: Is only for the citizens of County of Orange, cannot choose the trial date (but may suggest certain times and days with special instructions), and takes 3-5 business days to process

15 Small Claims Ultimate Guide (SCUG) (v. 1.1) 15 Requesting a Fee Waiver: If you are either a low income individual or a low income individual who is supporting a household with other dependants, then you may be entitled to have the courts waive your court fees You may have the court waive your fees if: A. Receive government assistance B. Your gross monthly household income (before deductions from taxes) is less than the amount listed below: C. You do not have enough income to pay for the household s basic needs and the court fees Options to choose for this: i. Waive all court fees ii. Waive some of the court fees iii. Let me make payments over time How To File A Few Waiver: o Read the Information Sheet on Waiver of Court Fees and Costs (FW-001-INFO) to see if you qualify If you do qualify for a fee waiver, then file the Request to Waive Court Fees (FW-001) and the Order on Court Fee Waiver (FW-003) when you file the Plaintiff's Claim and ORDER to Go to Small Claims Court (SC-100) [or the Defendant s Claim and ORDER to Go to Small Claims Court (SC-120) if you are the Defendant and you are countersuing]

16 Small Claims Ultimate Guide (SCUG) (v. 1.1) 16 Serving and Challenging

17 Small Claims Ultimate Guide (SCUG) (v. 1.1) 17 PLAINTIFF Serving the Defendant(s) with the Plaintiff's Claim and ORDER to Go to Small Claims Court (SC-100): IMPORANT!: YOU MUST SERVE EACH DEFENDANT WITH A FILED CLAIM THAT HAS THE COURT STAMP, COURT TIME(S), AND CASE NUMBER Before Service: o The Plaintiff's Claim and ORDER to Go to Small Claims Court (SC-100) must be filed at the proper courthouse (proper venue) Service must be done 15 days (in county) or 20 days (outside of county) before the trial date, with an exception for Substitute Service, which must be done 25 days or 30 days respectively Serving a Corporation or a LLC: Agent for Service of Process o How to serve a corporation/llc: If you are suing either a corporation or a LLC that has an Agent for Service of Process, then you must serve the Agent for Service of Process that represents the Corporation/LLC at the Agent for Service of Process stated address Do not serve the corporation or LLC o How to find if a business has an Agent for Service of Process and the Agent s information: Secretary of State s website o Make sure to perform both a Corporation search and a LLC search for the business Secretary of State s phone number (916) City s Business Licensing Bureau City or County Tax Assessor s Office Methods for Service: IMPORTANT! This topic is for both the Plaintiff and the Defendant (if the Defendant countersues). For simplicity, this topic is written with the assumption that you are the Plaintiff. If you are the Defendant and are countersuing, then you will follow the same procedures to serve the Plaintiff except that the Defendant has different time requirements for serving the Plaintiff. For more information on Countersuing as the Defendant (especially for the different time requirements for serving), refer to the topic Defendant How to Countersue in this section Personal Service: o Someone who is not a party member of the Small Claims and is 18 years or older may serve the papers on the Defendant o Once service has been done, the person who serves the Defendant must fill out the Proof of Service (Small Claims) (SC-104) and files it (by person or by mail) with the courthouse 5 calendar days before the trial

18 Small Claims Ultimate Guide (SCUG) (v. 1.1) 18 Sheriff: o A Sheriff may serve your claim for a fee o What the Sheriff Does: You inform the Sheriff of who to serve and the best times to perform service Generally, the Sheriff will attempt to serve up to 3 times If service is successful, then the Sheriff will fill out the service papers and inform both you and the courthouse of the successful service o How to: File the Plaintiff's Claim and ORDER to Go to Small Claims Court (SC- 100) [or the Defendant s Claim and ORDER to Go to Small Claims Court (SC-120) if you are the Defendant and you are countersuing] at the correct courthouse Fill out the Sheriff Instruction Sheet (L-1176) and bring this sheet and the filed Plaintiff's Claim and ORDER to Go to Small Claims Court (SC-100) [or the Defendant s Claim and ORDER to Go to Small Claims Court (SC- 120) if you are the Defendant and you are countersuing] copies to the Sheriff s office that serves the area where the Defendant is located Professional Process Server: o For a fee, a Process Server will serve the Plaintiff's Claim and ORDER to Go to Small Claims Court (SC-100) to the Defendant [or the Defendant s Claim and ORDER to Go to Small Claims Court (SC-120) to the Plaintiff if you are the Defendant and you are countersuing] o Costs and methods varies More accommodating for special cases o Must research and find Process Servers either online or through a phonebook Certified Mail by the Small Claims Clerk: o For a fee, the Small Claims Clerk will send out a certified mail with the Plaintiff's Claim and ORDER to Go to Small Claims Court (SC-100) to the Defendant [or the Defendant s Claim and ORDER to Go to Small Claims Court (SC-120) to the Plaintiff if you are the Defendant and you are countersuing] for service o Important! If the Defendant does not sign for the certified mail, then service HAS NOT been performed This method also works when serving an Agent for Service of Process who is representing an established Corporation or LLC Substituted Service: o Important! You will need two copies of the filed Plaintiff's Claim and ORDER to Go to Small Claims Court (SC-100) [or the Defendant s Claim and ORDER to Go to Small Claims Court (SC-120) if you are the Defendant and you are countersuing] to perform each Substitute Service o There are TWO STEPS to perform Substituted Service: 1. Someone who is not a party member of the Small Claims parties and is 18 years or older serves the papers to a competent person over the age of 18 at the Defendant s home or place of work 25 days in county (or 30 days if out of county) before the trial date a. When serving at a business, it is best to leave the papers to the person who is in charge of the business during normal business hours

19 Small Claims Ultimate Guide (SCUG) (v. 1.1) A copy of the forms needs to be mailed first class on the same day (if not, immediately the following day) to that address o Substituted service is only completed ON THE 10 th DAY AFTER THE MAILING HENCE, substituted service takes 25 days within county and 30 days outside of county (rather than normal service of 15 days and 20 days respectively) o The person performing the service must fill out BOTH the Proof of Service (Small Claims) (SC-104) and the Proof of Mailing (Substituted Service) (SC-104A) and both forms need to be filed at the proper courthouse five days before the trial If Service Is to Be Done to a Minor: If the Defendant is 11-years-old or younger: o Service must be perform to the parent or guardian of the Defendant (or any person having the care or control of the minor) If the Defendant is between 12-years-old and 18-years-old: o Service must be perform to both the Defendant and the parent or guardian of the Defendant (or any person having the care or control of the minor) IMPROTANT! For this, you must have at least two copies of the filed Plaintiff's Claim and ORDER to Go to Small Claims Court (SC-100) [or the Defendant s Claim and ORDER to Go to Small Claims Court (SC-120) if you are the Defendant and you are countersuing], one for the Defendant and one for the parent or guardian (or any person having the care or control of the minor) Out-of-State Service: Under the Small Claims Act, service may ONLY be done OUTSIDE of California for: o Incidents involving Car Accidents, or o Incidents involving real estate property, including rental issues Amendments to the Small Claim: Changing a Defendant s name can be done before or at the trial o Changing the Defendant s name at the trial: You may ask the Judge to amend the party s name at your trial CCP (b) o Changing the Defendant s name before the trial: If service HAS NOT been performed and you have filed: 1. Fill out a new Plaintiff's Claim and ORDER to Go to Small Claims Court (SC-100), make the necessary changes (preferably in Blue ink) and write Amended on the top and bottom of the first page of the Plaintiff's Claim and ORDER to Go to Small Claims Court (SC-100) 2. Mail or bring this form in-person to the Small Claims Clerk at the courthouse where the case is filed o Important! Make sure that the Small Claims Clerk makes the necessary amendments

20 Small Claims Ultimate Guide (SCUG) (v. 1.1) 20 o If you mail the form, then include an addressed selfstamped return envelope with your initial mailing of the form for the Courts to mail back the filed copies Important! You must wait for the amended copy to be mailed back so you can serve the amended claim on the Defendant(s) If service HAS been performed on any Defendant: 1. Fill out the Request to Amend Claim Before Trial (Small Claims) (SC-114) or write a letter to ask for permission to change your claim o File either one with the Small Claims Clerk 2. NOTE: A copy of Request to Amend Claim Before Trial (Small Claims) (SC-114) or a letter must either be mailed or be personally delivered to anyone who has been served 3. For those who have not been served, serve the Amended copy Change What You Have Asked for in Your Claim: o Depends on if service has been performed: If service HAS NOT been performed: On another copy of the filed Plaintiff's Claim and ORDER to Go to Small Claims Court (SC-100), make the necessary changes (preferably in Blue ink) and write Amended on the top and bottom of the first page Mail or bring this form in-person to the Small Claims Clerk o If you mail the form, include an addressed selfstamped return envelope for the courthouse to mail back your filed copies You must wait for the amended copy to be mailed back to you before you serve the copies with the amended changes Important! Make sure that the Small Claims Clerk makes the necessary amendments If service HAS been performed on one of the Defendants: In addition to following what is stated in the above If Service HAS NOT been performed, you must re-serve each Defendant that you already served with the amended form Defendant How to Countersue: The Defendant may countersue the Plaintiff in the same case for an issue not related to the same subject or event as the plaintiff s claim. o CCP (a): The defendant may file a claim against the plaintiff in the same action [...] The claim need not relate to the same subject or event as the plaintiff's claim." To countersue, the Defendant files a Defendant s Claim and ORDER to Go to Small Claims Court (SC-120) o The Defendant follows the same monetary caps as the Plaintiff (i.e. Defendant may sue only up to $5,000 or $7,500, depending on the identity of the Defendant(s)) For more information, read the topic Who Are You (Legally Speaking) and How Much You May Sue For? in the section Filing a Small Claims (SC)

21 Small Claims Ultimate Guide (SCUG) (v. 1.1) 21 o The Defendant follows the exact same procedures as the Plaintiff in filing the SC-120 at the same courthouse and serving the forms to the Plaintiff, EXCEPT The Defendant s Claim and ORDER to Go to Small Claims Court (SC-120) must be served 5 days before the trial HOWEVER, if the Plaintiff served the Defendant less than ten days before the trial, then the Defendant must serve the Defendant s Claim and ORDER to Go to Small Claims Court (SC-120) one day before the trial if the Defendant wants to countersue o The Defendant may serve at the trial but the trial may be postponed How to Challenge Venue: How to (two options): o Option #1: Write a letter to the court Address the letter to the Judge (may use Dear Judge ) 1. Write and explain in your letter why the Plaintiff s choice of venue is incorrect and that you have mailed this letter to each Defendant/Plaintiff that is named in the case a. Include in your letter the case name and the case number 2. You must then send a copy of your letter to the Small Claims Clerk at the courthouse and to each Defendant/Plaintiff that is named in your case If done correctly, then you do not need to appear at the trial If the Judge believes that the court location is correct and you are NOT present at the trial, then the Judge will postpone the trial for at least 15 days If the Judge believes that Plaintiff chose the wrong venue (court location) and you are not present at the trial, then the case will either be transferred or dismissed with/without prejudice o If the case is dismissed without prejudice, then the Plaintiff may refile in the proper venue o Option #2: Challenge the venue by objecting to the venue at the trial If the Judge decides that the Plaintiff s choice of venue was proper, then the trial will proceed If the Judge decides that the Plaintiff s choice of location is incorrect, then the Judge may either transfer the case to the proper venue or dismiss the case with/without prejudice If the case is dismissed without prejudice, then the Plaintiff may refile in the proper venue NOTE: The Defendant may choose to waive his/her right to challenge venue even if the Plaintiff chose the wrong venue (for example, the location may be convenient for the Defendant) NOTE: The Judge may change the venue if it will be more convenient for the parties and witnesses to attend the case at a different location

22 Small Claims Ultimate Guide (SCUG) (v. 1.1) 22 Postponing: The Plaintiff or Defendant may postpone the trial How to: o If service HAS NOT been done: File the Request to Postpone Trial (SC-150) Must be filed 10 calendar days before trial When filing, you must bring in all copies of Plaintiff's Claim and ORDER to Go to Small Claims Court (SC-100) to have the date amended o If service HAS been done: Fill out the Request to Postpone Trial (Small Claims) (SC-150) or write a letter to the Small Claims Clerk at the courthouse where the case will be held explaining why you need to change the court date File it 10 calendar days before the trial and pay the filing fee ALSO, you must mail or personally give a copy to each party o What if it is now less than 10 calendar days before the trial IMPORTANT! Postponement will be granted only for emergencies: How to: 1. Fill out the Request to Postpone Trial (Small Claims) (SC-150) or write a letter to the Small Claims Clerk at the courthouse where the case will be held explaining why you need to change the court date o You must pay the filing fee o You must provide a good reason why you are filing your request for postponement within 10 days before your trial Postponement may or may not be granted 2. ALSO, you must mail or personally give a copy of your postponement to each participant I Am Unsure If My Small Claims Case Has Been Postponed: If you are unsure that your Small Claims case has been postponed and you have not heard back from the courthouse, then contact the Small Claims Clerk o If you are still unsure, then show up to the case at the stated time Dismissing: To dismiss a case, the Plaintiff must file the Request for Dismissal (CIV-110) before the trial o There is no fee associated with the Request for Dismissal (CIV-110) o Alternatively, the case will be dismissed if either the Plaintiff does not show up or if both the Plaintiff and the Defendant do not show up

23 Small Claims Ultimate Guide (SCUG) (v. 1.1) 23 Preparing for Trial

24 Small Claims Ultimate Guide (SCUG) (v. 1.1) 24 Subpoena: Small Claims Subpoena and Declaration (SC-107): What Is a Subpoena: o A subpoena is a writ or order to appear at a certain time and place to give testimony for a certain matter o A subpoena may require a witness to produce documents under the witness s control, obligating the witness to produce these documents by law A witness who fails to follow the subpoena orders may be held in contempt of court How to: 1. Fill out the Small Claims Subpoena and Declaration (SC-107) and file it with the Small Claims Clerk 2. You or anybody else will need to serve the Small Claims Subpoena and Declaration (SC-107), IN PERSON, to the witness Unlike the Plaintiff's Claim and ORDER to Go to Small Claims Court (SC- 100) or Defendant's Claim and ORDER to Go to Small Claims Court (SC- 120), ANYONE over the age of 18 may serve the form IMPORTANT! DO NOT SERVE THE ORIGNAL Small Claims Subpoena and Declaration (SC-107) 3. After serving, the original subpoena must be returned to the Court with the completed Proof of Service [the Proof of Service is a part of the Small Claims Subpoena and Declaration (SC-107)] NOTE: If you are using the local form Small Claims Subpoena and Declaration (L-0520), you do not need the Small Claims Clerk to issue you the subpoena since it has already been issued for you Witness Fees for Being Subpoenaing: o A Witness may ask for $35 per day plus 20 cents per mile each way Witness fees for law enforcement officers and government employees are higher If a Witness asks for fees, the Witness does not need to appear unless the required fees are paid and received The person who serves the subpoena should be prepared to pay the fees at the time of service in the event that fees are requested by the witness The Witness may request the fees at a later date before the trial If the Witness does not ask for fees, you do not have to offer them Signed Statements from a Witness: o The Witness may provide a signed statement instead of showing up to a case o How to: The Witness writes his/her statement while doing the following: On the top of the first page, the Witness puts his/her contact information (address and phone number(s)) On the bottom of each page the Witness includes: o I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. o Under this statement, the Witness print s his/her name, signs with his/her signature, and dates the page

25 Small Claims Ultimate Guide (SCUG) (v. 1.1) 25 Authorization to Appear (SC-109): The Authorization to Appear (SC-109) tells the court that you are authorized to appear for a Plaintiff or Defendant in a small claims case o IMPORTANT! A person cannot appear for the Plaintiff or Defendant if that person s only job is to represent the Plaintiff or Defendant in Small Claims Lawyers may appear only as authorized by CCP You may fill this form out if you are appearing the behalf: o [NOTE: DOWN BELOW IS A PARTIAL LIST! PLEASE REFER TO THE Authorization to Appear (SC-109) FOR A COMPLETE CRITERIA FOR EACH OF THE FOLLOWING] Corporation Partnership Other Business Government Agency or Other Public Entity Sole Proprietorship Plaintiff who was assigned to out-of-state active duty in the U.S. armed forces for more than 6 months after filing this claim Defendant or Plaintiff who is in a jail, a prison, or another detention facility now Owner of Rental Property in California Association Husband or Wife and my spouse and I are both listed Other (explain) Preparing for the Day of Trial: Most Small Claims cases last for minutes Write an outline for your presentation o This outline is for your own use o Start with strongest arguments and work yourself downwards to the weakest argument Make and bring copies of all your court forms and Proof of Service(s) Make copies of contracts, records, receipts, documents, etc. o Preferably, you should bring the original copy plus two copies to the case o Keep the original copy while providing the Judge and the Defendant(s) [or Plaintiff(s)] the copies unless otherwise stated If applicable, produce pictures, draw diagrams, create detail boards for your presentations Have a timeline if relevant Witnesses at the trial: o Two options: 1. Witnesses may come in person, or 2. You may bring signed statements from witnesses Signed Statements from a Witness: o The Witness may provide a signed statement instead of showing up to a case o How to: The Witness writes his/her statement while doing the following:

26 Small Claims Ultimate Guide (SCUG) (v. 1.1) 26 On the top of the first page, the Witness puts his/her contact information (address and phone number(s)) On the bottom of each page the Witness includes: o I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. o Under this statement, the Witness print s his/her name, signs with his/her signature, and dates the page What If I Do Not Speak English Well? If you need an interpreter, than ask the Small Claims Clerk at least 1 week before your trial to check if the court provides interpreters o If you qualify for a fee waiver, then some courts may provide an interpreter for free o If not, then you may have to arrange for an interpreter to come on your behalf at the trial Work with your courthouse to arrange this DO NOT ask a child or a witness to be your interpreter If you have problems getting an interpreter, than you may have your trial delayed so you can get one I Need Auditory Accommodation (Deaf, Hard of Hearing, Other): Ask the court s ADA coordinator or Small Claims Clerk at least 1 week before your trial to arrange accommodations o For more information: Coordinators

27 Small Claims Ultimate Guide (SCUG) (v. 1.1) 27 Day of Trial

28 Small Claims Ultimate Guide (SCUG) (v. 1.1) 28 Day of Trial: Dress appropriately (try to dress like an attorney) Arrive approximately 30 minutes before your case (calm yourself down, use the restroom, etc.) Check if you are on the courtroom s calendar for the day (generally, the calendar will be on or near the courtroom s door) While inside the courtroom, wait for the Judge to call up your case Small Claims cases may be heard by: o A Judge o Commissioner o Judge Pro Tem Judge Pro Tem is an Attorney who volunteers his/her time to hear Small Claims cases You may object to a Pro Tem hearing your case When your case is called up: o Go to the table in front of the Judge o Witnesses may come with you at this point o It is highly recommend that you stay unemotional Presenting in Front of the Judge: You want to inform the Judge why you are there: o Summarize your claim o Damages o Why the other persons is at fault o How you did not create the problem Present Evidence when relevant The Judge may encourage mediation o If so, then both parties will meet with a mediator If there is no mediation agreement, then both parties will go back in front of Judge End of Trial and the Judgment: In most cases, the Judge takes the case under submission o The Judge usually responds 1-2 weeks later through the mail However, the Judge may legally take up to 90 days for a judgment

29 Small Claims Ultimate Guide (SCUG) (v. 1.1) 29 Judgment and Appeal

30 Small Claims Ultimate Guide (SCUG) (v. 1.1) 30 KEY TERMS: Judgment Creditor: Judgment Debtor: The party (may be the Plaintiff or the Defendant) in whose favor a judgment has been awarded The party (may be the Plaintiff or the Defendant) against whom the judgment has been entered For Additional Information: For more information, read What to Do After the Court Decides Your Small Claims Case (SC-200-INFO) Judgment: IMPORTANT! A judgment cannot be collected until 30 calendar days have passed since the date of mailing of the Notice of Entry of Judgment (Small Claims) (SC-130 or SC-200) Once the judgment has been entered, both the Plaintiff and the Defendant will receive the Notice of Entry of Judgment (Small Claims) (SC-130 or SC-200) in the mail stating who won and/or lost o Important! The date of mailing for the Notice of Entry of Judgment (Small Claims) (SC-130 or SC-200) will be stamped on the form itself o Also, for certain counties, the judgment may be available online IMPORTANT! Once a judgment has been entered, the party in whose favor a judgment has been awarded is known as the Judgment Creditor while the party against whom the judgment has been entered against is known as the Judgment Debtor Unless the court orders otherwise, the judgment is due immediately and interest starts accruing on the judgment For the Debtor: o After 30 days, IF the Debtor: HAS NOT pay the judgment, HAS NOT request an installment payment plan for the judgment, or HAS NOT file an appeal THEN, the Debtor fills out and send the Judgment Debtor s Statement of Assets (Small Claims) (SC-133) to the Creditor to prevent the court from ordering the Debtor to impose other penalties If the Debtor does not fill out and send the Judgment Debtor s Statement of Assets (Small Claims) (SC-133), then Creditor may file the Application and Order to Produce Statement of Assets and to Appear for Examination (SC-134) o NOTE: If the Debtor fills out and sends the Judgment Debtor s Statement of Assets (Small Claims) (SC-133), then the Creditor may still file the Application and Order for Appearance and Examination (EJ-125)

31 Small Claims Ultimate Guide (SCUG) (v. 1.1) 31 For the Creditor: o The Judgment Debtor has 30 days from the date of mailing of the Notice of Entry of Judgment (Small Claims) (SC-130 or SC-200) to pay, to establish a payment plan, or to file an appeal After 30 days, the Creditor can start collecting if the Debtor has not paid the judgment, has not established a payment plan, or has not filed for an appeal o If the Creditor does not know any information concerning Debtor s assets: Then the Judgment Creditor may take the Debtor to a Debtor s Exam by filing an Application and Order to Produce Statement of Assets and to Appear for Examination (SC-134) NOTE: If the Debtor fills out and sends the Judgment Debtor s Statement of Assets (Small Claims) (SC-133), then the Creditor may still file the Application and Order for Appearance and Examination (EJ-125) In addition, the Creditor may file the Small Claims Subpoena and Declaration (SC-107) after filing the Application and Order to Produce Statement of Assets and to Appear for Examination (SC- 134) to have the Debtor produce his/her financial records or other documents at the Debtor s Exam Filing an Appeal: Appeal Trial (aka Trial de Novo) o Both parties return back to court to present their case o An appeals trial treats the first trial has if it never had happened o Important! The decision for an appeal is FINAL!!! o IMPROTANT! Both parties are allowed legal representation (lawyers) for an appeal trial "WHO CAN FILE AN APPEAL?" Defendant: Plaintiff: Must have lost Must have been countersued AND must have lost the countersuit Why the Plaintiff cannot file an Appeal unless if the Plaintiff lost a countersuit: o When filing the Plaintiff's Claim and ORDER to Go to Small Claims Court (SC- 100), the Plaintiff signs away his/her right to appeal except for when he/she lost a countersuit against the Defendant To file an appeal: o File the Notice to Appeal (SC-140) within 30 calendar days from the date of mailing of the Notice of Entry of Judgment (SC-130 or SC-200) o The Small Claims Clerk will send a notice to the other party at least 14 days prior to the appeals trial

32 Small Claims Ultimate Guide (SCUG) (v. 1.1) 32 The Appeal Trial: The case will be heard all over again as if the first case has never happened The judgment in an appeals trial is FINAL Both parties should present all their evidence and witnesses again Either side may have attorneys present o The Judge may award $150 in attorney fees and an additional $150 for extra expenses occurred in the appeal process o Additionally, the Judge may award $1000 in attorney fees and an additional $1000 for extra expenses occurred in the appeal process if you or your lawyer can prove that one of the following occurred The losing party filed an appeal without strong support for their position; The losing party intends to harass or delay the other party; or The losing party filed the appeal to encourage the other party to abandon the case After winning an appeal, you may start collecting immediately o NOTE: If you were awarded a monetary judgment, then there is no 30-day waiting period Default Judgments and Appeals for Default Judgments: Key Terms: With Prejudice: Without Prejudice: CANNOT re-file the same case CAN re-file the same case If the Plaintiff DOES NOT appear at the Small Claim trial, o Then the case will be dismissed (either with or without prejudice) If the Defendant DOES NOT appear at the Small Claims trial, o Then the Judge may grant the Plaintiff a default judgment against the Defendant If the Defendant DOES appear and loses the Small Claims trial, o Then the Defendant may appeal by filing the Notice to Appeal (SC-140) This form must be filed within 30 calendar days of the date of mailing for the Notice of Entry of Judgment (SC-130 or SC-200) The Small Claims Clerk will send a notice of the court date to the other party at least 14 days prior to the appeals trial If the Defendant DOES NOT appear at the trial and there is a Default Judgment against the Defendant: o The Defendant may ask the Small Claims Court to vacate or set aside the default judgment If the Defendant was properly served: The Defendant must file a Notice of Motion to Vacate Judgment and Declaration (SC-135) with the Small Claims Clerk within 30 days after the date of mailing of the Notice of Entry of Judgment (SC-130 or SC-200)