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11th edition Everybody s Guide to Small Claims Court By Attorney Ralph Warner
Eleventh Edition june 2006 Editor jennifer wedel Production margaret livingston Proofreading hastings hart Index medea minnich Printing Consolidated printers, inc. Warner, Ralph E. Everybody s guide to small claims court / by Ralph Warner ; illustrated by Linda A allison.-- 11th ed. p. cm. isbn 1-4133-0490-7 (alk. paper) 1. Small claims courts--united States--Popular works. I. Title: Small Claims Court. II. title. KF8769.Z9W37 2006 347.73 28--dc22 2006040102 Copyright 1980, 1984, 1985, 1987, 1990, 1991, 1995, 1997, 2000, 2002, 2003, and 2006 by Ralph Warner. All rights reserved. Printed in the U.S.A. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise without the prior written permission of the publisher and the authors. Reproduction prohibitions do not apply to the forms contained in this product when reproduced for personal use. For information on bulk purchases or corporate premium sales, please contact the Special Sales department. For academic sales or textbook adoptions, ask for Academic Sales. Call 800-955-4775 or write to Nolo at 950 Parker St., Berkeley, CA, 94710.
Thank You Nolo is as much family as business. Without the help of many Nolo family members, there would be no books such as this one. Over the years, a number of talented friends have read the manuscript of this book and made helpful suggestions for improvement. With enough help, even a tarnished penny can be made to shine. Thanks to Natasha Kaluza, Jeanne Stott, Ella Hirst, Nick Aquino, Mary Alice Coleman, Scott Reep, and Susan Cornell. Thanks also to Jennifer Wedel, who so competently edited this edition. Many thanks also to the small claims court clerks and legal advisors whose input keeps this book fresh. Ella Hirst, Stanley Jacobsen, Beth Laurence, and Alayna Schroeder compiled the research for all material appearing in the Appendix. Their thorough, patient, and dedicated work has made this a better book. For the 11th edition, a very warm thank you goes to Judge (Ret.) Roderic Duncan and Commissioner Douglas G. Carnahan, whose perspectives from the bench on the small claims court process are an invaluable contribution. Another sincere thanks goes to John Lamb for assistance with consumer protection laws.
For Toni, the light, the heart, and the love of my life.
Table of Contents Introduction...1 1 In the Beginning... 5 A. First Things...6 B. Checklist of Things to Think About Before Initiating or Defending Your Case...8 C. Legal Jargon Defined...11 D. How to Use This Book...17 2 Do You Have a Good Case?... 19 A. Stating Your Claim on Your Court Papers...20 B. But Is My Case Really Any Good?...21 C. How to Approach a Breach of Contract Case...26 D. How to Approach a Property Damage Case...34 E. How to Approach a Personal Injury (and Mental Distress) Case...38 F. How to Approach a Case When You Are Injured by a Defective Product...41 G. How to Approach a Breach of Warranty Case...42 H. How to Approach a Professional Malpractice Case...46 I. How to Approach a Nuisance Case...48
3 Can You Collect Your Money If You Win?... 51 4 How Much Can You Sue For?... 55 A. Cutting Down a Claim to Fit Under the Limit...56 B. Splitting Small Claims Court Cases...57 C. How to Calculate the Exact Amount of Your Claim...59 D. Equitable Relief (or, Money Can t Always Solve the Problem)...71 5 When Can You Sue?... 75 A. Statute of Limitations Periods...76 B. Calculating the Statute of Limitations...80 C. Defendant Should Tell the Judge If the Statute of Limitations Has Run Out...83 6 How to Settle Your Dispute... 85 A. Try to Talk Out Your Dispute...87 B. Mediate Your Dispute...90 C. Write a Formal Demand Letter...96 D. Write Down the Terms of Any Settlement...106 E. Agreement Just Before Court Hearing...112 7 Who Can Sue?... 113 A. Married Couples...114 B. Sole Proprietorships...116
C. Business Partnerships...116 D. Corporations...116 E. Limited Liability Companies...116 F. Nonprofits and Unincorporated Associations...117 G. Motor Vehicle Claims...117 H. Government Agencies...117 I. Special Rules for by Prisoners and Military Personnel Transferred Out of State...117 J. Suits by Minors...118 K. Class Actions (Group Lawsuits)...118 L. Participation by Attorneys and Bill Collectors...120 8 Who Can Be Sued?... 121 A. How to Sue One Person...122 B. How to Sue Two or More People...122 C. How to Sue an Individually Owned Business...123 D. How to Sue a Partnership...125 E. How to Sue a Corporation or Limited Liability Company (LLC)...125 F. How to Sue on a Motor Vehicle Accident...126 G. How to Sue Minors...127 H. How to Sue Government Agencies...128 I. How to Sue the Estates of Deceased People...129
9 Where Can You Sue?... 131 A. Where to Sue Out-of-State Defendants...132 B. Where to Sue Defendants in Your State...134 C. What Happens if Suit Is Filed in the Wrong Small Claims Court?...139 10 Plaintiff s and Defendant s Filing Fees, Court Papers, and Court Dates... 141 A. How Much Does It Cost?...142 B. Filling Out Your Court Papers and Getting Your Court Date...142 C. The Defendant s Forms...148 D. Jury Trials...152 E. Changing a Court Date...152 11 Serving Your Papers... 157 A. Who Must Be Served...158 B. Where Can Papers Be Served?...159 C. How to Serve an Individual...159 D. How to Serve Papers on a Business...164 E. How to Serve a Government Agency...166 F. Time Limits in Which the Plaintiff s Claim Must Be Served...166 G. How to Notify the Court That Service Has Been Accomplished ( Proof of Service )...167 H. How and When to Serve a Defendant s Claim...170 I. How and When to Serve Subpoenas...170 J. Costs of Service...171
12 The Defendant s Options... 173 A. Claim That You Weren t Properly Served With Court Papers...174 B. Claim You Were Sued in the Wrong Small Claims Court...175 C. Claim You Were Sued After the Statute of Limitations Expired...176 D. You Have a Partial Defense Try to Compromise...176 E. You Want to Avoid Conflict Try to Mediate...177 F. You Have Absolutely No Defense...178 G. You Want to Pay the Plaintiff in Installments...178 H. If You, Not the Plaintiff, Were Wronged File a Defendant s Claim...179 I. Have Your Case Transferred to Formal Court...179 J. Fight Back...180 13 Getting Ready for Court... 183 A. Getting Help From a Private Lawyer...185 B. Mediation...185 C. Practice, Practice, Practice...186 D. Getting to the Courthouse...187 E. Court Times...187 F. Understanding the Courtroom and Basic Procedure...188 G. Dealing With Your Opponent...190 H. Dealing With the Judge or Commissioner...191 I. Organizing Your Testimony and Evidence...194
14 Witnesses... 197 A. Who Makes a Good Witness...198 B. Subpoenaing Witnesses...201 C. Subpoenaing Police Officers...204 D. Subpoenaing Documents...205 E. Witness Testimony by Letter...207 F. Judges as Witnesses...210 G. Testimony by Telephone...211 15 Your Day in Court... 213 A. If Your Opponent Doesn t Show Up...214 B. Contested Cases...219 C. A Sample Contested Case...225 D. Don t Forget to Ask for Your Costs...228 16 Motor Vehicle Repair Cases... 231 A. Have You Suffered a Loss?...232 B. Can You Prove the Defendant s Negligence Caused Your Loss?...233 17 Motor Vehicle Purchase Cases... 239 A. New Vehicles...240 B. Used Vehicle Dealers...243 C. Used Vehicles from Private Parties...246
18 Bad Debts: Initiating and Defending Cases in Which Money Is Owed... 253 A. Small Claims Court Is a Good Place to Sue on Bad Debts...254 B. Who Should Appear in Court?...255 C. Bad Debt Cases From the Plaintiff s Point of View...256 D. Debt Cases From the Debtor s Point of View...261 19 Vehicle Accident Cases... 267 A. Who Can Sue Whom?...269 B. Was There a Witness to the Accident?...269 C. Police Accident Reports...269 D. Determining Fault...270 E. Diagrams...271 F. Photos...272 G. Estimates...272 H. Your Demand Letter...273 I. Appearing in Court...275 20 Landlord-Tenant Cases... 277 A. Security Deposit Cases...280 B. Unpaid Rent, Rent Withholding, and Other Money Damage Cases...289 C. Drug Dealing and Other Crimes...294 D. The Obnoxious Landlord...298 E. The Landlord s Right of Entry and the Tenant s Right of Privacy...298 F. Discrimination...300 G. Evictions...301
21 Miscellaneous Cases... 303 A. Clothing (Alteration and Cleaning)...304 B. Dog-Related Cases...306 C. Damage to Real Estate (Land, Buildings, Etc.)...307 D. Police Brutality/False Arrest Cases...309 E. Defamation (Including Libel and Slander)...310 F. Internet Purchases...311 22 Disputes Between Small Businesses... 315 A. Remember: You Didn t Always Hate Your Opponent...317 B. Organizing Your Case...318 C. The Drama of the Distraught Designer...322 D. Old Friends Fall Out...325 23 Judgment and Appeal... 331 A. The Judgment...332 B. Installment Payments...333 C. Paying the Judgment Directly to the Court...336 D. File Satisfaction of Judgment After Payment...336 E. The Appeal...339 24 Collecting Your Money... 349 A. The Timing of Collecting Your Money...351 B. How to Collect...352 C. If Installment Payments Aren t Made...356 D. Collecting a Judgment Against a Government Agency...358
E. Finding the Debtor s Assets...359 F. Levying on Wages, Bank Accounts, Business Assets, Personal Property, Etc...363 G. Judgments Stemming From Auto Accidents...373 H. Creating Property Liens...373 I. Recovering Collection Costs and Interest...374 J. Renew Your Judgment...375 25 Legal Research... 379 A. Local Laws...380 B. State Laws...381 C. Case Law...387 Appendix... 395 Index
Introduction
2 EVERYBODY s guide to small claims court Filing a case in small claims court is a highly cost-effective strategy for resolving all kinds of disputes. In most states, the maximum amount you can sue for has increased substantially in recent years, and court judgments have become far easier to collect. In addition, many states have implemented innovative mediation programs for small claims, which can spare you the time and tension of presenting your case to a judge. So, although more can and should be done to make small claims court a true people s court, it is an efficient forum that gives participants an opportunity to resolve most personal consumer and small business disputes. The goal of this book is to give both people bringing a case and those defending one all the step-by-step information necessary to make the best possible use of small claims court. From deciding whether you have a case through gathering evidence, arranging for witnesses, planning your courtroom presentation, and collecting your money, you will find everything you need here. From the bench. Everybody s Guide to Small Claims Court is the only such guide to include practical suggestions from two former small claims court judges. You ll see their comments throughout the book. Everybody s Guide to Small Claims Court has now been in print for more than 25 years. The current edition has been completely updated to reflect literally hundreds of recent practical and legal changes. My goal is to make it the best possible tool to help you answer such questions as: how does small claims court work? Do I have a case worth pursuing or defending? How do I prepare my case to maximum advantage? What witnesses and other evidence should I present? What do I say in court? Can I appeal if I lose? How do I collect my judgment? Proper presentation of your small claims action can often mean the difference between receiving a check and writing one. This isn t to say that I can tell you how to take a hopeless case and turn it into a blue-ribbon winner. It does mean that with the information contained here, and your own creativity and common sense, you will be able to develop and present your