Small Claims Court Review for Volunteer Attorneys

1. Small Claims Court Review for Volunteer Attorneys • Gary M. Baum • Law Offices of Gary M. Baum • garybaumlaw@gmail.com

2. Purpose of Small Claims Court • Small Claims Court is designed for less formal and smaller disputes. • Decisions are made by Commissioners or Temporary Judges. • Typically, Small Claims Court is used for money disputes.

6. Jurisdiction • $10,000 is the general ceiling for claims. • A business may not file a claim for more than $5000. • If a claim is for more than $10,000 and the filing is made in Small Claims Court, then the amount over $10,000 is waived. • Claims for automobile personal injury are limited to $7500.

7. Service • Service must be done properly. • Personal service is preferable, but cannot be done by the plaintiff. The person serving must be over 18 years old. • Client may hire someone to serve the claim. • Certified mail is a cheaper alternative. • Substituted service is possible.

8. Venue • A claim should be filed in the County where the Defendant resides. • It may be filed where the Defendant’s business is located or where the contract was to be performed. • Cases in South County should be filed in Morgan Hill. • Cases in North County should be filed in Palo Alto.

9. Tips for the Plaintiff • Arrive at least ½ hour early to park and get through security. • Attempt to settle with the Defendant if at all possible. • Bring 3 copies of all documentation. • Give the Defendant a copy of all documents. • Live witnesses are always better than declarations.

10. Tips for Defendants • The same tips as apply for Plaintiffs, apply here. • Dress nicely and wear clean clothing. • Bring in an interpreter with them, if necessary. The interpreter should not be a witness. • Be prepared to briefly explain their side of the story. • Bring any evidence for the Commissioner to consider.

11. Defaults • Either side may default. For Defendant, ask that the case be dismissed with prejudice. • A default can only be taken if service was proper. • For Plaintiff they will need to prove up the value of their case.

12. Special Circumstances • A contractor may only sue for $500 or more if he or she is licensed. Bring a copy of the license to Court. • No license, no case and the case will be dismissed. • Note: car repair facilities must be licensed as well and they should take a copy of their license to Court.

13. Landlord Tenant Disputes • Landlord tenant disputes are one of the most common filings in small claims court. • General Tips: • Use photographs or live witnesses. • Security deposits are capped at two times the monthly rent for unfurnished apartments and three times the monthly rent for furnished apartments. • There is no such thing as a non-refundable deposit.

14. Landlord Tenant Disputes (con’t.) • Most disputes are about security deposits. • The landlord bears the burden of proof in these cases. • Deposits may be withheld for cleaning, actual damage, alterations to the unit or unpaid rent or utility obligations. • Deposits may not be withheld for normal wear and tear. • For example, the life of a carpet is generally expected to be 5 years. • The landlord must provide receipts for all amounts withheld.

15. Landlord Tenant Disputes (con’t.) • The landlord must provide a full accounting and a refund of the remaining deposit within 21 days of the termination of tenancy. • Receipts or a written summary if the work was performed by the landlord is required for all withheld amounts in excess of $125. • Failure to provide the summary and funds within 21 days may result in a penalty of up to twice the deposit under Civil Code 1950.5.

16. Collecting Judgments • Winning is only the first step. Collecting can be the hard part. • The judgment is stayed for 30 days after entry. • If the judgment is for $750 or more involving a motor vehicle accident, the Plaintiff can file with the DMV which will affect the Defendant’s license. • Writs of Execution or wage garnishment are also available.