Preparing and Presenting A Small Claims Case

Preparing and Presenting A Small Claims Case Small Claims Court Advisory Program of The Legal Aid Society of Orange County

Small Claims Overview • Litigants represent themselves • Attorneys cannot represent litigants • Claims limited to $7,500 for natural persons and sole proprietors • Claims limited to $5,000 for corporations and LLC’s • Claims for $2,500 or more limited to 2 per calendar year • Claims for less than $2,500 are unlimited • Filing Fee ($30-$75) - $100 after filing 12 claims in a calendar year • Trials set for 30-60 days

Objective Help You In: • Preparing Your Case • Presenting Your Claim

Is Small Claims Court Appropriate For Your Case? • Does the claim justify the cost? • Which court has jurisdiction? • Can I collect?

Plaintiff’s Claim (SC-100) • Your name and address • Defendant’s proper name and address • How much you are suing for • Why you are entitled to that amount

Naming an Individual • Individual: “Hart, Betty M.” • Husband and Wife: - Defendant #1: “Dunn, Nick” - Defendant #2: “Dunn, Vicky” • Obtain form SC-100A for Additional Plaintiffs and Defendants to name additional parties

Naming a Business • Owner doing business under a fictitious business name (sole proprietorship): • “Jones, John P. d.b.a. John’s Shoe Store” • Partners on behalf of a partnership: • Defendant #1: “Hart, Betty M. individually and as a partner in Hart and Simons, a partnership” • Defendant #2: “Simons, Susan individually and as a partner in Hart and Simons, a partnership” • Obtaining a fictitious business name (d.b.a.) • City Hall for the city in which the business is located • County Recorder’s Office for the county in which the business is located

Naming a Corporation • “Beacham & Beacham, Inc.” • Or “Abacast Corporation d.b.a. Maritime Company” • Verify the corporation’s information by visiting the Secretary of State’s website • Corporation Records Online: www.sos.ca.gov

Naming a Corporation • When you search for a corporation, you will find two addresses: 1) “Entity Address” 2) “Agent for Service of Process” address - Write the “Entity Address” on your Plaintiff’s Claim - Once your claim is filed, you notify the defendant by serving the corporation’s “Agent for Service of Process”

Explain Your Claim • Money Judgments (provide dates and explain how you arrived at a particular dollar amount) • On 11/2/09 Maria Cortez stopped paying on contract dated 7/9/09. The remaining balance to be paid is $438.22 • Conditional Judgments • “Return of 1988 Toyota Corolla VIN# or $5,000” • Rescission • “The phone service I ordered with Pacific Bell never worked. I would like to have this contract rescinded.” • It is still a good idea to indicate a dollar amount on the claim. The judge may find that a monetary judgment is appropriate

Determine Venue • Where to sue: • Where the defendant resides or does business • Where the defendant entered into the contract • Where the contract was to be performed • Where the Real Property is located • Where the Accident/Injury occurred

Determine Venue • If there is more than one proper venue, you may choose the one most convenient for you.

File the Plaintiff’s Claim (SC-100) • Determine which venue or courthouse to file your claim • Follow venue rules • File with clerk at the appropriate venue • Pay Filing Fee or Request Fee Waiver Packet • Trial will be set 30-60 days from filing

Defendant’s Counterclaim • Defendant may file a counterclaim (SC-120) • Must be filed at same venue as Plaintiff’s claim • Pay Filing Fee or Request Fee Waiver Packet • Defendant’s claim will be heard on same day as Plaintiff’s • All of the following procedures are the same for Defendant as for Plaintiff.

Serving the Claim • Certified Mail • Sheriff • Personal Service • Substituted Service

Certified Mail • Certified Mail through the clerk • Only the clerk can send claim through certified mail • The fee is $10 • You should call before the hearing to make sure that the clerk has filed a Proof of Service at least 5 court days before the hearing • Generally the least effective method of service

Sheriff • Sheriff • In Orange County, contact the Sheriff’s Office that is nearest the defendant • Fill out a Sheriff’s Instruction Sheet • The fee is $30 • Make sure the sheriff returns the Proof of Service to the clerk at least 5 court days before the hearing

Personal Service • Personal Service • Disinterested party- any person who is 18 years or older and who is not named on the claim (e.g.., neighbor, friend, relative, legal process server) - Personal service must be completed at least 15 days before the hearing (20 days if the defendant is out of county) • Make sure the Proof of Service is returned to the clerk at least 5 court days before the hearing

Substituted Service… • Substituted Service • If the defendant cannot be found at her home or workplace, your server can use this method • Your server will leave a copy of the claim at the defendant’s workplace, with a person who appears to be in charge OR at defendant’s home with a person who is at least 18 years old

Substituted Service • Substituted Service • A copy must also be mailed First Class to the address where the claim was delivered • Substituted service must be completed at least 25 days before the hearing (30 days if defendant lives outside of the county) - Make sure the Proof of Service is returned to the clerk at least 5 court days before the hearing

Getting Witnesses and Documents to Trial • Witness • Complete Small Claims Subpoena and Declaration (SC-107) • After clerk issues subpoena, have copy served on witness (the plaintiff may serve the subpoena) • Return proof of service • Witness can ask for $35 dollars a day and 20 cents per mile

Getting Witnesses and Documents to Trial • Documents • Complete Small Claims Subpoena and Declaration (SC-107) and check the box requesting witness/custodian of records to produce documents • Describe exactly which documents you need and the reason for your request (special rules apply for subpoenaing “consumer records”) • After clerk issues subpoena, have copy served on the witness/custodian of records • Return proof of service

Preparing for Hearing • Attend Small Claims hearings to understand courtroom process and atmosphere • Keep your opening statement brief and straight to the point • Make sure your evidence is easily understood and organized • Make 3 copies of everything (1 for you, 1 for the other party, 1 for the judge)

At the Hearing • Check in early with the bailiff • Before hearing, the bailiff will ask if you would like to try mediation. Both parties must agree. • If you go to court, speak only to the judge • Address the Judge as “Your Honor”

At the Hearing • Plaintiff presents their case first • Defendant will present their case when plaintiff is done • Judge will ask questions • Do not interrupt the judge at anytime

Judgment • Judge can make a decision at the hearing or take it under submission • Judge can make the Judgment conditional • You will receive the Judges final decision in the Notice of Entry of Judgment • You must wait 30 days from the date of mailing on the Notice of Entry of Judgment to begin collecting

Appeal • Only a losing defendant (or plaintiff who has lost a countersuit) may appeal • Must be filed no later than 30 days after the date of mailing on the Notice of Entry of Judgment • Results in a Trial de novo • Filing fee is $75.00 • Attorneys may represent the parties

Collect Your Judgment • You must take steps to collect your Judgment. The court will not do it for you • You can only collect from the debtor’s assets. If the debtor has no assets, you will not be able to collect your Judgment

Collection Methods • Application and Order to Produce Statement of Assets and to Appear for Examination • Record Real Property Lien • Garnish Wages

Collection Methods • Levy Bank Account • Till Tap • Keeper • Repossess • Third Party Levy/garnishment

Collection Resources • How To Collect When You Win a Lawsuit by Nolo Press • Sheriff’s Procedural Manual by California State Sheriff’s Association

FAQ • How do I locate the defendant? • What is the most I can bring an action for? • How many times can I bring an action in a year? • What is the proper venue for my case? • How do I serve the other party? • How do I add a spouse to a claim?

Small Claims Resources • Everybody’s Guide to Small Claims Court by Nolo Press • How to Collect When You Win a Lawsuit by Nolo Press • CCP 116.110-116.960 • Access to www.legalresolutions.com and www.occourts.org

Preparing and Presenting A Small Claims Case