Warning: Illegal string offset 'src' in /home/casmal5/public_html/wp/wp-content/plugins/jetpack/functions.opengraph.php on line 263

Author Archives: admin - Page 2

Small Claims Court Appeal

Appeal a Small Claims Court Case – Can I appeal?

small claims appeal

Small Claims Appeal

An appeal of a small claims court judgment is a request to the superior court to change the small claims court judge’s decision.  This entails another hearing and you must present your case again.

What is a “trial de novo”?

One name for a small claims appeal is a “trial de novo” which is a fancy legal term for “new trial.”  This means that your case is decided by a brand new judge from the beginning so you have to prepare for appeal all over again (like you prepared for the initial hearing).

The appeal takes place in the civil division of the superior court (not the small claims court division).  Because of this key difference, both you and the other party are allowed to bring an attorney to represent you at the new hearing.

Who can file an appeal in a small claims case?

Short answer–only the defendant.  Long answer–the plaintiff can also file an appeal but only if the defendant has filed a counterclaim against the plaintiff and the defendant prevails on the counterclaim.  Since an appeal for a small claims case is a new trial, the entire case is decided again from the beginning.

How is a small claims appeal filed?

The appeal must be filed within thirty days of the date the small claims judgment was mailed to you.  This date will appear on your copy of the small claims decision.  You must file a Notice of Appeal (Small Claims) (Form SC-140) with the small claims court.

After you file the Notice of Appeal, the court will mail you the date and time of the hearing on the appeal.  As mentioned above, the hearing will be in the civil decision of the superior court (which may be at a different courthouse than the courthouse you appeared at for the first hearing).

If you do not appear at the appeal, the judge will not hear your side of the case.

What happens at the trial on the appeal?

A new judge will hear all the evidence again and renders a decision.  The judge does not know what happened at the first trial, so this judge looks at the case as if it was being decided for the first time.

As stated above, either side may be represented by an attorney at a small claims appeal.  It is possible the judge may award you up to $150 in attorneys fees and $150 for your actual loss of earnings, transportation expenses, and lodging that you incurred for the appeal.

Additionally, if your side can prove the other side filed the appeal in bad faith with the intent to harass or delay you, or to encourage you to not pursue your claim, the judge may award reasonable and actual attorneys fees of up to $1000 and $1000 in actual loss of earnings, transportation expenses, and lodging incurred (and that are reasonable).

For example, if the judge finds the appeal was not in bad faith, you may have had to hire an attorney for $250.  Even though it cost you more than $150, you may only recover that amount unless there is bad faith.  The same goes for loss of earnings, transportation (think mileage) and lodging (if the court is far from where you live).

What happens after the decision on the appeal?

The decision on the appeal is final meaning it cannot be appealed again.

If you win the appeal…

…and are the plaintiff, once the court sends you notice that you have won the appeal, you may proceed with collection of your judgment.  There is no 30-day waiting period like there was after the original small claims trial.  (The purpose of the thirty day waiting period was to allow for the defendant to appeal).

…and are the defendant and you completely win the appeal, you owe no money.  🙂

If you lose the appeal…

You will have to pay the original judgment (or more if the judge found that you owe more on appeal).  The judge may order you to pay for the plaintiff’s court costs (such as filing fees and cost of service).  Interest accrues at the rate of 10% each year the judgment is not paid.

As mentioned above, you may be ordered to pay up to $150 in attorneys fees to the plaintiff as well as $150 in costs associated with the appeal (transportation, loss of earnings, and possibly lodging).

The worst thing that can happen to you is that the judge finds that you filed your appeal in bad faith.  The judge could award up to $1000 in attorneys fees and $1000 in travel costs (and loss of earnings).

What does it mean to file an appeal “in bad faith?”

The judge makes a finding that:

  1. You filed your appeal without strong support for your position;
  2. Your intent was to harass or delay the other party; or
  3. You filed your appeal to encourage the other side to drop their case.

California Small Claims Court FAQs

California Small Claims Court FAQs (Frequently Asked Questions)

Small Claims Court frequently asked questions

Small Claims Court FAQs

This is meant to be a quick stop to answer a variety of questions that many people have involving small claims court cases.  For more in depth information, we encourage you to view the other articles on our website.

What is small claims court?

A special court set up in California to handle disputes quickly, efficiently, and without the procedures and rules involved in every other court case.

Can I sue in small claims court?

Any mentally competent person who is eighteen years of age or an emancipated child may sue in small claims court.  (An emancipated minor is a minor whose parents no longer have control or custody of him or her-if you have to ask you are most likely not an emancipated minor).

What is the limit of how much money I can sue for?

A person cannot sure for more than $7,500 in a case.  A corporation (or other entity like the government) cannot sure for more than $5,000.  You can only file two claims per year for more than $2,500.  You can file as many claims as you want asking for $2500 or less.

A guarantor (a person who promises to be responsible for what another person owes) may only be sued for up to $4000 ($2,500 if they didn’t charge for the guarantee).  But if you are a person suing the Registrar of the Contractors’ State License Board, you can sue a guarantor for up to $7500.

Is there a cost to file a small claims court case?

Yes.  A filing fee is required and is based on the amount of your claim and the number of claims you have filed in the past twelve months.  If you filed twelve or less claims in the past twelve months, the filing fee is:

  • Suing for $0 through $1,500, the fee is $30
  • Suing for $1,500.01 through $5,000.00, the fee is $50
  • Suing for $5000.01 through $7,500.00, the fee is $75
If you filed more than twelve small claims court actions in the previous twelve months, the filing fee is $100 (no matter how much you are suing for).

Can I have an attorney?

You cannot have an attorney represent you in court.  However you are able to speak with an attorney before or after your hearing to answer any questions and/or ask for help preparing your case.  Our site has an in depth article detailing when you may see the other party represented by an attorney.

How long does it take for my case to be heard?

The Superior Courts of California are divided by counties.  So it varies within each county (depending on how backlogged the courts where you filed are).  Typically you will go to court between twenty and seventy days after your claim is filed (lately we are seeing hearings on the latter side of that time frame with many counties past the seventy days).

What types of cases can be filed in small claims court?

Many types of cases can be filed in small claims court.  The most common cases we see are automobile accidents, property damage, rent deposit disputes between a landlord and a tenant, and a collection of money owed.

What happens at the small claims court hearing?

The judge (check out our article on the type of judge you will see in small claims court) will listen to both sides of the story.  To help prepare your side, you should collect and provide to the court evidence like witnesses (who were there when the accident happened), photos (of the auto accident, your injuries, how clean your rental unit was when you left or how the damage was present when you moved in), any bills you received or sent to the defendant, any contracts that were signed between you and the other side, and any other relevant documents that help your case.

A judge may make a decision about your case at the hearing or mail it out later.


California Small Claims Court Rules

What are the California Small Claims court rules?

California Small Claims Court Rules

California Small Claims Court Rules

There are two types of rules that we use in California for small claims court cases.  State-wide rules and local rules and the names are very descriptive of what they are.  State-wide rules apply to the entire state of California (from Siskiyou to San Diego–North/South or the Pacific Ocean to the Arizona/Nevada border–West/East).

You know what is great?  Small claims court is intended to provide a venue that is easily accessible to people without any legal education or training.  There are no juries, no formal pleadings, rules of evidence, or findings in small claims court actions.  This is codified (fancy word for stated) in California Code of Civil Procedure section 116.120(b) which reads:

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.

What the court is saying here is we need to have a special system in place that makes it easy for nonlawyers (or lay people) to have their day in court.

In fact, the training that judges undertake encourage judges to take an active role in determining the facts that are in dispute by witnesses.  Judges may consult with witnesses informally (asking the witness questions straight from the bench).  Contrary to what you think, it is nothing like what you see on television with Judge Judy or some other infamous judge.  Here, the judge will likely be cordial, courteous, and polite with all the parties.

What rules does the judge follow in making a decision?

Common sense.  Seriously we’re not joking.  Decisions should be based on substantive law  and on the application of common sense.  So if you know substantive law before you file your small claims court case, you will already have a decent chance of knowing whether you will win or lose.

What are these state-wide rules?

Most of the state-wide rules pertain to the procedures you need to use during your small claims court actions.  When we say procedures, we mean the rules and directions you need to follow when filling out your small claim court forms, when you are serving a defendant, how much time you have to file an appeal, etc.  These rules can be found generally at California Code of Civil Procedure section 116.120 through 116.870.  These are available online.

Does the other side have to follow the rules?

Yes.  Both sides have to follow the rules.  This applies to you if you are the plaintiff (person bringing the claim) or the defendant (person being sued).

What else do the rules cover?

The procedural rules found in the Code of Civil Procedure outline the entire process from who may file a claim (a person/corporation/etc.), where the claim is to be filed (venue/jurisdiction), who may be sued (you can sue your landlord for your security deposit back here), to whether you can amend your claim, whether a defendant can file a claim against the plaintiff as well, states that there is no formal discovery, etc.

For the most part, the rules that govern small claims court cases in California are aimed to be the least obtrusive to the parties while still complying with a level of due process.  Due process is an abstract name we’ve given to a set of ideas we believe are required in order for a judicial process to be fair.  Things like, did both parties have adequate notice of the judicial hearing, did both parties have adequate time to prepare for the hearing, etc.

Questions regarding rules?  Feel free to leave your comments below and we are more than happy to help you understand the rules.

What forms do I need to file with the small claims court?

California Small Claims Court Forms

Type CA Small Claims Court FormsHandling a case in small claims court is a lot easier than most people think it would be.  In fact, the Judicial Council of California hosts a wide variety of fillable pdf forms that allow you to draft your claim or response on the computer.  These forms were updated January 1, 2011 by the Judicial Council to reflect changes made during the 2010 year.  We will review the basic forms needed for the plaintiff and defendant along with certain cases that will require additional forms.

Note: the drawback to these forms is that you cannot save them.  Thus you will fill out the form and then print it out.  I recommend printing out a copy (to review for typos and misspellings), making the corrections, and then printing out the second copy for the court.  Also, I’ve made all the links on this page to the forms open in a new window so that you can refer back to this page for assistance in completing the forms.

Plaintiff’s forms

If you want to take someone to small claims court, you need to fill out form SC-100.  Fill out the address on page 1, the information on page 2, and 3 and you are set.  Take this to your clerk’s office (located in your local county courthouse).

Note: as a Plaintiff, you waive your right to appeal by submitting your claim to small claims court.  This means that you are stuck with the court’s ruling and may not appeal it.

If there are more than two plaintiffs or more than two defendants, you will need to also fill out form SC-100A.  This is a simple form asking for information such as the name and address of the additional parties.

Defendant’s forms

After being served with a plaintiff’s claim, a defendant responds by filling out form SC-120.  Fill out the address in the upper right of the court on the first page (should be the same as the address listed on the paper you were served with by the plaintiff).  And fill out pages two and three.

Note: like the plaintiff, if you raise a claim in your response, you too waive your right to an appeal on that issue.  If the judge rules against you on the plaintiff’s claim, you still may appeal that issue.

Similar to the plaintiff above, the defendant will have to fill out form SC-120A if there are too many parties to list on form SC-120 in items one and two.

Request an Extension

Either the plaintiff or the defendant may file for an extension.  A plaintiff can request an extension if not all the defendants have been served.  A defendant can request an extension for a reason as well.  You need to fill out SC-150.  Note: If you are the plaintiff or the defendant check the date your case is scheduled for trial as early as possible.  If you have any possible conflict, we encourage you to fill out and file an extension as early as possible.  In fact, if you do not request it, you have to fill out a specific section (item 5) on form SC-150 explaining why you waited so long to ask for an extension.

Case Involving Attorneys’ Fees

A specific case that requires an additional form is a dispute involving  attorney-client fees.  Form SC-101 is required to be attached per Item 7 on form SC-100.  This form lets the court know that you are suing for a disagreement  for $5,000.00 in less in attorneys fees and that you have tried to solve the dispute through arbitration.  The form asks for some basic information including what the arbitrator’s decision was.  The second page also details what your rights are.  If you are a client in a dispute with an attorney, we strongly encourage you to read this form through prior to initiating your claim.

For a complete list of forms to use for your small claims court case, visit the California Judicial Council website forms section.  Once there, from the drop down menu select “Small Claims” and click the grey button below which reads “See Forms.”

Who will be the judge?

Small Claims Court Judge

Small Claims Court Judge

Most people’s knowledge of small claims court is limited to the People’s Court and Judge Judy.  And unfortunately, this leaves people with a very different perception of what to expect in small claims court.  We can’t tell you who your judge will be (as it even varies within counties), but we can give you some information about what kind of a judge you will likely see.

California Small Claims Court Judge – Not likely a judge

Your small claims court judge will likely not be a judge.  The current caseload in the California judicial system is so backlogged, it is easier for the court to have the judges handle matter that are REQUIRED to be handled by a judge.  You see, the California judicial system uses all types of persons in order to administer justice.  It uses retired judges to come in and fill in for a judge who is on vacation (or sick leave) as well as fill a vacant courtroom when a judge retires.  The system also uses Commissioners.  Commissioners have much of the same training and experience as a judge except they are appointed rather than elected (Note: judges can be appointed, but they must face an election after a certain number of years).  Commissioners are used by the judicial system to hear motions, temporary restraining orders, and other case management issues.

As the judicial system is so backlogged that commissioners are used in civil cases regardless of dollar amount, small claims courtrooms are often handled by attorneys acting as a Judge Pro Tem (fancy word meaning “for the time being.”)

Will I really have an attorney acting as my small claims court judge?

Yes.  The attorney will be acting as what is called a judge pro tem.  As the attorney is not a judge, both sides must stipulate to having the attorney hear the case.  If one side does not stipulate, the case may be required to be heard in a different courtroom, perhaps even on a different day altogether.

What training does a judge pro tem have?

A small claims court judge pro tem will have undergone training to make him or her eligible for the position of judge pro tem.  They will have sat through at least two separate courses (one dealing with judicial ethics and the other detailing the law necessary for a small claims court judge).

They are required to complete this training every three years.

Should I stipulate to the judge pro tem?

The decision is up to you.  With a judge pro tem, you will likely get someone who has handled these types of cases before and is more familiar with how small claims court cases are handled.  With a judge, all bets are off as to when this judge last received training for this area.  For example, the judge you end up with may be from family law and have no experience trying civil cases (small claims court case is a type of civil case-it does not involve depriving someone of life or liberty…only property).

Our recommendation-go down to the courtroom ahead of time and see what the judge is like (note some courts will rotate who through their pro tem judges so call the clerk’s office to find out who your judge will be and find out if they will be sitting as a small claims court judge prior to the date of your hearing.  We recommend doing this anyways as you will learn a lot by watching how the judge handles other cases.  You will learn how the judge rules and will be able to determine what the judge likes.  And what it often comes down to is a well thought out argument with no emotional words or verbal attacks against the other party.  The judge isn’t here to referee a verbal sparring match between you.  The one thing we do like about the small claims court shows on television is that the judges enforce order and do not allow the parties to engage in verbal spats (although they are often way more aggressive than real small claims court judges).

What has you experience been with judges or judges pro tem?  Let us know in the comments below.

California Small Claims Court Trends and Statistics

Small Claims Court Gavel

Small Claims Court Gavel

A while back, the California Judiciary released their annual report regarding case filings.  Relevant to this site, of course are the small claims court statistics.  It’s interesting to note that over the past decade there has been a general downward trend (from 1999-00 through 2006-07).  In the recent years, the numbers have remained somewhat consistent, fluctuating within about 6,000 of each other.

Here are the statistics for the previous ten years:

  • 1999-2000–320,754
  • 2000-2001–308,466
  • 2001-2002–319,165
  • 2002-2003–315,148
  • 2003-2004–284,096
  • 2004-2005–256,086
  • 2005-2006–236,526
  • 2006-2007–224,485
  • 2007-2008–227,733
  • 2008-2009–232,378

We think the increase in 2007-2008 and 2008-2009 is directly correlated to the state of the economy.  Sure foreclosures are up, but times are difficult for everyone (from people struggling to pay credit cards, rent, or other things.  Unfortunately, we thunk that when the 2009-2010 data is released, the number will be higher than the 232.378 we see for 2008-2009.

Looking at the appeals side, we’ve got data (that only goes back to 2003-2004).  Here’s our appeals data:

  • 2003-2004–10,793
  • 2004-2005–9,640
  • 2005-2006–9,081
  • 2006-2007–8,700
  • 2007-2008–9,031
  • 2008-2009–9,206

So why are we looking at this information?  Simple by dividing the number of small claims appeals by the number of cases for the year, we get the percentage of cases that are appealed.  Here’s the breakdown by year:

  • 2003-2004–3.79%
  • 2004-2005–3.76%
  • 2005-2006–3.83%
  • 2006-2007–3.87%
  • 2007-2008–3.96%
  • 2008-2009–3.96%

So, if you win, chances are good there won’t be an appeal by the defendant.

Representation in California Small Claims Court

Can Someone Else Represent Me in Small Claims Court in California?

The short answer is no.  The long answer is maybe.  In California you may only be represented by someone else if you are under eighteen or have been declared mentally incompetent by a court.  In these two situations you may be represented by a guardian ad litem.  A guardian ad litem is a legal term for a person who has been appointed by the court to take care of someone (usually a minor-someone under eighteen or who has been declared mentally incompetent by a court).  Note: If you are under eighteen but have been legally emancipated, you may represent yourself.

For those of you who are shy and introverted, this sounds like a huge barrier to your case.  However, the opposite is all true–the Defendant cannot hire an attorney to represent them.  The defendant must represent himself/herself in front of the court.

If the court decides that you are unable to properly present your claim or defense for any reason, the court may allow another person to assist you–however this person may NOT be an attorney.

The only time you will face an attorney in small claims court is if you are suing an attorney or law firm (as they are entitled to represent themselves).  Thus, don’t think that by bringing a small claims court case you will be facing an attorney.

There are a few exceptions to the rule that you must represent yourself:

  • If you are a business owner, you may be represented by a regular employee if the claim can be proved with account information and the regular employee has knowledge of that account
  • If you are a partnership, you may be represented by one of the partners.
  • If you are a corporation, you may be represented by an employee, officer, or director but ONLY if they have not been hired to represent the corporation.
  • If you are in the military, you may be represented by another person.  You will need to submit to the court information in the form of declarations which support your case.  These declarations should also assert that:
  1. You are serving on active duty in the armed forces
  2. You were assigned to your duty station after the case was started
  3. Your assignment lasts for more than six months.

What Role Would a Lawyer Have In My Small Claims Court Case?

In California, you cannot have a lawyer represent you in court.  You may consult an attorney to advise and assist you before or after you file a claim.  And based on the nature and complexity of your case, that may be an option you want to exercise.  However, fees charged by a lawyer are normally not recoverable as court costs or damages.


California Small Claims Court Demand Letter


small claims demand letter

small claims demand letter

Prior to beginning a California small claims court action, the plaintiff (person bringing the action) needs to send a demand letter to the defendant(s).  A demand letter is the court’s term for a letter asking the defendant to pay the money that the plaintiff is asking for.  It is actually a little more forceful than asking (hence the name “demand”) and more formal than email or a handwritten.

A written demand letter us best for this purpose for several reasons.  First, the demand letter will force you to set forth your case in writing.  This will force you to be concise and to the point regarding the dispute.  Second, by placing this in writing, you will be able to attach this to your initial filing with the court.  If you write the demand letter well, the court will be able to glance at your letter and quickly understand the nature of the dispute.  By crafting a good demand letter, you help shape how the court understands the dispute.  Finally, the demand letter lets the defendant know you mean business.  By placing your concerns in writing you are letting the defendant know you are serious about taking the matter to court.

Here are our tips on crafting a well written demand letter:

1.  Use a computer

As pretty as your handwriting may be, it is always easier on the eyes to read typed print.  The day of your small claims court hearing the court will be handling numerous matters.  Do not burden the judge or clerk by having to read your handwriting.  It is not putting your best foot forward.

2.  Begin by briefly reviewing the main facts of the dispute

Brevity is appreciated by an overworked judiciary.  In civil cases involving more money the Rules of Civil Procedure REQUIRE attorneys to keep their pleadings to the court below a certain page limit.  If you can sum up your case in 5-10 sentences, you are on your way to an excellent letter.

3.  Be Polite

Don’t fill those 5-10 sentences with a recitation of all the names that you and the defendant called each other leading up to you writing the letter.  You will look like nothing more than school kids on a playground at the time of your hearing.  Remember, this is your first impression in front of the judge who will be hearing your case.  Make it count.

4.  Be precise about asking what you want (and set a deadline)

The second to last sentence of your letter should sum up exactly what you want and set a firm deadline.  For example, “please return my entire security deposit to me within ten days of receipt of this letter.”   That way the defendant is on notice of what you are asking and is aware of the deadline to comply.

5.  End the letter by stating your intention to pursue the matter in Small Claims Court

Two reasons.  First, we’ve heard numerous defendants tell the judge at the time of the hearing, “I didn’t know he/she was serious or I would have paid.”  You’ll take this argument away from a defendant when you pull the letter out and tell the judge your last sentence to the defendant before filing was that you intended to pursue this matter in small claims court.

The second reason for this is that hopefully the defendant will take you seriously and perhaps open communication to settling the matter outside of court (which is something we always encourage here at CA Small Claims).  There will be an article on why we feel this way later.

6.  Last but not least, be sure to keep a copy of the demand letter

Self-explanatory.  This gets attached to your initial pleading with the court.

Finally, after drafting the letter, be sure to send it certified mail with a return receipt.  This will serve as proof if the case goes to trial that the defendant received your demand letter.


California Small Claims Statute of Limitations


Small Claims Court Statue of Limitations

How Quickly Must I File My Case in California Small Claims Court?

The Statute of Limitations is a legal term that asks simply whether the lawsuit or action was filed “in time.”   The time is different for the type of case and varies by each state.  What is nice about California is that the Statute of Limitations is the same throughout the state (from Modoc County all the way down to San Diego).

The statute of limitations acts as a dagger hanging over the head of the plaintiff.  If the plaintiff fails to file the action within the time required, the judge must dismiss the case as a matter of law (unless the statute of limitations was suspended and the time limit extended).

The statute of limitations or time which the plaintiff must file depends on the case.

  • Two years from the date of injury.  If the injury isn’t immediately discovered, two years from the date it is discovered.  A minor has until his/her 18th birthday to file a case (or the two years, whichever is longer).
  • In a case involving an oral contract, the statute of limitations is two years from the date the contract is broken.
  • In a case involving a written contract, the statute of limitations is three years from the date the contract is broken.
  • In a case involving fraud (someone lied to you or tricked you on purpose), you have three years after you learn of the fraud.
  • Government entities are handled differently.  Before a government or public entity may be sued, a written claim must be filed with the entity.  For cases involving personal injury or personal property damage, the claim must be filed within six months.  For cases involving breach of contract and damage to real property, you must file the claim within one year.  If your claim is rejected by the public entity (and they most always are), you must file your action within six months of the rejection or you’ll lose your right to sue (we will cover handling public entities in another article, but for now, just remember that they are treated differently).

The statute of limitations is a harsh rule.  If you file it one day late, the judge will dismiss your action as a matter of law (meaning you won’t even be able to argue the facts of your case).  The reason for this rule which sounds harsh and archaic, is to protect individuals from being sued for something that happened years before.  As time passes, memories fade, witnesses die, or move away, and clear details of the case often blur together.  For example, you probably remember what you had for breakfast today, but if  asked what you had for breakfast three weeks ago, you probably would not remember (unless the breakfast stood out in your mind for a unique reason–like it was your birthday and your spouse made you breakfast in bed).

Thus, it is in your best interest to file your claim earlier (remember the sooner you file the sooner you are likely to prevail).  Additionally, it will make it significantly easier for you to remember the specific details surrounding the case.