Category Archives: Before Filing

California Small Claims Court Rules

Posted by on July 19, 2011 3 comments

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?

Posted by on May 17, 2011 5 comments

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.”

Representation in California Small Claims Court

Posted by on March 8, 2011 2 comments

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

Posted by on March 8, 2011 No comments

 

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.