Small Claims Court

INTRODUCTION

Small claims court provides a way for persons to resolve disputes within its jurisdiction without the cost and time that regular court proceedings normally entail. Attorneys may not represent plaintiffs or defendants in small claims court which reduces costs as there are no attorney fees.  Also the proceedings are typically more informal allowing persons to represent themselves without having to master all the formal legal procedures which must be followed in regular court proceedings. This legal article reviews the basic information a person considering a small claims action will want to know including the procedures that apply, the jurisdictional limits, what types of cases may be filed, suggestions for preparing a case, and methods for collecting on a judgment.

I. SMALL CLAIMS COURT BASICS

Q 1. What is small claims court?

A The purpose and function of small claims court is described in the case of Sanderson v. Niemann (1941) 17 C.2d 563: ”The theory behind its organization is that only by escaping from the complexity and delay of the normal course of litigation could anything be gained in a legal proceeding which may involve a small sum. Consequently, the small claims court functions informally and expeditiously. The chief characteristics of its proceedings are that there are no attorneys, no pleadings and no legal rules of evidence; there are no juries, and no formal findings are made on the issues presented. At the hearings the presentation of evidence may be sharply curtailed, and the proceedings are often terminated in a short space of time. The awards—although made in accordance with substantive law—are often based on the application of common sense; and the spirit of compromise and conciliation attends the proceedings.“

A small claims court is a court of limited jurisdiction, only certain issues are heard by the court. The court can hear civil cases between private litigants without attorneys to represent them (except on appeal–see questions 23 and 41 below). Small claims court is a division of the local superior court (Cal. Code Civ. Proc. § 116.210). It can be used for most disputes up to $10,000.00 for a natural person (Cal. Code Civ. Proc. § 116.221). See Question 4 for the specific dollar and other limits.

If a plaintiff loses in small claims court, there is no right of appeal. However, the defendant can appeal if he or she loses (Cal. Code Civ. Proc. § 116.710(b)). See Section V, Vacating or Appealing The Decision below.

Q 2. What types of claims can be filed in small claims court?

A The specific types of claims that can be filed in small claims include most civil claims for recovery of money, rental security deposit disputes, good faith deposit in property purchase agreement disputes, for failure to repay a debt, failure to deliver merchandise, selling faulty goods, damaging the property of another person, personal injuries including motor vehicle injuries, and failure to pay rent. Small claims court cannot be used for unlawful detainer (eviction) proceedings. Evictions proceedings must be brought in Superior Court (Cal. Code Civ. Proc. § 116.220).

Furthermore, a small claims court, in suits where money damages are sought, may grant equitable relief such as contract rescission, restitution, reformation, and specific performance, in lieu of, or addition to, money damages (Cal. Code Civ. Proc. § 116.220(b)).   However, since most real property is likely to exceed the jurisdictional amount ($10,000 maximum), small claims court generally won’t work for the equitable relief for breach of a real estate sales contract.

Q 3. Can a party get assistance with small claims court procedures and rules from the court?

A Yes, every court has a small claims court advisor who will provide advice to parties.  Assistance can, depending on the court, include assistance with filling out the forms.

Q 4. What is the maximum amount of a claim that can be filed in small claims court?

A The maximum amount of the claim depends to a large degree on the person making the claim and the type of claim.

The current maximum for most claims is $10,000.00 for a natural person and $5,000 for a legal non-natural person (e.g., corporation, LLC, LLP) (Cal. Code Civ. Proc. §§ 116.220, 116.221). Furthermore, a claimant may not file more than two claims of more than $2,500.00, in a small claims court anywhere in the state of California, during a calendar year (Cal. Code Civ. Proc. § 116.231).

There are some notable exceptions to the maximums stated above.  The maximum claim for a personal injury action arising from an auto accident is $7,500, if the defendant carries liability insurance The maximum claim that can be filed against a “guarantor” of another person’s debt is $6,500 (natural person plaintiff) or $4,000.00 (legal non-natural person) ($2,500 if they didn’t charge a fee for the guarantor or surety services) (Cal. Code Civ. Proc. § 116.220(c)).

A plaintiff who is owed more money can waive the right to the excess in order to sue in small claims court (Cal. Code Civ. Proc. § 116.220(d)). For example, if the good faith deposit is $15,000.00 and the buyer has breached the contract, the seller (or buyer) can sue the buyer (or seller) in small claims court for $10,000 and waive the right to the rest.

Q 5. Who can be a party in small claims court?

A Any person who is at least 18 years of age, or legally emancipated, and mentally competent can be a party to a small claims action (Cal. Code Civ. Proc. § 116.410(a)). A minor or incompetent person may appear by a guardian ad litem (Cal. Code Civ. Proc. § 116.410(b)).

Also a corporation or other legally recognized entity may appear and participate in a small claims action but only through a regular employee, or a duly appointed or elected officer or director, or in the case of a partnership, a partner, engaged for purposes other than solely representing the party in court (Cal. Code Civ. Proc. § 116.540(c)).

Q 6. Who can appear on behalf of a homeowners’ association in small claims court?

A An agent, a management company representative, or bookkeeper of the homeowners’ association (Cal. Code Civ. Proc. § 116.540(i)).

Q 7. Can a property manager appear on behalf of a landlord in small claims court?

A Yes, but only if the owner has retained the property manager principally to manage the rental of that property in question and not principally to represent the owner in small claims court, and the claim must relate to that property (Cal. Code Civ. Proc. § 116.540(h)).

Q 8. Can a sole proprietorship have someone else appear on behalf of the business in small claims court?

A Yes if both of the following conditions are satisfied:

  1. The claim can be proved or disputed by evidence of an account that is considered a “business record” (as defined in California Evidence Code § 1271) and there is no other issue of fact in the case; and
  2. The representative is a regular employee of the owner (the sole proprietorship) for purposes other than solely to represent the owner in a small claims action and is qualified to testify to the identity and mode of preparation of the business record.

(Cal. Code Civ. Proc. § 116.540(d).)

Q 9. Can a plaintiff sue a defendant who resides out of state?

A As a general rule, a defendant must be served with the small claims court action while he or she is in the state of California (with some exceptions see questions 10  below for an example of an exception), so if  the defendant returns to California and the plaintiff is able to serve him or her that would be acceptable (Cal. Code Civ. Proc. section 116.340 (e). However, if the defendant has moved out and will not return for the foreseeable future, the plaintiff would not be able to use small claims as a venue for the action because he or she would be unable to serve the defendant in the state.

Q 10. Can a buyer sue an out-of-state REO lender or out of state owner in small claims court for return of the good faith deposit?

A Yes. Any owner of real property who resides in another state but owns property in California may be sued in small claims court if the claim relates to the California property. (Cal. Code Civ. Proc. § 116.340(f).)  Also keep in mind that most large lenders even if based out of state, since they do business in this state, are registered with the Secretary of State in California and have a designated agent for service in this state.

Q 11. Who can appear on behalf of the defendant out-of-state REO lender or out of state property owner in small claims court?

A A defendant who is a nonresident owner of real property may defend against a claim relating to that property without personally appearing by doing the following:

  1. Submitting written declarations to serve as evidence supporting his or her defense, or
  2. Allowing another individual to appear and participate on his or her behalf if that individual is serving without compensation and has appeared in small claims actions on behalf of others no more than four times during the calendar year, or
  3. Both options (1) and (2).

(Cal. Code Civ. Proc. § 116.540(g).)

Q 12. If someone in Questions 6 through 11 is appearing on behalf of another in small claims court, must that individual provide any special documentation to the court?

A Yes. The individual must file a declaration stating (1) that the individual is authorized to appear for the party, (2) the basis for that authorization, (3) if applicable, the individual must state that he or she is not employed solely to represent the party in small claims court. In addition if someone is representing a nonresident owner of real property (as in question 10), the declaration must also state that the representative is serving without compensation, and has appeared in small claims actions on behalf of others no more than four times during the calendar year. (Cal. Code Civ. Proc. § 116.540(j).)

Q 13. Can an assignee to a contract sue in small claims court?

A No (Cal. Code Civ. Proc. § 116.420(a); Merchants Service Co. v. Small Claims Court of City & County of San Francisco (1950) 35 Cal. 2d 109). However, a bankruptcy trustee or the holder of a security agreement can sue in small claims court (Cal. Code Civ. Proc. § 116.420(b)).

Q 14. Where does a plaintiff file his or her small claims action?

A Court rules dictate where a small claims action must be filed depending on various situations. Venue information is also contained in the following Information for Plaintiff form available athttp://www.courts.ca.gov/documents/sc100info.pdf or from the small claims court clerk. (See Cal. Code Civ. Proc. § 116.370.)

The general rule is that the plaintiff files a claim where the defendant lives or has its principal place of business (Cal. Code of Civ. Proc. section 395). However, the following are rules for various specific situations which could apply to real estate transactions:

Contract Claims: The claim may be filed in the county in which the contract was signed, where the contract was breached, or where the contract was to be carried out. The plaintiff may also file where the defendant lives or does business (Cal. Code of Civ. Proc. § 395).

Claims regarding purchases:  A plaintiff suing a seller or service provider for goods or services bought by the buyer: The buyer can sue the seller in the county in which the buyer lives, where the buyer lived when the item or service was purchased or where the buyer bought or paid or the item or service (Cal. Code of Civ. Proc. § 395).

Real Property Claims: For most cases involving real property, or of an estate or interest therein, for injuries to real property, the county in which the real property is located.

There can be other issues which may determine venue, a person involved with a small claims action should consult and confirm venue with the court’s small claims court advisor.

Q 15. How does a plaintiff start a small claims action?

A The plaintiff, the person filing the suit, files a written claim in the office of the clerk of the small claims court, and pays the court mandated filing fee.  If a person does not have the means to pay the filing fee, fee waivers forms are available and may allow for a partial or full waiver of the filing fees. The claim is filed on a form called Plaintiff’s Claim and ORDER to Go to Small Claims Court (small claims), which is available here:   http://www.courts.ca.gov/documents/sc100.pdf  or can be obtained from the small claims court clerk  (Cal. Code Civ. Proc. § 116.320). The small claims court clerk will also set a date for trial at the time of filing (Cal. Code Civ. Proc. § 116.330).

Before filing a claim, the plaintiff should review the Information for the Plaintiff form which is available here http://www.courts.ca.gov/documents/sc100info.pdf  or can be obtained from the small claims court clerk  which explains the small claims process.  It is also highly advisable for a plaintiff to talk to the court’s small claims advisor, available at every court, for assistance with the forms and questions.

Q 16. Can a party request to change the court date once it has been set?

A Either the plaintiff or the defendant can request that the court change the date of the hearing The request must be in writing, sent at least 10 days before the hearing. There is a fee for requesting a continuance. On the date of making the written request, the person requesting the continuance must mail or personally deliver a copy of the request to the other party. However, the change is up to the discretion of the court. If the court agrees to make a change to the date, the court notifies all the parties by mail of the new hearing date, time, and place. (Cal. Code Civ. Proc. § 116.570.) If the court does not change the date, both parties must appear on the scheduled date to prosecute or defend the claim.

Q 17. How important is it to get the Defendant’s information completely correct?

A It is important that the defendant’s name be accurately stated. Full names of defendants are preferable. If a defendant does business under a fictitious name, it is best to name the individual defendant and the fictitious name. Examples of some ways to name defendants are as follows:

Individual: SAMUEL LANGHORNE CLEMENS

Multiple Individuals: SAMUEL LANGHORNE CLEMENS and HESTER PRYNNE

Sole Proprietorship: SAMUEL LANGHORNE CLEMENS, individually and doing business as MARK TWAIN

Partnership: SAMUEL LANGHORNE CLEMENS and HESTER PRYNNE, individually and doing business as MULTI-CENTURY PRODUCTIONS

Corporation: NAME THAT CORPORATION, INC., or NAME THAT CORPORATION, a corporation

Government: STATE OF CALIFORNIA, or CITY OF NORTHERN LIGHTS

Information on business names and ownership can often be obtained from the county clerk (for fictitious business name filing), the city or county clerk (for business licenses), or the California Secretary of State (for information on corporations and limited partnerships).

Q 18. How long does a party have to file a case?

A It depends on the kind of case the plaintiff is filing. The law sets maximum periods in which to file specific types of claims. These time limits are called statutes of limitations.

Claims against government agencies have special rules. Generally you must first file a claim directly with the agency within a very short period. If the claim is denied, you can then sue in court. A person can use small claims court if the claim is within the small claims dollar limits. Under some circumstances statutes of limitations can be extended. This may apply, for example, if the claimant is a minor. Statutes of limitations are complex.

A party to a small claims action should review the law on statutes of limitations. A party should ask the small claims advisor for specific information on the type of claim that the party is involved in. Remember, a person may lose a claim simply by waiting too long to file. Information of statutes of limitation are also available in the C.A.R articles: Statute of Limitations: Deadline on Time to Sue, and Statutes of Limitations: The Lifespan of a Legal Claim.

Q 19. Are small claims procedures the same in every state?

A No. Not all states have a small claims court. While most states do have a small claims system, the types of cases that may be filed, dollar limits, and procedural rules vary greatly from state to state.

Q 20. Do all counties in California have a small claims court?

A Yes. The legislature has provided for the small claims court systems by enacting comprehensive rules in the Code of Civil Procedure. The rules apply in all of California’s 58 counties (Cal. Code Civ. Proc. § 116.210).

Q 21. What type of judge decides small claims cases?

A This varies depending on the court. Small claims court cases may be heard by a judge, a court commissioner, or a judge pro tem. A judge pro tem is a person who is appointed by the presiding judge of the local superior court to temporarily act as a judge. This procedure is prescribed by the California Constitution. Usually, judges pro tem are practicing attorneys who are members of the State Bar of California.

Parties to a lawsuit have a right in California to have their case heard by a judge. Therefore, before the small claims case is heard, the plaintiff and defendant will be asked whether they consent to the case being heard by a judge pro tem or court commissioner if the court has scheduled the case for a judge pro tem or court commissioner. If either party objects, the clerk will either transfer the case to a judge or if a party is objecting solely to a judge pro tem possibly to a  court commissioner, or reschedule the case to a later date for that purpose. (Cal. Code Civ. Proc. § 116.240.)

Q 22. Can the defendant in a small claims action file a claim in the same action (i.e., counter sue) against the plaintiff?

A Yes, if the defendant has claims against the plaintiff arising from the same matter, the defendant may file a counterclaim (Cal. Code Civ. Proc. § 116.360).

Q 23. Can either the plaintiff or the defendant be represented by an attorney in small claims court?

A With certain limited exceptions an attorney may not represent a party at the initial hearing (Cal. Code Civ. Proc. § 116.530(a)).

An attorney may appear in small claims court at the initial hearing under the following uncommon specific circumstances:

  1. as a party to the action;
  2. by or against a partnership in which he or she is a general partner and in which all the partners are attorneys;
  3. by or against a professional corporation of which he or she is an officer or director and of which all other officers and directors are attorneys.

(Cal. Code Civ. Proc. § 116.530(b)).

In addition, an attorney may be used in connection with the enforcement of a judgment (Cal. Code Civ. Proc. § 116.530(c)(4)).

However, if the defendant appeals a loss, then both parties may use attorneys at the appeal (Cal. Code Civ. Proc. §§ 116.530(c)(3), 116.770(c)).

Q 24. Is there a jury in small claims cases?

A No. A judge, court commissioner, or judge pro tem (an attorney acting as a temporary judge) decides all relevant legal and factual issues (Sanderson v. Niemann (1941) 17 C.2d 563).

Q 25. Is pretrial discovery (depositions, interrogatories, inspections of documents, etc.) permitted in small claims cases?

A No (Cal. Code Civ. Proc. § 116.310). However, you can subpoena witnesses to appear at the hearing. See Question 31 below.

II. SERVICE OF PROCESS

Q 26. How does the defendant receive notice of the small claims action I have filed?

A Copies of the papers a plaintiff files must be served, on the defendant. This is referred to as service of process. It is intended to make sure that the defendant has an opportunity to defend against the claim. In small claims cases, the following methods of service of process may be used:

1.   Personal Service. The Marshal, the Sheriff, a registered process server, or any person over 18 years old who is “not a party” to the claim may serve the papers on the defendant. The process server must give copies of the papers to the defendant personally. The process server then signs a Proof of Service form which must be filed with the small claims court (Cal. Code Civ. Proc. §§ 116.340(a)(2)). Proof of Service must be filed at least five days before the hearing (Cal. Code Civ. Proc. §§ 116.340(c)).

2.   Substituted Service. The marshal, the sheriff, a registered process server, or any person over 18 years old who is not a party to the claim may serve the papers on someone else, on the defendant’s behalf by following all the following steps:

  • Leave copies of the papers at the defendant’s residence or business address, with a person over 18 years old who appears to be in charge. Ask for the person’s name, position, and relationship to the defendant. Tell the person what the papers are.
  • Mail copies of the papers to the defendant at the address where the papers were left. Mailing must be by first class mail, postage prepaid.
  • Complete and sign a Proof of Service form which must be filed with the small claims court. Proof of Service must be filed at least five days before the hearing (Cal. Code Civ. Proc. §§ 116.340(c)).

The law permits substituted service “without the need to attempt personal service on the defendant” (Cal. Code Civ. Proc. §§ 116.340(a)(3)).

3.   Certified Mail Service. The small claims court clerk can serve the papers by mailing copies of the documents to the defendant by certified mail, return receipt requested, postage prepaid Only the clerk can do this, not the plaintiff or anyone else. The small claims court will charge a small fee for this service. Certified mail service is often the easiest and least expensive method. Certified mail service can only be used in small claims cases, not in other types of lawsuits. (Cal. Code Civ. Proc. §§ 116.340(a)(1).)

To be valid, the defendant must accept the certified mail. If the defendant refuses delivery, another method must be used. Also, in some cases the judge may not consider the service valid if the return receipt cannot be read and the defendant does not appear at the trial. In this case another method must be used. (Cal. Code Civ. Proc. §§ 116.340(d).)

Note: The defendant must be served with the plaintiff’s Claim and Order to Defendant, by one of the three allowable methods, at least 15 days before the trial if the defendant lives or has a business in the same county as the court. The defendant must be served at least 20 days before the trial if the defendant does not live or have a business in the same county. (Cal. Code Civ. Proc. § 116.340(b).) If service of process is not completed on time, the clerk will reschedule the hearing. The Proof of Service must be filed with the clerk at least 5 days before the hearing (Cal. Code Civ. Proc. § 116.340(c)).

Q 27. What if the plaintiff is unable to serve the defendant?

A If the plaintiff is unable to serve the other party and therefore, is not able to provide a proof of service to the clerk, the judge, upon request will either postpone the hearing or dismiss your case. In small claims cases you do not have the option of service of process by publication as you would in superior court (i.e., an announcement of the case in a newspaper of general circulation) (Cal. Code Civ. Proc. § 415.50). Therefore, you need to find the defendant and serve him or her in order to proceed with a small claims action.

Q 28. Can a plaintiff use the certified mail service of process method if all the plaintiff has is the defendant’s P.O. box?

A No. However, if the plaintiff has the defendant’s post office box, the plaintiff may be able to obtain the street address. The plaintiff must provide the post office with a written statement indicating that the address is required to serve legal papers in a pending action in small claims court. If the post office manager refuses, a plaintiff may refer them to the Post Office’s Administrative Support Manual Section 352.44e(2). (39 C.F.R. 265.6(d)(4)(i) and (d)(5)(ii).)

Q 29. How do I serve a corporation, partnership, or LLC?

A The following is a summary of who to serve depending on the legal entity being served:

  • Sole Proprietorship: Service is on the owner. If the business has a fictitious business name, the owner’s name can be obtained by checking with the county fictitious business name office to discover the owner’s name and address. Depending on the county, there may be a fee to locate a particular business.
  • Corporation: Serve an officer (president, CEO, vice president, secretary or assistant secretary, treasurer or assistant treasurer, controller, CFO), general manager, or the agent for service of process (Cal. Code Civ. Proc. § 416.10). You may obtain the name of the agent for service of process from the California Secretary of State. Information is available online at http://kepler.sos.ca.gov/list.html.
[Note: If the corporation is a bank, service of the summons and complaint may also be made to a cashier or assistant cashier (Cal. Code Civ. Proc. § 416.10 (c)).]
  • General Partnership: Serve the general partner, general manager or agent for service of process (Cal. Code Civ. Proc. § 416.40).
  • Limited Partnership: Serve the general partner, general manager or agent for service of process (Cal. Code Civ. Proc. § 416.40). Information may be available online at http://kepler.sos.ca.gov/list.html.
  • Limited Liability Company (LLC): Serve the agent for service of process. Information is available online at http://kepler.sos.ca.gov/list.html.

III. PREPARING FOR THE TRIAL

Q 30. What types of things should a party to a small claims court action to prior to the court date?

A A party, plaintiff or defendant should think through his or her case in detail beforehand. It is often a good idea for a party to practice presenting his or her case to a friend. Remember that the judge is not familiar with the facts of your situation, and has no preconceived idea of the case. Usually a party will have only a few minutes to present his or her side of the case. Therefore, it is important to present the case in a logical way.

If there are papers or other evidence that will help the case, the party should have them with him or her when at the trial. It is a good idea to have three copies of every document (one for the judge, one for the other party, and one for the party). It’s also a good idea for a party which has many documents to label and name them so that the person does not have to fumble through them when presenting the case.

A party should also consider making brief notes of what he or she plans to say at the trial. This does not mean a party should just read a presentation but rather, notes can often help to keep the presentation flowing, and to can help a party to remember not to skip any important points.

Q 31. Can a party call witnesses?

A Yes. A party may call witnesses to the trial on his or her behalf. The party must arrange to have them in court at the time of trial. A party can do this either by having the witness served with a court-issued subpoena, which orders them to appear for trial as a witness, or by arranging with them informally to appear (Cal. Code Civ. Proc. § 116.520.).

In order to subpoena a witness, a party should contact the small claims court clerk to obtain the necessary forms. The court’s small claims court advisor may be able to help with filling out the forms. The subpoena can be served by a sheriff, a registered process server, or a person over 18 years old who is not a party to the dispute. If a witness who is subpoenaed fails to show up in small claims court, the court will usually postpone the trial on request to be fair to the party who subpoenaed the witness. The subpoenaed witness who does not appear can be ordered back the next time, and can also be fined or even put in jail for failure to appear.

Witnesses are entitled to receive a witness fee ($35 per day) and mileage traveled both ways (20 cents per mile) from the requesting party (Cal. Gov’t Code § 68093). If the witness asks to be paid, bring this money when asking for the subpoena.

Arranging with a witness informally to be present at trial is effective, but only if the witness actually shows up.  Informal arrangement work best with a person who a party knows is trustworthy and will appear. If this type of witness does not appear, the court probably will not postpone the trial, and you must be prepared to proceed without this witness.

Q 32. How can a party get a witness to bring papers or other documentary evidence to the hearing?

A A party can ask the clerk to issue a subpoena duces tecum. This is an order requiring a person to bring to court the items that a party requests, such as papers, photographs, business records or other evidence. A subpoena duces tecum can be directed to a party to the lawsuit, or to someone else. It is important for a party to be specific in the request, including being specific about what items are requested, the person who has them, and his or her address. Ask the small claims court clerk or small claims advisor for further information, including costs.

As with a witness, if the party knows and trusts the person in possession of the documents the party can simply request that the person come to the court with the documents or other evidence in his or her possession.

Q 33. What if my witness cannot appear?

A Small claims court, may allow hearsay evidence. In other words, a party may present a letter or other written document containing the witness’s statement. Of course, it’s preferable to have a witness appear in court as it is very likely that a judge will not give as much weight to evidence where the person presenting is not available to be cross-examined by the other party or answer questions from the Judge.

IV. TRIAL PROCEDURE

Q 34. What procedure will be followed at the trial?

A The procedure will be explained before the hearing, by the judge or some other court officer.  The plaintiff, the defendant, and any witnesses will be asked to take an oath (a person may also request an affirmation in lieu of an oath) swearing or promising to tell the truth.

It is a good idea for a party to watch several cases before going to court, ideally before the day of court or at least before the party’s case is called. This will give the party an idea of what the judge expects and how the procedures work in practice. It may also help a party to feel more comfortable with the procedure.

Each party will have the opportunity to ask questions of the other party and of any witnesses the other party calls. The judge usually gives both sides several opportunities to speak, so that the plaintiff and the defendant can each respond to the statements made by the other party. Remember that the goal of the small claims court is to give each side a fair chance to be heard by an impartial judge.

Q 35. What happens if the plaintiff or defendant does not appear at the trial?

A If the defendant does not appear and the judge decides that service of process was properly done, the plaintiff will be allowed to prove up his or her case. The judge will then enter judgment for the plaintiff if the judge decides that the claim is valid. This type of judgment is called a default judgment. If the judge decides the claim is not valid, he or she will enter judgment for the defendant.

If the plaintiff does not appear at the trial, the case will probably be dismissed without prejudice. This means that the case can be re-filed later. The court can also dismiss the case with prejudice so that it cannot be re-filed. The court can also remove the case from the calendar. This means that a new trial date will have to be set.

Q 36. When will the parties receive the judge’s decision?

A After the trial, the judge will make a decision. If the judge announces the decision in court, the plaintiff and the defendant will receive a Notice of Entry of Judgment at that time.

Sometimes the judge may take the case under submission. This means the judge will decide the case later, perhaps after researching a legal issue or thinking about the facts more. If the judge takes the case under submission, the plaintiff and the defendant will receive the Notice of Entry of Judgment in the mail.

Q 37. If the winning party entitled to recover the costs of suit and interest on the judgment?

A Yes, the winning party can recover court filing fees, service of process fees, and witness fees (not including expert witnesses). There are limits on some of these costs.

The judge may also allow other types of costs. Be prepared to explain what amounts you have paid and for what items. It is important to bring receipts to the trial with you. The judgment creditor (the party who wins) is automatically entitled to receive interest on the judgment from the date of judgment to the date it is paid. The current interest rate set by the legislature is 10 percent per year(Cal. Code Civ. Proc. §§ 116.610(a), (g), 116.820(c)).

V. VACATING OR APPEALING THE DECISION

Q 38. What is a Motion to Vacate Judgment?

A It is a formal request asking the court to vacate, or eliminate, an earlier judgment.

A plaintiff or defendant who did not appear at trial and against whom a judgment was entered may file a Motion to Vacate Judgment. The plaintiff in a small claims action has no right to appeal the judgment, but a plaintiff who did not appear at the hearing may file a Motion to Vacate Judgment. The motion must be filed within 30 days after the clerk mails Notice of Entry of Judgment. If the motion is granted, the court will schedule a new trial date.

A defendant who did not appear at the hearing cannot appeal the judgment, but may file a Motion to Vacate the Judgment. If a defendant’s Motion to Vacate a default judgment is denied, the defendant can appeal the denial to the Superior Court (Cal. Code Civ. Proc. §§ 116.710, 116.720, 116.730).

A defendant may also file a Motion to Vacate Judgment if he/she was not properly served with the claim and did not appear at trial. In small claims court this type of motion must be filed within 180 days after the defendant “discovers or should have discovered that judgment was entered against the defendant” (Cal. Code Civ. Proc. § 116.740).

Q 39. Can a small claims court judgment be appealed?

A The plaintiff cannot appeal a small claims decision based on the plaintiff’s claim, regardless of whether he or she won or lost. This means, for example, that a plaintiff who wins the case on his or her claim, but who believes that he or she should have received a larger amount, cannot appeal the decision. Similarly, a plaintiff who lost the decision cannot appeal. The plaintiff, however, can appeal a decision based on a claim filed by the defendant (i.e., the defendant’s counter claim) (Cal. Code Civ. Proc. § 116.710).

The defendant can appeal a small claims decision based on the plaintiff’s claim if he or she is not satisfied with it. The defendant cannot appeal a decision based on a claim filed by the defendant (the defendant’s counter claim) (Cal. Code Civ. Proc. § 116.710).

Q 40. What procedure must a defendant follow to file an appeal from a small claims case?

A The appeal must be filed within 30 calendar days after the Notice of Entry of Judgment is mailed or given to the defendant by the small claims court clerk (Cal. Code Civ. Proc. § 116.750). The appeal should be filed on a court-prescribed form, in the same county where the Small claims court is located. The defendant must pay a filing fee when the appeal is filed. The fee varies from county to county.

Q 41. How is the appeal handled?

A The appeal is heard in the superior court for the county in which the small claims court is located. The superior court clerk will notify the plaintiff and defendant of the date scheduled for the appeal hearing. Unlike appeals of other types, in small claims court appeals the earlier result is disregarded and the dispute is heard as a trial de novo, or new trial (Cal. Code Civ. Proc. § 116.770). There is no jury in small claims court appeals (Cal. Code Civ. Proc. § 116.770(b)). There is no further appeal of a small claims case beyond the superior court (Cal. Code Civ. Proc. § 116.780).

Parties can be represented by attorneys in the appeal, but they are not required to have attorneys. Whether or not a party has an attorney in the appeal, the superior court will conduct the appeal hearing according to special rules for small claims hearings. (Cal. Code Civ. Proc. § 116.770.) The maximum jurisdictional limit in the appeal is the same as in the Small claims court case. After the appeal hearing, a new Notice of Entry of Judgment will be sent to both sides. If the new judgment is for the plaintiff, the court may also include up to $150.00 in plaintiff’s attorney fees in the judgment. If the court finds that the appeal was without substantial merit, not based on good faith, and intended to harass or delay the plaintiff, or force him or her to abandon the claim, the court can also award up to $1,000.00 in plaintiff’s attorney fees. (Cal. Code Civ. Proc. §§ 116.780(c), 116.790.)

VI. COLLECTING THE small claims JUDGMENT

Q 42. How can a party collect the money she or he is owed on a small claims court judgment?

A A judgment of the small claims court is enforceable 30 days after the entry of the judgment, in the same way as judgments of the superior court (Cal. Code Civ. Proc. §§ 116.810, 116.820). At the time judgment is rendered or the Notice of Entry of Judgment is mailed to the parties, the clerk must deliver or mail to the judgment debtor (the person who lost) a form containing questions regarding the nature and location of any assets of the judgment debtor (Cal. Code Civ. Proc. § 116.830(a)). The judgment debtor has 30 days to complete the form and deliver it to the judgment creditor (the person who won) (Cal. Code Civ. Proc. § 116.830(b)). If the judgment debtor refuses to comply the judgment creditor may request the court to apply sanctions, “including arrest and attorney’s fees” for contempt of court which the court may impose if it finds the failure to comply is “willful”(Cal. Code Civ. Proc. § 116.830(d)).

A party may wish to see if the debtor will simply pay the debt without compulsion.  While this may seem unlikely, many debtors do not wish the adverse credit impact of an unsatisfied judgment on their record and may just pay the amount owed.  Also, a party may wish to consider providing an incentive for the other party to pay by agreeing to accept less than the full amount in order to resolve the collection issues quickly. A settlement for less than the full amount gives an incentive to the other party to pay the amount due and may be worth it to the judgment creditor compared to the time and problems involved in trying other collection methods.

If informal methods fail, a party can start the process to get the sheriff to execute the judgment against property owned by the judgment debtor (such as a bank account or real property) or may also wish to consider hiring a collection agency which will typically take a percentage of the judgment the agency collects. The party must first find the property to pursue.

Collection efforts against the judgment debtor can include obtaining a wage garnishment, and/or going after real property, or other assets of the judgment debtor. The process of pursuing the assets or wages of the judgment debtor typically begins with the party filling out a Writ of Execution form and filing it with the small claims clerk of the court. Depending on the court, the court may simply review the form and grant the writ or alternatively the party may have to appear before the judge and sometimes may actually have to notice the other party that a writ is being pursued. A party should check with the court and or small claims court advisor for further advice.

In order to put liens against property and pursue other collection efforts a party may also obtain an Abstract of Judgment.   An Abstract of Judgment is a document used to place a lien on real property owned or later acquired by the judgment debtor (Cal. Code Civ. Proc. § 674). To do this, the Abstract of Judgment must be recorded in the office of the County Recorder. Since real property records are kept separately for each of California’s 58 counties, an Abstract of Judgment must be recorded in each county where the judgment creditor wants to place a lien on real property.

A recorded Abstract of Judgment generally remains valid and creates a lien on the judgment debtor’s real property for up to 10 years after the judgment is entered (not the date it is recorded), or until the judgment is paid.

An Abstract of Judgment is issued by the Small claims court clerk upon payment of a small fee. The County Recorder charges a separate fee for recording the Abstract.

Q 43. Are some types of property exempt from being attached or otherwise pursued?

A Yes. Some types of property are exempt from execution. This includes a debtor’s equity in his or her residence, up to the homestead limits. Exempt property also includes an automobile up to a certain value. Some other types of property are exempt. Salary or beyond a certain amount, generally 25%, of the debtor’s salary are exempt from garnishment.  The amounts and types of exemptions are detailed, and change from time to time.

Q 44. How long do I have to obtain my judgment?

A A judgment is enforceable for an initial ten year period.  A judgment may be renewed prior the expiration of the ten year period for another ten year period.

Q 45. Where can I get more information on enforcing a judgment?

A For additional information on enforcing a judgment, you may be able to obtain some information from small claims court advisor.

VII. AFTER PAYMENT

Q 46. Is there anything the judgment creditor must do after the small claims court judgment is paid?

A Yes. If a party is the judgment creditor (the party who won the case and received a judgment in his or her favor), the judgment creditor must sign a Satisfaction of Judgment once the judgment debtor satisfies the debt. The Notice of Entry of Judgment form has a space for this. The judgment creditor may use the space on that form, or a separate Satisfaction of Judgment form.

The Satisfaction of Judgment must be filed with the small claims court within 14 days after payment. This is important so that the court record will show that no money or other performance is still due on the judgment.

If the Satisfaction of Judgment is not filed, the judgment debtor’s credit can be damaged. The judgment creditor may be held responsible for all resulting damages plus a penalty.

If an Abstract of Judgment was recorded, a certified copy of the filed Satisfaction of Judgment, or a new original Satisfaction of Judgment signed before a Notary Public, should be recorded in the county where the Abstract Judgment was recorded (Cal. Code Civ. Proc. § 116.850).

VIII. ADDITIONAL INFORMATION

Q 47. Are small claims court forms available online?

A Yes. Small claims court forms can be obtained at http://www.courts.ca.gov/1017.htm.

Q 48.  Where can I get more information on Small Claims Court?

A Various Small Claims publications are available online from the following sites:

CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS
The Small Claims Court:  A Guide to Its Practical Use

CALIFORNIA JUDICIAL COUNCIL
Guide to California Courts: Small Claims

This legal article is just one of the many legal publications and services offered by C.A.R. to its members. For a complete listing of C.A.R.’s legal products and services, please ask Raquel Comstock. Readers who require specific advice should consult an attorney.

Raquel Comstock
Realtor, lic# 01091437
Realty Executives
3610 Central Ave., Ste. 400
Riverside,CA 92506
Phone:(951) 335-0088
Cell: (951) 289-5869

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