How to File a Case in Small Claims Court

sMALL cLAIMS cOURT

We get many calls from potential clients, but after talking to them for a while, it become apparent that their case is best pursued in Small Claim Court by the client. Individuals can sue for up to $10,000 in Small Claims Court, so it’s not really small at all.

We cannot offer legal advice on how to proceed in Small Claims Court (indeed, attorneys are not even allowed to represent clients there), but here is some information from one court’s website. Also, every County in California provides a “Small Claims Advisor” to help you with the process. After reading the information below, do an Internet search for “small claims court advisor [county where you reside]” and that should take you to the place you need to be. Note that advisor is spelled with and “O”.

The information below provides an outstanding summary of the mechanics of filing and serving a Small Claims Court action, but if you are going to invest the time and expense to go to court, then you need to know the strategy of winning in court. There are specific rules for introducing evidence and proving your case. If you’re not willing to take a little time to learn the process, then you probably won’t have much chance for success. I receive calls every week from people who lost their Small Claims case, and they are angry because “the judge wouldn’t listen”. When I ask them to summarize the evidence they were trying to present, it becomes clear that the “judge wouldn’t listen” because the plaintiff was trying to introduce inadmissible evidence, or trying to sue under a nonexistent legal theory.

The single most important concept to keep in mind when presenting (or defending) a small claims case is “less is more”. Present the evidence as succinctly as possible, with no unnecessary evidence or facts. For example, if you are suing because you loaned someone $5,000 and they never repaid it, the only essential evidence is that you loaned the money, defendant agreed to repay it, and it was never paid back. The fact that you could not pay your bills because the money was not paid back has no relevance to the case.

For detailed information on how to win your case (or defend against one brought against you), the following are three excellent guides to Small Claims Court that can be found on Amazon. The first is specific to California, and the second two can be applied in any other state. Click on the image to buy any of these guides at a greatly reduced price.

The above guides will make it crazy easy to pursue or defend a small claims case, but if you want some details right now on how to proceed, here they are:

 

FIND OUT HOW TO NAME THE DEFENDANT

When you are preparing to file a small claims case, you need to find out exactly who the defendant (the person or business you are suing) is so you can name him or her correctly on your claim. This may seem like a simple issue, but it can be very complicated.

For example:

  • If you get into a car accident that is caused by another driver, there may be more than 1 person to sue. The other driver may be responsible for driving the car negligently, but the car may be owned by someone else. And the car insurance is likely to be in the owner’s name. If you only sue the driver and not the owner, you may win, but if the driver is not covered by the insurance, it may be very hard for you to collect your judgment.  If you sue both the driver and the owner and you win, the owner’s car insurance (if he or she has it) will probably pay for your damages.
  • Work is performed on your house and the plumbing is defective. If you sue the plumber but not the general contractor, the plumber may testify that he was told by the general contractor how to install the plumbing, and it is the general contractor’s fault. If the general contractor is not a party and the court agrees that it is the general contractor’s fault, you will lose your case. If both the general contractor and the plumber are sued, they can blame each other, but it will not make any difference if the court decides that only 1 of them or both are at fault — you can get a judgment in your favor.
  • If you get hurt by a product, you need to find out if the store where you bought the product belongs to a chain, and you need to find out who made the product. You may need to sue the store where you bought the product, the parent company that owns the store where you bought the product, the store chain if the store where you shopped is part of a franchise, and the manufacturer of the product. You need to figure out who owns each of the businesses. If you sue only an individual or 1 party and leave out the others, those who are sued can blame your injury on someone else and you may lose your case if the court finds a nonparty to be responsible.

This section helps you figure out who your defendant is and how to name him or her (or them, if you have more than one defendant) in your claim.  And keep in mind that if you are not sure which of several possible people (or businesses) is responsible for your claim, name each person or business you believe is liable. The court will decide if the people you named in your claim are legally responsible

FIGURING OUT THE DEFENDANT’S NAME

When you fill out and file your claim, you must have the EXACT name of the person or company you are suing (the defendant). If you do not use the correct name, you may not be able to collect any money if you win. You need to put the defendant’s name on the papers that you file with the court.

In general, if you are:

  • Suing a person: Write the person’s first name and last name (and middle initial, if known). If the person has used different names, you can list each of them as an “aka” (also known as). For example, if the person you are suing signed a contract as John Doe, but you know he goes by the name of John Roe at work, you can sue him as “John Doe aka John Roe.”
  • Suing husband and wife: Write both their full names.
    • For example: James Jones and Sally Jones.
  • Suing domestic partners: Write both their full names.
    • For example: Jane Jones and Sally Jones.
  • Suing a business owned by 1 person: Write the owner’s name and the business’s name. Name the owner as an individual to have a better chance of collecting if you win.
    • For example, write: Sally Smith, individually and dba Continental Candies, and Continental Candies, a proprietorship. (In this example and others, “dba” stands for “doing business as.”)
    • You can check the county records for the fictitious name filing for the business to see exactly how the owner’s name appears. This way you can make sure you have the correct name of the individual owner on the complaint when you sue.
  • Suing a partnership: Name the partnership and the partnersindividually too.
    • For example: Jim Smith and John Jones, individually and dba Smith & Jones, and Smith & Jones, a partnership.
  • Suing a corporation: Write the exact legal name of the corporation.
    • For example: Sally’s Dresses Inc., a corporation.
  • Suing a business owned by a corporation: Write the name of the corporation and the business.
    • For example: Lotus Corporation, individually and dba The Flower Company, and The Flower Company.
    • Some corporations are not really separate entities from the individuals who created them because the corporate assets and the assets of the officers and directors are all mixed together. If you get a judgment against a corporation that has no money because the money is all in the bank account of the corporation’s president, you may find yourself unable to collect on the judgment. If you think that the corporation you are suing is really a sham to avoid personal liability by its main officers, you can name the individuals along with the corporation. This is called “piercing the corporate veil.” You will need to show proof to the court that the corporation is not really separate from the individuals who run it.
    • When suing a corporation, limited partnership, or limited liability company (LLC), you need to check the California Secretary of State’s website to see if the corporation, limited partnership, or LLC is licensed to do business in California. If it is not, it cannot appear in court to defend itself, and you can object to the court if it tries to. You can then request a judgment against the other side.
    • If the corporation, limited partnership, or LLC is licensed to do business in California, you need to check who is listed as the agent for service of process. This is the person or company that the corporation has chosen to receive legal papers.
  • Suing because of a car accident: Write the name of the driver and the owners of the car. If there were multiple cars involved, it is important to name each driver and owner.
    • For example: If Sam Jones was driving the car when you were hit, but Betty Smith is the owner, your lawsuit would say: Sam Jones, driver, and Betty Smith, owner.
    • If Sam Jones was pushed into your car when he was hit by Bob Hunt, and Bob Hunt was driving a car owned by David Brown, you would name all the drivers and owners: Sam Jones, driver, and Betty Smith, owner, and Bob Hunt aka Robert Hunt, driver, and David Brown, owner.
    • If the owner and driver are the same person, you can just write that person’s name: Sam Jones, owner and driver.
    • If you do not know the name of the owner of the car but you have the car’s license plate number, you can fill out a Request for Record Information to the DMV to get the name of the registered owner on DMVForm INF 70.

FINDING THE DEFENDANT

Once you know the name of the person or business you want to sue, you need to find their address to fill out the paperwork and to give them a copy of your claim once you file it.

Find a Person

If the person you are suing has moved:

  • Send a letter to his or her last address. Under your return address, write “Return Service Requested. Do Not Forward.” If the person filed an address change with the post office, you will get the letter back with a new address.
  • Also, the Postal Service will give you the new address of someone who has filed a change of address order (PS Form 3575). You can obtain this information if you need the new address in order to have service of process delivered on that person, and you submit a completed and signed “Request for Change of Address or Boxholder Information Needed for Service of Legal Process.” You can get the request form from your local post office or theU.S. Postal Service’s website.

If the person you are suing owns property:

  • Your local tax assessor’s office can search the tax rolls for you. The tax rolls list the names and addresses of property owners in the county by both owner name and address of the property. You can search the records online.You can also find the tax assessor’s address and phone number in the government pages of your phone book. It is usually in the county section under ASSESSOR.
  • You can also get this information from the county registrar/recorder’s office. The property owners are listed by name and the listing includes the location of the property owned. You can also find the address and phone number of your county registrar/recorder’s office in the government pages of your phone book. It is usually in the county section under RECORDER.

If you only know the person’s phone number:

  • You can get the address from a reverse directory, which allows you to search for someone’s address if you have their phone number. You can look at this directory at the main branch of your public library. The address will not be in the reverse directory if the phone number is unlisted.
  • You can also use a reverse phone directory online.
  • Try using a search engine like Google, Yahoo, or Bing to search the phone number. You may get the address you are looking for.

Find a Business

If you only know the phone number:

  • You can get the address from a reverse directory. You can look at this directory at the main branch of your public library. The address will not be in the reverse directory if the phone number is unlisted.
  • You can also use a reverse phone directory online.
  • Try using a search engine like Google, Yahoo or Bing to search the phone number. You may get the address you are looking for

If you are suing a corporation or limited liability company (LLC):

  • You can find out the name of the corporation or LLC and its agent for service at the website of the California Secretary of State. The website can also tell you how to write to the Secretary of State to get more information about the corporation, such as a list of the corporation’s officers.

If you are suing a partnership or a business with 1 owner:

  • The county clerk or recorder’s office maintains a listing of fictitious business statements. A fictitious business statement lists the names and addresses of the owners of a business or the partners in the business operating under a different business name (the fictitious business name).
  • The city clerk’s office, tax and permit division maintains a list of the names and addresses of most people licensed to do business in a city. You can find the address and telephone number of the city clerk’s office in the government pages of your phone book.

If you are suing a limited partnership:

  • You can find out the name of the limited partnership’s agent for service at the website of the California Secretary of State. The website can also tell you how to write to the Secretary of State to get more information about the limited partnership.

ASK FOR PAYMENT

Small claims cases require that you ask the other side for payment before you go to court (unless there is a good reason why you cannot). You can ask in person, by phone, or in writing. You will have to tell the court you did this and how on your court form.

If you decide to ask for payment in writing, you can use a demand letter.  A demand letter is a short, clear letter demanding payment.  Bring a copy of it to your court hearing to show the judge. You can also attach it to your court papers.

Often, a demand letter will be all you need to resolve your dispute.  Even if the person or business that owes you money knows about the problem, a firm and strong request in a letter that lays out the reasons why they owe you money and says that if your issue is not satisfied you plan to go to small claims court can have a big effect.  They realize you are serious about the case and intend to spend time and energy pursuing it.  Sometimes when you have a problem with a business, a demand letter can bring the problem to the attention of the owner who may not have known about your dispute because the manager never told him or her.

HELP WRITING A DEMAND LETTER

There are different types of demand letters.

If you want help writing one, click on the link that deals with the type of dispute you have to get to a computer program that can help you or a sample letter you can use as a guide:

Demand Letter to the Person or Business Asking for Money

Demand letter to Your Landlord Asking for the Return of Your Security Deposit

  • A landlord has 3 weeks after you move out to return your security deposit or send an itemized invoice for any amount withheld for damages.
  • Use this program ONLY if you do not receive your security deposit (or an itemized invoice for any amount withheld for damages) within 3 weeks after you move out.
  • If you received part of your security deposit and feel that your landlord should have returned more money, DO NOT use this program. INSTEAD, use the Write a Demand Letter program to write your letter.

Sample Bad Check Demand Letter

Sample Stop-payment Demand Letter

FIND THE RIGHT COURT TO FILE YOUR CLAIM

Every county in California has a small claims court. You have to figure out which county’s small claims court is the right court for your claim. You will file your claim in this court. If you file your claim in the wrong court, the court may dismiss your case and you will have to refile in the correct court. If the time to file your case (the statute of limitations) has run out, you may end up losing your case. So it is very important you file in the right court and not lose time.

If you know the right court to use, you are ready to Fill Out Your Court Forms. If you need to figure out which court to file your claim in, talk to the small claims legal advisor.  You will save yourself and the other side a lot of trouble and even money if you carefully choose the court in which you file your claim. The small claims legal advisor can help you do this right.

In general, you can file your claim in the court where the defendant lives or does business.  But there are some exceptions to this rule.

Keep in mind that the law is complicated and even if you think your case fits into one of these exceptions, it may not. Talk to the small claims legal advisor to make sure you know which court to file your case in.

What if I am suing because of a car accident?

You can file your claim in the county where the accident happened, or in the county where the defendant lives.

What if I am suing because of a contract?

You can file in the county where you signed the contract, where the contract was broken, or where the contract was to be carried out. You can also file where the defendant lived or worked when you signed the contract.

What if I am suing because I am a seller and someone owes me money for a consumer purchase?

You can sue in the county:

  • Where the buyer lives;
  • Where the buyer lived when he or she made the purchase;
  • Where the buyer made the purchase; or
  • Where the item purchased is located.


    What if I am suing because I bought something or I paid for a service?

You can file your claim in the county:

  • Where you (the buyer) lives;
  • Where you (the buyer) lived when the item or service was purchased; or
  • Where you (the buyer) bought or paid for the item or service.

You can file in any of these locations if you bought something from a seller as a result of an unsolicited telephone call or e-mail from the seller to you, including situations where you, as the buyer, responded to the seller’s call by phone or e-mail.

What if I am suing my credit card company?

You can file your claim in the county:

  • Where you live;
  • Where you lived when the contract/application for the credit card was signed; or
  • Where you signed the contract/application with the credit card company.

You can file in any of these locations if you entered into a contract with a credit company as a result of an unsolicited telephone call from the company to you, including situations where you, as the buyer, responded to the company’s call by phone or e-mail.

What if none of these questions fits my case or I am not sure what to do?

Get help from the California Department of Consumer Affairs’ website.   You can also contact your court’s small claims legal advisor for help.

FILL OUT YOUR COURT FORMS

This section will help you prepare your claim. To prepare a claim, you need to fill out court forms that include a Plaintiff’s Claim (Form SC-100). These forms tell the court and the person or business you want to sue about your claim.

To fill out your papers:

Read Information for the Plaintiff (Small Claims) (Form SC-100-INFO)

  1. Get help from your court’s small claims legal advisor
    Your court’s small claims legal advisor may be able to help you figure out whom to sue, how much to sue for, and where to sue, as well as help you fill out your court forms.
  2. Fill out your court forms
    Fill out:

    • Plaintiff’s Claim and ORDER to Go to Small Claims Court (Form SC-100).
    • If there are more than 2 plaintiffs or 2 defendants, also fill out Other Plaintiffs or Defendants (Attachment to Plaintiff’s Claim and ORDER to Go to Small Claims Court) (Form SC-100A).
    • If you need more space to describe your claim and what happened, or you need witness statements, you can use a Declaration (Form MC-030).
    • If you are a business, you may also have to fill out Fictitious Business Name (Small Claims)(Form SC-103) declaration.
  3. Fill out your court’s local forms (if any)
    Ask your local court clerk if there are local forms you have to fill out. Some courts also have forms on the court’s website.

    • Some courts ask you to fill out a local form called “Plaintiff’s Statement to the Clerk.” To get this form, you can:
      • Go to the clerk’s office of the court where you will file your claim or look on your superior court’s website; OR
      • Mail the court a letter asking for the form and enclose a self-addressed, stamped envelope. Look for your court’s address on your superior court’s website.
  4. Have your forms reviewed
    You can ask a small claims legal advisor to review your paperwork after you filled it out. The advisor can help you make sure you filled it out properly before you move ahead with your case. You can also go to a public law library and ask a librarian for self-help books to help you fill out your forms.
  5. File your claim

FILE YOUR CLAIM

After you finish your court forms, you must give your forms to the clerk of the court to file your small claims case.

Follow these steps to file your claim:

  1. Figure out how much you have to pay to file

    You will have to pay a fee to file papers with the court. The amount of your fee depends on how much you are suing for.

  2. Take your forms to your small claims clerk

    Take your:

    • Plaintiff’s Claim and ORDER to Go to Small Claims Court (Small Claims) (Form SC-100);
    • Other forms you filled out (if any);  and
    • Payment or fee waiver forms to the court clerk.
    • Some courts also require you to bring 2 or more copies of your Form SC-100 and other forms. (You must copy all 5 pages of Form SC-100.)
  3. File your forms with the clerk and get your court date

    When you take your forms to the court, the clerk will look at your forms and may ask you a few questions. If you want your hearing to be at night, ask the clerk for possible evenings and times. After looking at your forms, the clerk will usually stamp the forms “Filed” and fill in the date, time, and location of your court hearing. The clerk will keep the originals of the forms and give you a copy for yourself and other copies for each defendant you are suing.

  4. Mark your calendar with the date of your court hearing

    It is very important you go to your court hearing. If you do not go, the judge will probably dismiss your case, or make a decision without hearing your side. If the defendant has sued you back (in a defendant’s claim) and you do not go to your hearing, the judge will not take into account your position and you may lose.
  5. Keep your court papers safe in a separate folder

    Be sure you keep a clean copy of all of your court papers in this folder.
  6. Serve your claim
    Once you file your claim, the other side needs to find out about the case and the court hearing. That happens when you “serve” your forms.

If you realize, after you file your claim, that you made a mistake and need to change your claim, you may be able to correct your Form SC-100. You may also be able to change your court date if you need to postpone it. Find out how to change your claim or your court date.

 

SERVE YOUR CLAIM

“Service” is when someone-NOT you or anyone else listed in this case-gives a copy of your court papers to the person, business, or public entity, you are suing. Service lets the other side know:

  • What you are asking for;
  • When and where the trial will be; and
  • What they can do.

“Service” is VERY important and can be confusing. Read the Service of Process section to learn more about serving court papers. You can also ask your small claims legal advisor for help with service.

There are also 2 court forms that can help you understand service in your small claims case and make sure you follow the right steps.  Read:

  • What is Proof of Service? (Small Claims) (Form SC-104B); and
  • How to Serve a Business or Public Entity (Small Claims) (Form SC-104C).

 

GOING TO COURT

Be Prepared for Your Trial

Plan what you are going to say

  1. You willhave to explain to the judge why you are filing a claim and what you want him or her to order.  Decide what your main points are and take proof. Try to think of what the other person might say and how you will answer. You can also talk to a small claims advisor or a lawyer before court.
  2. Prepare the proof to take to court

    Take any papers that support your story and take 2 more copies of everything. This is called “evidence.” Evidence can be:

    • Contracts
    • Estimates (take at least 2)
    • Bills
    • Photographs
    • Diagrams that show how an accident happened
    • Police reports

    If you need papers that someone else has, fill out a Small Claims Subpoena for Personal Appearance and Production of Documents at Trial or Hearing and Declaration (Form SC-107) and request these documents. Learn more about subpoenas.

  3. Take copies of all your court papers and your Proof of Service
  4. Take people to support your story (witnesses)

    Take witnesses who saw what happened or who are experts on that subject. For example, a neighbor who saw the accident or a mechanic who looked at your car.

    • Do not bring people unless you know they will support you. Witnesses who are not friends or relatives may be more effective in proving your case. But sometimes the only witnesses are your friends and relatives. They should testify and present themselves in a professional manner and be objective and not emotional.
    • If you need a witness to go to your hearing that cannot or will not go voluntarily, fill out a Small Claims Subpoena(Form SC-107) to order them to go. Learn more about subpoenas.
  5. If you do not speak English well, take an interpreter to help you

    Ask your court clerk at least 1 week before your hearing to see if the court can provide an interpreter for you. In some courts, they can provide interpreters for free if you qualify for a fee waiver. If not, you have to take your own interpreter. Do not ask a child or a witness to interpret for you.  Get tips to help you work with a court interpreter.

    • You have the right to get your hearing delayed so you can get an interpreter.
  6. If you are deaf, hard-of-hearing, or have another disability request an accommodationAsk your court’s ADA coordinator or court clerk at least 1 week before your hearing. Get more information about the rights of persons with disabilities and a form to request an accommodation.

You are now ready to go to your trial!

 

YOUR TRIAL

 

For the trial

  • Get there 30 minutes early.
  • When the judge calls your name, go to the front of the room. The judge may ask you to try to settle your case before the hearing takes place.
  • The plaintiff will present his or her case first. Then the defendant will have his or her turn.
  • Small claims cases vary but usually only last 10 to 15 minutes. So be prepared to tell your story quickly.

 

Tell your story

Be quick and to the point and stay calm. It is your job to PROVE your case. Do not wait for the judge to ask you questions. But if the judge asks you questions, answer each question directly and do not interrupt the judge or the other side.

Here are some tips:

  • The first thing you need to say is why you are there.
    • Tell the judge how you were affected by what the other person did, and
    • Why it is their fault.
  • Also explain why it is not your fault.
  • Say what happened, in the order it happened.
  • Group facts together. For example: “From April to August, I took the car in 10 times and he didn’t fix the brakes.”

After the trial

If you are the plaintiff, get a checklist for what to do after your trial.

If you are the defendant, get a checklist for what to do after your trial.

 

 

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