How Small Claims Works (Page 1)
Before The Day of Small Claims Court
It may seem curious that we have information on how to do your whole small claims document process by yourself, but this is the only really honest way for me to know that I have fully educated my clients on what it is that we help them with. The small claims process can be done completely on one’s own with a few trips to the courthouse for some help. Our document completion is $50 + court filing fees + chosen method of service. $50 is not much for all the time that it helps you save.
The purpose of this article is to familiarize you with the Small Claims Court process in the State of California. In addition to the Small Claims Court process, this article will contain information on mediation which can save you time, money, preserve relationships and keep you from having to go through trial. Many different types of disputes can be resolved in Small Claims Court. Whatever the dispute, the damages sought or the value of the equitable remedy sought can amount to no more than $10,000 for an individual and $5,000 for a business.
For example, you can have a small claims case regarding a disagreement over payment for services rendered, property damage or rental deposits. Small claims court is not as formal as limited civil and unlimited civil, it is less time consuming and less expensive than regular civil court as well. Parties to a small claims action cannot be represented by attorneys unless they are at the appeals stage of a case. Attorney representation in court is allowed at the appellate level because small claims appeals are held in civil court and not in small claims court. Arguments on appeals tend to be more sophisticated and therefore attorneys are allowed. It is allowable at all stages of a small claims case, however, to consult with an attorney for advice and for document preparation. Legal document assistants are also available to help with document preparation, but not with advice.
In the initial small claims hearing the participants, both the plaintiff and the defendant speak with the judge directly. A common mistake that people make is to treat the conversation with the judge like a trip to the principal’s office. The best thing to do is to be very respectful, and very matter of fact. The Judge will ask questions to clarify how the complaint is written and to clarify the meaning of any evidence presented. Do not interrupt the Judge and make sure to call the Judge “Your Honor”. Do not talk to or argue directly with the other participant. Simply explain your case and have evidence and witnesses as proof to support your argument. The Judge will rule on the facts as presented. This is called applying the law to the fact pattern. The nice thing about small claims court is that the standard of evidence admitted is less formal. You still must maintain complete professionalism. Again, this is not a trip to the principal’s, don’t start with a long tale of all the past conflict with a person. Stick to the facts and to answering the questions the Judge asks. You will be glad you did.
This article is written to give you a summary of the small claims filing process and things to think about when you go to court. In every county there is a Small Claims Legal Advisor, which is a service put together by the local court system to assist the self-represented small claims litigant. Once you read this article you will have a basic handle on what is involved in the small claims process and can make the choice as to whether you want to do the form selection, completion, filing and service of process on your own. Many people are glad to know the process and though it is relatively simple still opt to use our service because they, like most people, are busy and only really have a half an hour or so after work to really spend online completing their small claims interview. With our synchronized form, you can save and return if you find you are missing a piece of information. 2 short internet session and your document completion, filing and service of process are on their way.
Another purpose of this article is to give our clients information on mediation. Mediation is often times a very good choice for people who really care to preserve the relationship they have always had with the person, people or business with whom they are temporarily at odds with about a relatively minor amount of money. In mediation, rather than have a judge decide your case, both parties sit down with a mediator who can help you come to a compromise. Mediation is not binding, mediation is a last attempt to stay out of court and to come up with a compromise with which both people can agree. If you do come to an agreement, you can file a request for dismissal (CIV-110). This can be done with or without prejudice. Without prejudice leaves it open for you to initiate another claim should the person with whom you came to an agreement ends up breaching the new settlement agreement contract which you formed as the basis for the dismissal.
Now let’s look at what a small claims case timeline is like. Now that you have decided that you want to file a case, you need to begin filling out the required forms. Every small claims case starts with the filing of an SC-100 form (Plaintiff’s Claim and ORDER to go to Small Claims Court). This sets the case in motion. The next way a small claims case starts is after the initial filing of the Plaintiff’s Claim, there can be filed an SC-120 form (Defendant’s Claim and ORDER to go to Small Claims Court). The Defendant’s Claim may or may not have to do with the exact situation that gave rise to the Plaintiff’s Claim. If it does have to do with the exact situation that gave rise to the Plaintiff’s Claim, then it can and probably should be held at the same time. If it is about something different, it doesn’t really have to be held at the same time. Many people get into situations where both parties have grievances because of a pattern of situations, and each side only sees the wrong the other side has done. It is not always possible for both parties to just let things go and see the wrongs as having canceled out, so the defendant’s claim about a different situation is facilitated using the SC-120. The SC-100 and SC-120 are exactly parallel to the complaint and cross-complaint or countersuit in limited civil or unlimited civil actions.
A brief note here is in order. There are 4 types of equitable remedy available to the small claims litigant in the state of California. They are: Rescission, Reformation, Restitution and Specific Performance. If seeking one of these 4 types of equitable remedy, make sure that the value of the remedy does not exceed $10,000 for an individual and $5000 if you are suing as a business.
Now once you have decided you want to file a Plaintiff’s Claim (SC-100) or a Defendant’s Claim (SC-120) you have to fill out the forms and file them with the Court Clerk in the County where you are suing and also pay the filing fee. The Filing fee in Los Angeles County is $30 for a claim up to $1,500, $50 for a claim above $1,500 and up to $5,000 and $75 for a claim above $5,000 and up to $10,000. If you are filing your 13th small claim during the calendar year or beyond your 13th, each small claim beyond the initial 12 small claims incurs a court filing fee of $100. Also, the court will only allow you to file 2 small claims for above $2,500 in one calendar year. If you are attempting to file a claim for $5000 and you have already filed 2 other claims for $5000 during this calendar year, your only option for small claims is to cut your claim to under $2500. Other than that, your recourse will be to file a limited civil claim in the civil court rather than use the small claims court. You can also apply to the court for a fee waiver. The small claims court fee waiver is the same as any other fee waiver FW-001. The California Courts Self-Help has a great page on fee waivers. http://www.courts.ca.gov/selfhelp-feewaiver.htm.
After filing and before your court hearing you have to perform what is called “service”. This means you have to properly let the person you are suing know that you are suing them, why, and where as well as when the court hearing date and time are. There are 3 main routes to proper “service of process” in a small claims case. They are: Hiring a Process Server, having the court provide service of process via certified mail and having an adult 18 years or older who is not a party to the case serve process. No matter which way you choose, you must provide proof of service to the court prior to 10 days before trial. This is done using an SC-104 form. If you do not properly serve the other side as required by law, the judge will not hear your case and your hearing will be postponed or canceled. Service can also be: personal service, by substitution, by mail, or by publication. By publication is a last resort if no other method can be used and should only be used as such.
A Process Server costs around $65 and is the most effective way to ensure proper service. You must make sure you give your process server the correct address of the individual or business being served. If you know the person you need to serve, I mean really know them (like a neighbor or somebody like that), you can have another adult 18 years or older simply go to their house or apartment when you know they will be there with a copy of everything you have filed, hand it to them, say, “you’ve been served” and walk away. That person needs to then fill out an SC-104 and you must return it to the court clerk. Be sure to allow enough time for service of process. If possible, give yourself at least six weeks for the process of service (i.e., get a court date at least six weeks out). Someone must give each defendant a true copy of the Plaintiff ’s Claim Form (Form SC-100) at least 15 days before the hearing date if the defendant lives in the county in which the claim is filed, or at least 20 days before the hearing date if the defendant lives outside the county in which the claim is filed. If the service was substituted service, add 10 days to each of the two time requirements listed above.
Because service is complicated and must be done properly, it is best to hire a Process Server. One pitfall of service by Court Clerk via certified mail is that if nobody signs, service must be done again and you will be out your $15. Some people just don’t sign for things that come from court. They are like ostriches with their heads in the sand, hoping that things will go away. In this case, if you do not find another proper method of serving process, the small claims case will temporarily go away. This also happens if you provide the wrong address for the defendant. With a Process Server, it is also possible to not have the correct address at first, and this will cause an issue, but you will become aware of the issue in a much timelier manner. The Process Server will inform you that you gave them the wrong address. Usually they will suggest that you pay a small fee for skip tracing (which means they will find the correct address for you) and then you will have to pay another service of process fee. I know you don’t want to spend more money, but an extra $100 of skip tracing and a second address attempt is better than no court hearing at all.