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If You're the Defendant...Responding to the Lawsuit

What Should You Do After You Receive an Order to Appear?

You have been named as a defendant in a small claims action and have received an order to appear at a small claims hearing. This means that you're the defendant and are being sued by someone else - the plaintiff. You probably know why you have been sued. If you don't know why you're being sued, contact the plaintiff immediately for an explanation. The plaintiff's name and address appear on the Plaintiff's Claim and Order to Defendant form that you have received.

Never ignore an order to appear in court, even if you think the case is wrong, unfair, or has no basis. If you don't appear in court at the proper time and date, the court may still hear and decide the case without you, and you may lose the suit by default. A default judgment may then be entered against you, in your absence, without the judge ever hearing your version or side of the dispute. Your money or property and maybe a portion of your earnings can then be taken legally by the judgment creditor to pay the judgment against you, and your credit record may show that there is a judgment against you. If you're a member of a licensed profession or occupation, the judgment may be listed in the records of the agency that licenses you.

What If You Owe the Claim?

If the plaintiff's claim is valid, you can save yourself money, time, and inconvenience by resolving the dispute before the hearing date. If you go to court and the plaintiff wins, you'll probably also have to pay the plaintiff's court costs, and possibly interest, in addition to the amount that you already owe. The judgment may appear on your credit record, even after you've paid it.

You can try to reach a settlement with the plaintiff, or you can choose to let the court decide the case. If you're unable to resolve the dispute directly with the other party, you must appear at the hearing, unless you request a new court date, a transfer to another court, or some other official action by the court.

It's always a good idea to talk or write to the plaintiff before the hearing. The dispute may be based on a misunderstanding that you can clear up. If you believe that you owe the plaintiff something but don't have the money to pay it now, you can offer to pay the amount that you believe you owe by weekly or monthly payments. If that is the situation, you should take the following steps:

(1) ask the plaintiff to dismiss the case without prejudice (which means that the plaintiff can refile the claim if you don't carry out your promises), and (2) enter into a precise agreement for payment that includes the agreement you've made with the plaintiff on the following subjects:
(2) enter into a precise agreement for payment that includes the agreement you've made with the plaintiff on the following subjects:

If you can persuade the plaintiff to dismiss the case without prejudice, and you pay the amount you agree to pay, the claim will not appear on your credit report as a judgment. Keep in mind that by entering into an installment payment agreement, you probably are waiving (giving up) your right to have the court determine whether you owed the debt. If you don't pay the debt, the plaintiff can simply bring this agreement to court and ask the court to issue a judgment which states that you owe the amount set forth in that agreement.

Even though you may have a justifiable defense to all or part of the plaintiff's claim (and believe you owe nothing, or less than the amount of the plaintiff's demand) and have informed the plaintiff why this is so, the plaintiff may refuse to reduce or withdraw the claim. In that situation, you should call a neighborhood mediation center to try to persuade the plaintiff to select a neutral third person to help you and the plaintiff resolve the dispute informally. Most neighborhood dispute resolution centers offer mediation services. In addition, some courts offer mediation services. In Sacramento County, you can obtain more information about the mediation service offered to small claims litigants by calling (916) 875-7843.

If there isn't enough time to obtain help from a mediator before the hearing, you can appear at the hearing and ask the small claims judge to postpone the hearing to a later date in order to give you and the plaintiff sufficient time to attempt to resolve the dispute through mediation, arbitration, or other informal means. The judge, at his or her discretion, can postpone the hearing if either party requests a postponement for that reason.

What If You Can't Resolve the Dispute Informally?

If you can't resolve the dispute, make sure you attend the hearing and explain your side of the story to the judge. Remember that unless you're there, the judge can't possibly know whether you have a valid defense to the plaintiff's claim. For example, if you think the case is too old to be enforceable or that the plaintiff, not you, caused the problem, you must tell this to the judge. The judge will want to hear both sides before deciding and may agree with you.

Also, look closely at the amount claimed by the plaintiff. If it's a total of several items, ask yourself, Do I actually owe each item? Are the plaintiff's calculations correct? Are the claims for extras such as interest, collection fees, or late charges all valid? If you have questions, check with a small claims advisor before the hearing, or state your concerns to the judge at the hearing.

What If You Can't Attend the Hearing?

If you have a good reason to postpone the hearing to a different date, you can write a letter to the court and ask for a different hearing date. (Attorneys refer to this as a "continuance.") You must send a copy of your letter to the other party.

As a general rule, you must pay a fee of $10 with your written request for postponement. However, no fee is required if the defendant requests a postponement because he or she wasn't served in a timely manner before the hearing or requests a continuance before the plaintiff has served the claim on the defendant.

You must have a good reason to receive a postponement of a court hearing date. The court usually will postpone the hearing in the following situations: (1) the plaintiff hasn't been able to serve the defendant, (2) the defendant wasn't served a sufficient number of days in advance of the hearing date, (3) the defendant filed a cross claim and the plaintiff wasn't served with the cross claim at least five days before the hearing date (unless the defendant was served less than ten days before the hearing date, in which case the defendant may serve the plaintiff until the day before the hearing), or (4) the court determines that the parties desire to engage in mediation or other forms of alternative dispute resolution. If you're unsure whether your particular reason may be a good enough reason for the court to postpone the hearing date, check with a small claims advisor in your county.

What If Service of Process Is Improper?

You're entitled to receive at least 10 days' advance notice of the hearing (15 days' notice if you reside outside the county in which the court is located). If you didn't receive proper advance notice, you're not legally obligated to appear at the scheduled hearing. However, if you received some advance notice but don't plan to appear, it's a good idea to call or write the court and explain why. If the required notice wasn't given to you on time, the court will reschedule the hearing.

Even if you weren't served properly, however, you still may want to attend. Ordinarily, you shouldn't refuse to attend simply because you received a late notice, but only if the late notice has made it much more difficult to prepare for the hearing or attend it. For example, the claim may have been dropped at your doorstep, instead of having been personally served on you, or it may have been served on your neighbor, who promptly gave it to you. In both of these cases, service was technically improper, but you knew about the claim and had sufficient time to prepare.

By attending the hearing, even if service of process was late or otherwise improper, you can present your defense and perhaps resolve the dispute without further delay. If you don't attend, the plaintiff may incur additional costs to serve you, and if you later lose, you may have to pay these added costs. If you don't appear, a default judgment may be rendered against you. In that event, you would have to prepare and file a request to overturn this judgment.

If you were not served within the legal time limits (10 days before the hearing if you live within the county and 15 days if you live outside) and you need more time to prepare, you probably should call and write the clerk of the small claims court and ask that the case be postponed.

What If the Location or Venue of the Court Is Wrong?

If you feel that the plaintiff has filed in the wrong court, or venue (see "Where Do You File Your Case" by clicking here), you have the following options:

Appear at the hearing and not challenge venue.

If you feel that it would not be inconvenient to have the hearing in the county selected by the plaintiff (because, for example, you live in a neighboring county or district only five miles from the courthouse), you could appear and waive (give up) your right to challenge venue.

Challenge venue at the hearing.

You could challenge the venue at the hearing. If the judge decides that plaintiff's choice of venue was proper, then you can proceed with the hearing. If the judge decides that the plaintiff's choice of venue was improper, the case must be dismissed without prejudice.

Challenge venue by writing to the court.

This is probably the easiest option, particularly if you live a long way from the court or it's not convenient to attend. You merely write a letter to the court explaining why the plaintiff's choice of venue wasn't correct. If the judge disagrees with you and you're not present at the hearing, the judge must postpone the hearing for 15 days. The judge can't render a decision if you're not present, if you have challenged venue. If the judge believes that venue is improper, then the case must be dismissed without prejudice.

Even if you don't challenge venue, it's a duty of the judge to find that the location of the hearing is proper - to determine after checking the facts that there is some legal basis for the plaintiff's choice of that court. Also, even if the location of the court selected by the plaintiff is correct, the judge may, on rare occasions, transfer the case to another court that is more convenient for the parties and their witnesses. For example, if you have many witnesses who must travel to the court from a distant location, the judge may order that the case be transferred to a court near that location. In evaluating transfer requests, the courts give greater weight to the convenience of those disputants who are individuals than those that are legal entities such as corporations, partnerships, and public entities.

What If the Plaintiff Owes You Money?

If you believe the plaintiff has caused you injury or owes you money for any reason, you can file a claim against the plaintiff in the same small claims court action. If your case is related to the subject of the plaintiff's case, it may be helpful and convenient to resolve it at the same hearing by filing a Defendant's Claim and Order to Plaintiff, which can also be filed electronically. On a Defendant's Claim and Order to Plaintiff, parties continue to be referred to as they were on the original Plaintiff's Claim and Order to Defendant.  This is to say, the person or entity suing on a Defendant's Claim is still called a defendant and the person or entity being sued is still called a plaintiff. It's not necessary that your claim against the plaintiff be related to the plaintiff's claim against you. The small claims court can resolve both disputes.

If you file a claim against the plaintiff, the same basic rules and procedures generally apply. Legal principles, such as statutes of limitations, also apply. Ordinarily, the plaintiff must receive the Defendant's Claim and Order to Plaintiff at least five days before the scheduled hearing. However, if you received the Plaintiff's Claim and Order to Defendant less than 10 days before the hearing, then you can serve the Defendant's Claim and Order to Plaintiff as late as one day before the hearing. Always have the papers served as early as possible.

Think carefully if your case against the plaintiff is for more than $5,000 (or $2,500 if you have already filed more than two small claims court actions for more than $2,500 anywhere in the state during the calendar year). In these situations, you may be able to transfer your case or both cases to the superior or municipal court. If your claim is for a large amount, you should consult with an attorney or small claims advisor before filing a Defendant's Claim and Order to Plaintiff in the small claims court.

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