If You're the Plaintiff...Filing Your Lawsuit
Have You Asked for
the Money or the Property?
Before you can sue in small claims court, you must first contact the defendant (or defendants) if it's practical to do so and ask for the money, property, or other relief that you intend to ask the judge to award you in court. In legal terms, you must make a "demand" on the other person, if possible. Your request may be oral or in writing, but it's a good idea to do it both ways. Always keep copies of any letters and other written communication. It's wise to send written communication by mail and ask the post office for a return receipt that you can keep as evidence.
How Much Money Does
Your Dispute Involve?
Think carefully about how much money - called damages - to request. The judge will ask you to prove that you're entitled to the amount that you claim. You can receive a judgment only for an amount you can prove. You can prove your claim by using written contracts, warranties, receipts, canceled checks, letters, professional estimates of damage, photographs, drawings, your own statements, and the testimony of witnesses.
Small claims courts have an upper limit - called a jurisdictional limit - on the amount of money that a person can claim. The most you can claim is $5,000, and you can't divide a claim into two or more claims (claim splitting) in order to fall within the jurisdictional limit. A claimant can't file more than two small claims court actions for more than $2,500 anywhere in the state during any calendar year.
If your claim is over the small claims limit, you may file a case in the municipal court or in a consolidated court (the superior court) and either represent yourself or hire an attorney to represent you. Or you may choose to reduce the amount of your claim and waive the rest in order to stay within the small claims court's upper limit on claims for damages. Before reducing your claim, talk to a small claims advisor or an attorney. Once the dispute is heard and decided by the small claims court, your right to collect the amount that you waived is lost forever.
It's always wise to ask for the amount that you can prove, because if the defendant doesn't appear, your judgment will be limited to the claim you can prove.
If the case is against a guarantor - someone whose legal responsibility is based on the acts or omissions of another - the maximum claim is $2,500. As of January 1, 2000, the maximum claim will be $4,000 if the defendant guarantor charges a fee for its guarantor or surety services. An example of a guarantor is an insurance company that issued a bond at the request of an auto dealer or building contractor. Although cases against defendant guarantors are uncommon in small claims court, the small claims advisor or judge will know whether this limit applies.
Where Do You File
Your Case?
It's important
to file your case in a court in the appropriate county or
judicial district. In legal terms, you must file in a proper
venue
(place). As a general rule, a case must be filed
in the county or judicial district where the defendant resides.
This general rule promotes fairness, in that it usually is
easier for a defendant to defend a case if it's filed where he
or she resides
When you file your
case, you must state why the court where you filed your claim
is the proper court. In cases against defendants who live
outside the county or judicial district, the judge must always
inquire and determine if the court is a proper court for that
case. If the judge finds that the case wasn't filed in a proper
court - in legal terms, that venue isn't proper - the judge
must
dismiss
the case without prejudice
unless
all defendants are present and agree that the case may be
heard.
The following are
some exceptions to the general rule that a case must be filed
and heard in the county and judicial district where the
defendant resides:
The claim may be heard in the county or judicial district where the accident occurred or where the defendant resides.
The claim may be heard in the county or judicial district where the contract was entered into, where the contract was to be performed by the defendant, or where the plaintiff is entitled to receive payment.
Consumer purchase (claim by seller)
A claim to enforce a debt arising from a consumer purchase can be filed only in the county or judicial district (1) where the consumer signed the contract, (2) where the consumer resided when the contract was signed, (3) where the consumer resided when the action was filed, and (4) where the goods purchased on installment credit are installed or permanently kept.
Consumer purchase (claim by buyer)
An action also can be filed in localities (1), (2), or (3) immediately above by the consumer against a business firm that provided the consumer goods, consumer services, or consumer credit that are the subject of the consumer's claim. Suit also can be filed by the consumer in any of those locations if the suit is based on a purchase that results from an unsolicited telephone call made by the seller to the buyer (including situations where a buyer responds by telephone call or electronic transmission).
The exceptions
to the general rule that requires filing the case in the county
or judicial district where the defendant resides are complex
and difficult to understand. If you intend to file a claim
against a defendant outside the county or judicial district
where the defendant resides, you should consult with your local
small claims advisor to determine if your case falls within any
of the exceptions to the general rule.
If there is more
than one county or judicial district where your claim can be
properly filed, you may be able to select the location that is
most convenient for your witnesses. If you file in a county or
judicial district in which the defendant doesn't reside, you
must give the defendant a longer period of time for responding
to your notice of the claim, and it will take longer for your
case to get to court for hearing.
Special rules govern venue in actions against state agencies. A claim may be filed against any state agency in any county in which the California Attorney General maintains an office - Sacramento, San Francisco, or Los Angeles. Also, a defendant sued by a state agency can have the case moved to whichever of the Attorney General's offices is closest to the residence of the defendant.
How Quickly Must You
File Your Case?
Most claims
must be filed within a set time limit, called a
statute
of limitations.
If the claim isn't filed within the
time set by the statute of limitations, the judge may be
required to dismiss the claim, unless the operation of the
statute of limitations was suspended and the time limit
extended.
The statute of
limitations prevents the filing of cases that are old. Memories
fade, witnesses die or move away, and once-clear details tend
to blur together. As a general rule, you should file your case
as soon as reasonably possible. Statutes of limitations are
generally not less than one year.
Here are some
examples of statutes of limitations:
- Personal injury - One year from the injury. If the injury isn't immediately discovered, one year from the date it is discovered. A minor has one year from his or her eighteenth birthday to file a case.
- Oral contract - Two years from the date the contract is broken.
- Written contract - Four years from the date the contract is broken.
- Government entity - Before you can sue a government entity, you
must file a written claim with that entity. For cases involving
personal injury and/or damage to personal property, you must
file the claim with the government entity within six months.
For cases involving breach of contract and damage to real
property, you must file the claim within one year. If your
claim is rejected by the government entity, you must usually
file a court action within six months of the rejection, or
you'll lose your right to sue.
Rules governing the statute of limitations are complicated, and exceptions may apply to your claim. For example, if the defendant lived outside the state or was in prison for a time, the period for filing your claim may have been extended. You might assume that a contract was an oral contract, which has a limitation of two years, while it is really a written contract with a limitation of four years. If you're unsure about whether your claim is too old to file, you may file it and let the judge decide whether it was filed too late.
What Forms Do You
File With the Court?
If you are filing electronically, everything needed to present your claim is included within the electronic system. You do not need any other forms. You will need to file in person or by regular mail if you are filing on behalf of a minor or a legally incompetent person. You can obtain copies of all needed forms by visiting or writing any small claims court or by visiting the Judicial Council's website at www.courtinfo.ca.gov.
You must pay the filing fee when you submit your papers. If you can't afford this cost, you may request the court to waive those fees. You can request a court waiver by completing and filing an Application for Waiver of Court Fees and Costs. For information on the standards used by the court. you can see the Judicial Council's Information Sheet on Waiver of Court Fees and Costs, which is used to rule on fee waiver applications, by clicking here.
If the court that you select holds evening or Saturday hearings, you can request an evening or Saturday hearing when you file your case. You can also ask the court clerk for the local court rules.
How Do You Name the
Defendant?
In order for a claim to be enforced, the defendant must be named correctly. However, if you don't know the defendant's correct name and only learn about it later, you can ask the judge to amend or modify your claim at the hearing or later.
If you're not sure which of several possible defendants is responsible for your claim, you should name each person you believe is liable. The court will decide whether the people you named are proper defendants and are legally responsible.
Here are some examples of ways to name a defendant:
Write the first
name, middle initial (if known), and last name.
Example:
"John A.
Smith."
A
business owned by an individual
Write the names
of both the owner and the business.
Example: "John A.
Smith, individually and doing business as Smith Carpeting." If
you win your case, you can enforce your court judgment against
assets (e.g., a checking account balance) in the names of
either John A. Smith or Smith Carpeting.
Write the name of both the business partnership and the individual partners. Example: "Suburban Dry Cleaning" and "John A. Smith and Mary B. Smith." If you win your case, you'll be entitled to collect from either the partnership or either individual partner. They should be sued as "John A. Smith and Mary B. Smith, individually and doing business as Suburban Dry Cleaning."
Write the exact name of the corporation, as you know it, on the claim form. You need not name an individual. Example: "Fourth Dimension Graphics, Inc., a corporation." If the corporation operates through a division or subsidiary, both should be listed. Example: "Middle Eastern Quality Petrol, a corporation, individually and doing business as Fast Gas."
If you're suing to recover your losses in a motor vehicle accident, you should name both the registered owner or owners and the driver. Example: If the owner and the driver are the same person, "Joe Smith, owner and driver." If the owner and driver are not the same, "Lucy Smith, owner, and Betty Smith, driver."
You also need the defendant's correct address so that he or she can be notified of the case. If you're suing a local business or a corporation, you can find the defendant's correct name and address in the telephone directory or the city directory or by checking the city's business licensing bureau, the city or county tax assessor's office, or the county clerk's fictitious business name index. For some counties, you may find this information at www.criis.com.
The Secretary of State's Corporate Status Division can give you the names and addresses of persons who may be served on behalf of corporations that are doing business in California. (See "Determining a Corporation's Directors and Agents for Service of Process" by clicking here.)
In order to
amend your claim if it hasn't yet been served, go to the small
claims clerk's office. Be sure to bring your copy of the
original claim with you. If any of the defendants have been
served on the original claim, you'll need to submit a letter to
the court requesting the court's permission to amend your
claim.
In order to delete
one or more defendants from your claim, you must file a
dismissal with the court. Be sure to indicate that you're
dismissing the case only against certain named defendants and
that you're not dismissing the entire case.
How Do You Notify the
Defendant?
The Plaintiff's Claim and Order to Defendant form, when it is completed and issued by the court clerk, tells the defendant the basis for the claim and the date, time, and place of the hearing.
After you have
filed your claim in the small claims court and obtained a
hearing date, you must arrange for someone to give each
defendant a copy of the Plaintiff's Claim and Order to
Defendant. This must be done before your case can be heard.
Giving this document to a defendant is called
service of
process.
It's your responsibility to make sure that each
defendant is properly notified about the lawsuit and to pay the
fees and costs of giving this notice. As a courtesy, try to
give the defendant more advance notice than is legally
required.
With two
exceptions, service of process must be made within the
boundaries of the state of California. The following kinds of
defendants need not be served within the state:
- A nonresident defendant who owns real property in California, if the defendant has no agent for service of process and the claim relates to the property. (The nonresident defendant may send a representative or submit an affidavit to defend the claim.)
- A nonresident defendant who owned or operated a motor vehicle involved in an accident on a California highway, if service is made on both the defendant and the Department of Motor Vehicles.
Nonresident
(foreign) corporations or partnerships that operate here
usually designate a California agent for service of process.
You may be able to meet the in-state service requirement by
serving the corporation's agent for service of process. To
obtain that information, call (916) 653-7315 (recorded message)
The Secretary of State also has a web site with information on
corporate agents for service of process in small claims actions, which can be viewed by
clicking here.
You can have the Plaintiff's Claim and
Order to Defendant served in the following ways:
The court clerk may serve the Plaintiff's Claim and Order to Defendant by certified mail and restricted delivery and charge you a fee of about $6.00. The court clerk receives a return receipt indicating that the person identified by you for service signed for the certified mail.Prior to your hearing date, you should call the small claims clerk to determine that your claim has been successfully served. You should provide the clerk with the case number and hearing date when requesting this information.
Caution: Service by certified mail isn't very successful. In some courts, only about 50% of the attempts are successful. One reason is that the defendant may refuse to accept delivery or to sign a receipt for delivery. Another is that if the defendant doesn't appear at the hearing, the judge may refuse to hear the case unless the judge determines that it is actually the defendant who signed the return receipt. Frequently, the signature on the return receipt is illegible, or someone other than the defendant signed. If the return receipt is the only evidence of the defendant's signature and there is no other evidence to show that the signature is actually the defendant's, the judge may ask that you serve another copy of the Plaintiff's Claim and Order to Defendant on the defendant.
A process server, someone other than yourself who is 18 years or older and not a party to the lawsuit, may give a copy of the Plaintiff's Claim and Order to Defendant to the defendant. Most plaintiffs use a professional process server or the sheriff as a process server and are entitled to reasonable reimbursement from the defendant for the cost of service if they win the case. If you decide not to use a professional process server or the sheriff and have a friend serve the papers, make sure that the papers are properly served on the defendant. It's not enough merely to drop the papers at the doorstep or serve a member of the household. Service of process is ordinarily accomplished by delivering a copy of the Plaintiff's Claim and Order to Defendant to the following person:
To the defendant in person or to someone that the defendant has authorized to receive service.
To (1) a general partner, (2) the general manager of the partnership, or (3) an individual or entity that the partnership has designated as its agent for service of process.
To (1) the president or other head of the corporation, (2) a vice president, (3) a secretary or assistant secretary, (4) a treasurer or assistant treasurer, (5) a general manager, (6) an individual or entity that the corporation has designated as its agent for service of process, or (7) any other person authorized to receive service of process.
Usually to the minor's parent or guardian or, if no such person can be found with reasonable diligence, to any person having the care or control of the minor or with whom the minor resides or by whom the minor is employed. If the minor is age 12 or older, a copy of the claim also must be delivered to the minor.
A process server may also leave a copy of the Plaintiff's Claim and Order to Defendant at the defendant's home or usual place of business. It must be left in the presence of a competent member of the household who is 18 years or older, or with the person in charge at the defendant's place of business during normal office hours. The process server must tell the person being served what the papers are for. In either case, a copy of the papers must also be mailed to the defendant by first class mail at the place where the papers were left. Substitute service is considered to be completed on the tenth day after mailing. You must state the name of the defendant and the name of the person who served the papers on the Proof of Service form and return this to the clerk.
Service on nonresident motorist
A process server may serve a nonresident motorist involved in an in-state accident by first serving the California Department of Motor Vehicles and then serving the defendant by any of the methods outlined above or by registered mail. This is a rather complex process, and you should consult with the court clerk or small claims advisor before serving a nonresident motorist outside California.
No matter which
type of service you use, service must be completed within
explicit time limits before the hearing. Personal service must
be completed 10 days before the hearing if the defendant lives
or has his or her principal place of business in the same
county where the court is located, and 15 days before the
hearing if the defendant lives or has his or her principal
place of business outside the county. If you used substitute
service after service on the household or business, the
Plaintiff's Claim and Order to Defendant form must be mailed at
least 20 days before the hearing for in-county defendants and
25 days for out-of-county defendants.
If you don't serve
the defendant within these explicit time limits, the defendant
may ask for a postponement and, in most cases, it will be
given. In counting the days, don't count the day in which
service was completed, but do count the date of the
hearing.
