Preparing and Presenting A Small Claims Case

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Preparing and Presenting A Small Claims Case

• Small Claims Court Advisory Program
• of The Legal Aid Society of Orange County

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Small Claims Overview

• Litigants represent themselves
• Attorneys cannot represent litigants
• Claims limited to 7,500 for natural persons and
  sole proprietors
• Claims limited to 5,000 for corporations and
  LLCs
• Claims for 2,500 or more limited to 2 per
  calendar year
• Claims for less than 2,500 are unlimited
• Filing Fee (30-75)
• - 100 after filing 12 claims in a calendar
  year
• Trials set for 30-60 days

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Objective

• Help You In
• Preparing Your Case
• Presenting Your Claim

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Is Small Claims Court Appropriate For Your Case?

• Does the claim justify the cost?
• Which court has jurisdiction?
• Can I collect?

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Plaintiffs Claim (SC-100)

• Your name and address
• Defendants proper name and address
• How much you are suing for
• Why you are entitled to that amount

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Naming an Individual

• Individual Hart, Betty M.
• Husband and Wife
• - Defendant 1 Dunn, Nick
• - Defendant 2 Dunn, Vicky
• Obtain form SC-100A for Additional Plaintiffs and
  Defendants to name additional parties

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Naming a Business

• Owner doing business under a fictitious business
  name (sole proprietorship)
• Jones, John P. d.b.a. Johns Shoe Store
• Partners on behalf of a partnership
• Defendant 1 Hart, Betty M. individually and as
  a partner in Hart and Simons, a partnership
• Defendant 2 Simons, Susan individually and as
  a partner in Hart and Simons, a partnership
• Obtaining a fictitious business name (d.b.a.)
• City Hall for the city in which the business is
  located
• County Recorders Office for the county in which
  the business is located

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Naming a Corporation

• Beacham Beacham, Inc.
• Or Abacast Corporation d.b.a. Maritime Company
• Verify the corporations information by visiting
  the Secretary of States website
• Corporation Records Online www.sos.ca.gov

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Naming a Corporation

• When you search for a corporation, you will find
  two addresses
• 1) Entity Address
• 2) Agent for Service of Process address
• - Write the Entity Address on your Plaintiffs
  Claim
• - Once your claim is filed, you
• notify the defendant by serving the
• corporations Agent for Service
• of Process

Entity Address
5457 Florence Ave
Missoula, MT 59802
Agent for Service of Process
Bruce Covington
6125 Pine St.
Bell Gardens, CA 90201
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Explain Your Claim

• Money Judgments (provide dates and explain how
  you arrived at a particular dollar amount)
• On 11/2/09 Maria Cortez stopped paying on
  contract dated 7/9/09. The remaining balance to
  be paid is 438.22
• Conditional Judgments
• Return of 1988 Toyota Corolla VIN or 5,000
• Rescission
• The phone service I ordered with Pacific Bell
  never worked. I would like to have this contract
  rescinded.
• It is still a good idea to indicate a dollar
  amount on the claim. The judge may find that a
  monetary judgment is appropriate

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Determine Venue

• Where to sue
• Where the defendant resides or does business
• Where the defendant entered into the contract
• Where the contract was to be performed
• Where the Real Property is located
• Where the Accident/Injury occurred

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Determine Venue

• If there is more than one proper venue, you may
  choose the one most convenient for you.

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File the Plaintiffs Claim (SC-100)

• Determine which venue or courthouse to file your
  claim
• Follow venue rules
• File with clerk at the appropriate venue
• Pay Filing Fee or Request Fee Waiver Packet
• Trial will be set 30-60 days from filing

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Defendants Counterclaim

• Defendant may file a counterclaim (SC-120)
• Must be filed at same venue as Plaintiffs claim
• Pay Filing Fee or Request Fee Waiver Packet
• Defendants claim will be heard on same day as
  Plaintiffs
• All of the following procedures are the same for
  Defendant as for Plaintiff.

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Serving the Claim

• Certified Mail
• Sheriff
• Personal Service
• Substituted Service

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Certified Mail

• Certified Mail through the clerk
• Only the clerk can send claim through certified
  mail
• The fee is 10
• You should call before the hearing to make sure
  that the clerk has filed a Proof of Service at
  least 5 court days before the hearing
• Generally the least effective method of service

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Sheriff

• Sheriff
• In Orange County, contact the Sheriffs Office
  that is nearest the defendant
• Fill out a Sheriffs Instruction Sheet
• The fee is 30
• Make sure the sheriff returns the Proof of
  Service to the clerk at least 5 court days before
  the hearing

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Personal Service

• Personal Service
• Disinterested party- any person who is 18 years
  or older and who is not named on the claim
  (e.g.., neighbor, friend, relative, legal process
  server)
• - Personal service must be completed at least 15
  days before the hearing (20 days if the defendant
  is out of county)
• Make sure the Proof of Service is returned to the
  clerk at least 5 court days before the hearing

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Substituted Service

• Substituted Service
• If the defendant cannot be found at her home or
  workplace, your server can use this method
• Your server will leave a copy of the claim at the
  defendants workplace, with a person who appears
  to be in charge OR at defendants home with a
  person who is at least 18 years old

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Substituted Service

• Substituted Service
• A copy must also be mailed First Class to the
  address where the claim was delivered
• Substituted service must be completed at least 25
  days before the hearing (30 days if defendant
  lives outside of the county)
• - Make sure the Proof of Service is returned to
  the clerk at least 5 court days before the
  hearing

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Getting Witnesses and Documents to Trial

• Witness
• Complete Small Claims Subpoena and Declaration
  (SC-107)
• After clerk issues subpoena, have copy served on
  witness (the plaintiff may serve the subpoena)
• Return proof of service
• Witness can ask for 35 dollars a day and 20
  cents per mile

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Getting Witnesses and Documents to Trial

• Documents
• Complete Small Claims Subpoena and Declaration
  (SC-107) and check the box requesting
  witness/custodian of records to produce documents
• Describe exactly which documents you need and the
  reason for your request (special rules apply for
  subpoenaing consumer records)
• After clerk issues subpoena, have copy served on
  the witness/custodian of records
• Return proof of service

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Preparing for Hearing

• Attend Small Claims hearings to understand
  courtroom process and atmosphere
• Keep your opening statement brief and straight to
  the point
• Make sure your evidence is easily understood and
  organized
• Make 3 copies of everything (1 for you, 1 for the
  other party, 1 for the judge)

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At the Hearing

• Check in early with the bailiff
• Before hearing, the bailiff will ask if you would
  like to try mediation. Both parties must agree.
• If you go to court, speak only to the judge
• Address the Judge as Your Honor

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At the Hearing

• Plaintiff presents their case first
• Defendant will present their case when plaintiff
  is done
• Judge will ask questions
• Do not interrupt the judge at anytime

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Judgment

• Judge can make a decision at the hearing or take
  it under submission
• Judge can make the Judgment conditional
• You will receive the Judges final decision in the
  Notice of Entry of Judgment
• You must wait 30 days from the date of mailing on
  the Notice of Entry of Judgment to begin
  collecting

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Appeal

• Only a losing defendant (or plaintiff who has
  lost a countersuit) may appeal
• Must be filed no later than 30 days after the
  date of mailing on the Notice of Entry of
  Judgment
• Results in a Trial de novo
• Filing fee is 75.00
• Attorneys may represent the parties

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Collect Your Judgment

• You must take steps to collect your Judgment.
  The court will not do it for you
• You can only collect from the debtors assets.
  If the debtor has no assets, you will not be able
  to collect your Judgment

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Collection Methods

• Application and Order to Produce Statement of
  Assets and to Appear for Examination
• Record Real Property Lien
• Garnish Wages

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Collection Methods

• Levy Bank Account
• Till Tap
• Keeper
• Repossess
• Third Party Levy/garnishment

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Collection Resources

• How To Collect When You Win a Lawsuit by Nolo
  Press
• Sheriffs Procedural Manual by California State
  Sheriffs Association

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FAQ

• How do I locate the defendant?
• What is the most I can bring an action for?
• How many times can I bring an action in a year?
• What is the proper venue for my case?
• How do I serve the other party?
• How do I add a spouse to a claim?

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Small Claims Resources

• Everybodys Guide to Small Claims Court
• by Nolo Press
• How to Collect When You Win a Lawsuit
• by Nolo Press
• CCP 116.110-116.960
• Access to www.legalresolutions.com and
  www.occourts.org