Prepare, File, and Serve a Claim
- Filing a Claim – Overview
- Before you file your claim, you must ask the party you are suing, known as the Defendant, for the money. You can do this either orally or in writing.
There are Monetary Limits for Small Claims Court. Always sue for a dollar amount. Be prepared to substantiate and verify the dollar amount of your damages.
To file your claim, you will need to know the correct and complete name of the party you are suing. If you’re suing a business, it’s important to know whether it’s a corporation, partnership or sole proprietorship.
At the hearing be prepared to tell your story in a brief, concise, logical way, and to prove what you say by bringing evidence such as photos, receipts, bills, contracts or witnesses to support your case. However, numerous exhibits can be confusing and are not recommended. Be sure your exhibits are organized, concise and well marked. If you are claiming a service was performed improperly, have either oral or written verification by an expert in that field. For example, if you believe your vehicle was not repaired properly, have a mechanic’s statement to verify that fact. If your claim involves an auto accident, bring at least two (2) written estimates of repair costs.
- Claim Forms
- Once you have made your demand upon the defendant for the specific amount of money you wish to seek in court and have received no response, you may file your claim. The first step is to fill out a form called “Plaintiff’s Claim and Order to Go to Small Claims Court.”:
- The form is also available at the Small Claims clerk’s office or you can download the fillable form. Once you complete the form, mail or deliver it to the clerk’s office with a check made payable to Superior Court of California, County of San Joaquin for the appropriate amount.
- You may also request a form packet by mail. Include a self-addressed envelope with two first-class stamps with your request.
Please refer to the Fee Schedule for the filling fees.
NOTE: If you are conducting business under a fictitious name, you will also need the following form: Fictitious Business Name Declaration. Please bring this form with your other forms to the clerk
Additional San Joaquin Small Claims forms are also available for download.
Other Judicial Council forms
- Where to File a Claim
- A Small Claims Court case must be filed in the proper court or Venue as it is sometimes called.
The proper place to file your case is where the Defendant (the person you are suing) lives or does business. See below for a list of cities and locations within San Joaquin Court’s venue.
If your claim is about a signed contract, you can file where the contract was signed or where the Defendant lived or did business at the time the contract was signed or agreed to, or where the contract was to be performed.
If the Defendant is a corporation, you can sue where the contract was breached. In cases involving injury or property damage, file where the injury or damage occurred or where the defendant or defendants live.
If you do not have a signed contract, and you are suing because the Defendant owes you money for goods, services, loans or extensions of credit for personal, family or household use, file your case in the judicial district in which the defendant lived when the agreement or oral contract was entered into or in which the defendant now lives.
If you are suing because of money owed on a retail installment account, a sales contract, or a motor vehicle finance sale, you can sue in one of the following judicial districts:
- Where the buyer lives;
- Where the buyer lived when the contract was entered into;
- Where the buyer signed the contract;
- Where the goods or vehicle are permanently kept.
If the proper venue for your small claims action is within San Joaquin County based on the information above, your filing must be submitted to the appropriate small claims clerk’s office.
If you think you are being sued in the wrong venue, request a dismissal. Be sure to write to the court well in advance of the trial date and state the grounds for the dismissal. You can also appear on the trial date and request a dismissal. If the court agrees with you, the case will be dismissed unless all Defendants are present and agree to have the trial.
San Joaquin Court’s venue:
Stockton Branch: Includes the City of Stockton and suburban area, Farmington and Linden, Delta area and surrounding unicorporated areas. Also includes the cities of Manteca, Ripon, Escalon, French Camp, Lathrop, Tracy, Banta, Mountain House, portion of Vernalis and surrounding unincorporated areas.
Lodi Branch: Includes Acampo, Clements, Lockeford, Lodi, Terminous, Thornton and Woodbridge.
- How to serve your claim
- The person or business you are suing is called the Defendant. Before your case can be heard in Small Claims Court, each Defendant must receive a copy of your claim. This is called “serving” the Defendant or “service”. The Defendant must be served within the State of California. There are 2 exceptions. 1. If your complaint involves real property owned by a Defendant who lives outside the state of California or 2. a car accident where the owner or operator of the motor vehicle involved in an accident is an out of state resident. Contact the Clerk’s office for service instructions.
If the Defendant is a corporation, check to see if the Defendant maintains an agent for service in California by writing:
Secretary of State-Corporate Status Unit
1500 11th Street
Sacramento, CA 95814
Enclose a check for $4.00 for each corporate inquiry.
You may also obtain the name of a corporation’s Agent for Service of Process on line at www.ss.ca.gov.
The Defendant must be served within explicit time limits. The Defendant must be served at least 15 days before the trial date if the Defendant is located in San Joaquin County, or at least 20 days before the trial date if the Defendant is located outside of San Joaquin County.
You may not serve the claim yourself.
The Defendant can be served in one of the following ways:
- By Personal Service:
Any person who is 18 years old or older, and who is not a party to the claim, can serve the claim. A witness is generally considered party to the claim.
- By Substituted Service:
A copy of your claim must be left at:
- at the defendant’s business with the person in charge; OR
- at the defendant’s home with a competent person who is at least 18 years old. The person who receives the claim must be told about its contents. Another copy must be mailed, first class, postage prepaid, to the defendant at the address where the paper was left. The service is not complete until 10 days after the copy is mailed.
No matter which method of service you choose, the defendant must be served by a certain date or the trial will be postponed. If the defendant lives in the county, service must be completed at least 15 days before the trial date. This period is at least 20 days if the defendant lives outside the county. The person who serves the defendant must sign a court paper showing when the defendant was served. This paper is called a proof of service (form sc-104). It must be and returned to the court clerk as soon as the defendant has been served.
- By a Registered Process Server: They are listed in the consumer yellow pages of your telephone book.
- By a Sheriff: In some counties, a Sheriff will serve the claim for a fee.
- By Certified Mail: Only the Small Claims Clerk can serve the claim this way. There is a fee. Service is completed when the receipt, signed by the Defendant is returned to the Clerk. If the Defendant refuses to sign, service is not considered complete.
The person who serves the Defendant must file a proof of service form with the Small Claims Clerk before the trial. The Clerk has the form. In the San Joaquin County Court, it must be filed at least 48 hours before the trial.
The Defendant need not accept or touch the claim in order to be served. Once the Defendant has been correctly identified, the claim can be dropped at his feet.
- By Personal Service:
- Who to Serve
- A copy of the claim must be delivered to each person or business being sued. This is called serving the defendant or defendants.
If you are suing an individual, serve the person you are suing. If you are suing more than one. individual, such as, for example, the registered owner and the driver of a car involved in an accident, serve each person you are suing.
If you are suing a single-owner business, serve the owner. If the business is a corporation, you may serve any Corporate Officer or Authorized Agent.
If you are suing a partnership under its business name, serve one of the partners. If you are suing a partnership under its business name and the partners individually as well, serve each partner. If you are suing a general partnership, serve the general partner, general manager or the agent for service, if there is one.
If you are suing a corporation, serve an officer, or the agent for service. To find out the names and addresses of the officers or the agent for service, write to the Secretary of State’s office, Corporate Status Unit, 1500 11th Street, Sacramento, CA 95814. There is a $4.00 fee for this service. You will need the exact name of the corporation.
If you are suing the state, the State Attorney General’s office (mailing address P. 0. Box 944255, Sacramento, CA 94244) accepts service for Cal Trans, California Highway Patrol, and most Consumer Affairs Boards and Bureaus. Call the Attorney General office at 1-800-952-5225 for more information www.ss.ca.gov.
You may not sue the Federal government in small claims court.
If you are suing your landlord, and the manager of your apartment building rented the apartment to you and won’t tell you where the landlord lives, you can serve the manager. To locate the name and addresses of the owners, you may go to the Property Tax Office. Give the address of the property to the Property Tax Office clerk and they will be able to give you this information.
The person who serves the defendant must file a proof of service form with the Small Claims Clerk before the trial. Otherwise, service is not considered complete and the trial will not proceed. If a process server serves the claim, the server will usually file the proof of service.
- Locate a Person or Business
- Locating a Person
If you can’t find the person you wanted to sue or who owes you money, you may find the following information helpful in locating them.If the person has moved, address a letter to him at his last known address. Several spaces below your return address, write, “Address Correction Requested. Do not Forward”. The letter will be returned to you with the new address, if one is on file.If the person you are seeking owns property, a search of the tax rolls could help you find his home or business address. The tax rolls in the Assessor-Recorder’s office list the names and addresses of property owners in the County by both the owner’s name and by the address of the property.
In San Joaquin County the Assessor-Recorder’s office phone number is (209) 468-3939.
They are located at:
44 N. San Joaquin Street
Stockton, CA 95202
If the only information you have concerning the other party is a telephone number, and the number is one that is listed, the Reverse Directory may provide the address. Reverse Directories can be found at the main library.
Locating a Business
If the only address you have is a post office box, you can request the name, address and phone number of the holder of a post office box that is used for business purposes from the post office. Bring proof that the box is used for business purposes.
If the only information you have concerning the other party is a telephone number, and the number is one that is listed, the Reverse Directory may provide the address. The Reverse Directories can be found at the main library.
You may also find the following useful:
The Secretary of State’s office maintains a record of the names and addresses of the officers of corporations and their agents for service. The agent for service or a corporate officer can be served with the claim in a small claims action. The fee is $4.00 for an uncertified copy and $10.00 for a certified copy per name requested. Write a letter requesting the most recent Statement of Officers on file with the Secretary of State. Submit your written request along with your check or money order, payable to the Secretary of State, for the appropriate amount. Enclose a self-addressed stamped envelope for the return of your information. Send to:
Secretary of State-Corporate Status Unit
1500 11th Street
Sacramento, CA 95814
(916) 657-5448 (recorded message)\
You may now obtain the name of a corporation’s Agent for Service of Process on line at http://www.ss.ca.gov/
Sole Proprietorships and Partnerships
The County Clerk’s office maintains a listing of fictitious business statements. The statement lists the names and addresses of the owners of businesses operating under a name different from the owners. Check the printout (or computer) for a listing of the business. Copy the certificate number to the left of the listing and ask the clerk to assist you in finding the certificate in the files. The certificate contains the owner’s name and address. For information by mail, send a stamped self addressed envelope and a check or money order, payable to the County of San Joaquin. The research fee is $5.00 for each business per year. The County Clerk’s office phone number is (209) 468-3939.
They are located at:
44 N. San Joaquin Street
Stockton, CA 95202
The City Clerk’s office, tax and permit division, maintains a list of the names and addresses of most persons licensed to do business in a city.
For Limited Partnership information contact Secretary of State Limited Partnership Status Unit at (916) 653-3365
Give the name of the company. Ask for the following information:
- Full name address of the limited partnership
- Name and address of the General or Managing Partner
- Name and address of the Agent for Service.
For more information, send a written request to:
Secretary of State Limited Partnership Status Unit
1500 11th St. Room 345
Sacramento, CA 95814
- Name a Defendant
- It is very important to name the Defendant correctly, because you will only be able to collect from the party or parties whose name is exactly the same as the name that appears on your claim.
If you are suing an individual, write his or her first name, middle initial and last name.
If you are suing a company owned by one person, you must write both the owner and the company name. You should also name the owner as the individual to increase your chances of collecting if you win. Write the letters DBA which stands for “Doing Business As” between the name of the owner and the company name, if the owner is doing business under a fictitious name. For example, you would write Sue Smith, individual & dba Continental Candies.
If you are suing a husband and wife, write the husband’s full name and the wife’s full name. For example, James A. Jones and Sally R. Jones. If you don’t know the wife’s first name, write James A. Jones and Mrs. James A. Jones.
If you are suing a partnership, it’s a good idea to name both the partnership and the partners as individuals as well. For example, you would write Jim Smith, Individual & John Jones Individual & dba Smith & Jones. If you win your case, you will be entitled to collect from either the partnership or the individual partners.
If you are suing a corporation, write the exact name of the corporation, as in the following example:
Sally’s Dresses, a corporation
Sally’s Dresses, Inc
If a corporation owns a division or subsidiary it should be designated as in the following example:
“Lotus Corporation”, doing business as “The Flower Company”
You do not name an individual when suing a corporation. Just the corporation is named. If you wish the Court to serve your defendant by certified mail, they will need the name of a corporate officer or agent for service.
If you are suing as a result of a vehicle accident, you must name both the registered owner and the driver. If the owner and driver are the same person write, for example, Sam Jones, owner and driver. If the owner and driver are not the same you would, for example, write Lucy Smith, owner and Betty Smith, driver.
- Subpoena a Witness
- It is often very helpful to have a witness in court with you who knows first hand the facts of the case and can support your point of view. Or, you may need documents or records to prove your case.
If your witness will not come to court voluntarily, or will not voluntarily provide the documents or records you need, you can subpoena them. A subpoena is a court order which requires a person to come to court. A Subpoena Duces Tecum is a court order which requires a person to bring certain papers or records to court. These documents must be delivered to the court on or before the date of the trial.
You can get a subpoena or a Subpoena Duces Tecum from the Small Claims Court Clerk. A copy of the subpoena must be delivered to the witness personally. Any person, including yourself, may deliver the subpoena.
You must return the original subpoena, the one with the seal on it, to the court. Serve the copy.
A witness can ask for fees of $35 per day and 20 cents a mile each way. Witness fees for law officers are higher. If a witness asks for fees, they do not have to appear if they are not received. The person who serves the subpoena should be prepared to pay the fees at the time of service if they are requested. If the witness does not ask for fees, you do not have to offer them.
To subpoena documents or other papers, ask the Clerk for a Subpoena Duces Tecum.
You will need to know exactly which documents or papers you need, since Subpoena Duces Tecum must be served with a copy of a declaration describing the documents you need. The declaration is part of the subpoena that the clerk will give you.
After the subpoena is served, a Proof of Service form with the original subpoena must be filed with the Small Claims Court Clerk before the hearing date.
- If you believe the party suing you owes you money you can countersue by filing a “Claim of Defendant”. Both cases will be heard at the same time.
Your claim cannot be for more than $5,000 or $7,500 if you are a natural person (not a business or public entity) (*see below). If you have a claim for more than this amount, you may sue in the civil division of the trial court or you may sue in the small claims court and give up your right to the amount over $5,000 or $7,500 if you are a natural person. You cannot, however, file more than two cases in small claims court for more than $2,500 each during a calendar year. Please refer to the Fee Schedule for the filling fees.
You must notify the other party that you are suing by having a copy of the Claim of Defendant served on them at least 5 days before the trial date. However, if you were served with the Plaintiff’s claim ten (10) days or less before the trial date, you can serve the defendant’s claim at least one day before the trial date. You cannot serve the Claim of Defendant yourself.
If your counter claim exceeds the jurisdictional limit of the Small Claims Court and you want your case to be heard in the Civil Division of the Superior Court, you must first file a Summons and Complaint in that Division. You will need to bring to the Small Claims Clerk a copy of the Civil Complaint, a copy of the Proof of Service, a Declaration, an order for the Commissioner to sign.
Upon receipt of the above described documents, usually the Small Claims clerk will transfer its file to the Civil Division of the Superior Court. In this manner, both the plaintiff’s and defendant’s claims may be heard together.
* The $5,000 or $7,500 limit does not apply, and a $4,000 limit applies, if a “defendant guarantor … is required to respond based upon the default, actions, or omissions of another” ($2,500 if the defendant guarantor does not change a fee for the service).
Change a Hearing Date or Claim
- Change a Court Date
- A continuance is a request to postpone a court date. It is requested from the Small Claims Clerk but can only be granted by the judge. To request a continuance, the court charges a fee of $10.
A continuance can be requested by mail by either party. The request is sent to the Small Claims Clerk’s office along with a check for $10, payable to the court. A copy of your request for a continuance must be mailed to the other parties to the claim. Requests must be submitted at least 10 days in advance of the court date. If the continuance is granted, the hearing will be postponed for at least 15 days. Notice of the new date will be mailed to all parties.
If you do not have enough time before your court date to write for a continuance, you should either appear in court as scheduled and ask for a continuance, or bring a written statement explaining why you need a new court date to the Small Claims Clerk’s office and ask to have it attached to your case file. There is a $10 fee for this service.
- Change or Amend a Claim
- You can change or amend a claim that has already been filed in small claims court in the following ways:
- To amend a claim, if your claim has not been served, go to the small claims clerk’s office and ask to have an amendment added to the claim. Be sure to bring your original claim forms with you. If any of your defendants have been served on the original claim, you will need to submit a letter to the court requesting permission to amend your claim.
- To delete one or more defendants, use the dismissal form you received with your claim. Be sure to indicate that you are dismissing the case only against one or more defendants and that you are dismissing the entire case against that defendant or defendants.
- You do not have to notify the remaining defendants of the dismissal.
Appeal, Collect or Vacate Judgment
- Appeal a Judgment
- An appeal of a Small Claims judgment is a request to reverse the decision by having the case heard again in the Civil Division of the Superior Court. A Plaintiff does not have the right to appeal a small claims judgment except in certain circumstances which will be explained further on.
Only the Defendant can appeal the judgment. An insurer of the defendant may also appeal the judgment if the judgment exceeds $2500 and its policy with the Defendant covers the matter to which the judgment applies.
The rule to remember is if you lose on your own claim, you cannot appeal, but if you lose on the other party’s claim, you can appeal. It is especially important to remember this when a claim of defendant is filed. In that case, the original Defendant is acting as Plaintiff and cannot appeal if he or she loses on the claim of defendant.
An appeal of the small claims judgment must be filed within 30 calendar days of the date of the Small Claims decision or, if the decision is mailed to you, within 30 days of the date the clerk mails the Notice of Entry of judgment. The date will appear on the form you receive.
An appeal is filed with the Small Claims clerk. The case is heard in Civil Division of the Superior Court and is treated as a new case. All the evidence and witnesses must be presented again.
On appeal, the claim is heard for the original amount. For example, if you were sued for $1,000 in Small Claims Court and the judgment against you was for $500, on an appeal the judge has the right to award the full $1,000 to the plaintiff if you lose.
While the case is being appealed, the defendant does not have to pay the Small Claims Court judgment.
If the Defendant loses the appeal, the Defendant must pay the Plaintiff the amount of the judgment plus interest and costs; examples of costs are any earnings you can prove you lost or any money you actually paid for transportation and lodging in connection with the appeal. The Defendant may also have to pay attorney’s fees up to $150.00.
If the court finds that the appeal was intended to harass or delay the Plaintiff, or to encourage the Plaintiff to abandon the claim, the court may award the plaintiff attorneys fees of up to $1,000.00 and any actual lost earnings. The court may, if it wishes, award the cost of lodging and transportation incurred in connection with the appeal up to $1,000.00, following a hearing on the matter.
- Collect a Judgment
- You will have to collect your money yourself if you win in Small Claims Court. The court will not collect it for you. You must wait at least 30 days from the date of the Entry of Judgment to collect if the defendant appeared in court, and at least 30 days if you have a Default Judgment. You need to check with the county Sheriff in the appropriate county to see if they still serve Writs of Execution. If not, you will need to employ a process server who will serve the writ. Before having the court issue the writ, you will need to file a Memorandum of Costs form for the process servers’ fee and mail a copy to the opposing side. If the 30th day falls on a weekend of holiday they have one additional work day to file their appeal. The judgment is good for 10 years and can be renewed. You are entitled to interest, at 10 percent per annum, beginning with the date of the Entry of judgment, and to payment for some of your costs in collecting the judgment.
To add your costs to the judgment, ask the Clerk in the Small Claims Office for a Memorandum of costs form. Fill it out and return it to the Clerk. After you collect your judgment, your must file a Satisfaction of Judgment form with the Clerk.
The following are some things you can do to try to collect if the person who owes you money, called the judgment debtor, refuses to pay:
- Garnish the Debtor’s Wages
A wage garnishment orders the debtor’s employer to give you part of the debtor’s wages until the debt is paid.To garnish wages, bring your judgment to the Small Claims Clerk and ask for a Writ of Execution.
- Levy upon the Debtor’s Bank Account
This means that money will be taken from the debtor’s bank account to pay the judgment. You will need the name, address and branch of the bank. Get a Writ of Execution from the Small Claims Clerk. There is a fee to issue a Writ of Execution.
- Record an Abstract of Judgment
An “Abstract of Judgment” puts a lien on any land, house or other buildings the debtor owns in the county where the abstract is recorded. Record the abstract in all counties where the debtor may own property. If the property is sold, the debt will be paid out of the proceeds of the sale.
An Abstract of Judgment will also put a lien on property the debtor may buy in the future and prevent the debtor from refinancing any property until the debt is paid.
To record an Abstract of judgment, bring your judgment to the Small Claims Clerk and ask for an Abstract of Judgment. There is a small fee. Take the “Abstract” to the County Recorder’s office to record. There is a fee. In San Joaquin County, they are located at: 44 N. San Joaquin Street, Stockton CA 95202
There are some other ways to try and collect judgments:
- Have the Sheriff do a Till Tap
If the debtor is a business with a cash register, the Sheriff can go to the business and take enough money out of the register to pay the judgment and his fee.
First get a “Writ of Execution” from the Small Claims Clerk and bring it to the Sheriff. Instruct the Sheriff to do a Till Tap. You must know the name and address of the business. If there is not enough money in the register to pay the judgment, you will have to pay another fee each time the Sheriff goes back.
- Put a “Keeper” in the Debtor’s Business
If the debtor is a business, the Sheriff will, for a fee, remain in the debtor’s business, including a doctor or dentist’s office, and take all the funds that come in until the judgment is paid. The keeper can collect cash, checks and bank credit card drafts.
You will need the name and address of the business. Get a Writ of Execution and take it to the Sheriff. Tell the Sheriff you want to put a keeper in the business. If the debtor closes the business while the Sheriff is there, you will have to pay another fee each time the Sheriff goes back.
- Hold a Judgment Debtor Hearing
A judgment debtor hearing requires the debtor to come to court and answer your questions about his salary, bank accounts, property and anything else that could be used to pay the judgment. If you wish, you can subpoena bank books, property deeds, paycheck stubs, etc., before you hold the hearing. You will need a subpoena duces tecum. Get the subpoena from the Clerk. We have provided some sample questions for examining the judgment debtor.
To hold the Hearing, ask the Small Claims Clerk for an “Order of Examination”. There is a fee. The Order of Examination must be served on the debtor by the Sheriff or a Registered Process Server. The debtor must be within 150 miles of the Court.
- Suspend Debtor’s Driver’s License
If you won a judgment for $500 or less in an auto accident case, and the judgment is not paid within 90 days after the judgment becomes final, you can have the debtor’s driver’s license suspended for 90 days. Get form DL 17 from the DMV. There is a fee.
The Resources page lists books you may find useful on this topic.
- Garnish the Debtor’s Wages
- Sample Questions for Examining the Judgment Debtor
- Be sure to listen to the answers: they may help you to think of other questions to ask.
- What is your home address?
- What is your home telephone number?
- Are you married? If so, what is. your spouse’s first name, maiden name and last name?
- Do you live in a rented apartment? A private home? A Condo? or a mobile home? What is the address?
- If you live in a private home, condo or mobile home, is it owned by you?
- If you live in a rented apartment, who pays the rent? To whom is it paid?
- Is it paid by check? Is your rent up to date?
- Do you have any boarders or sub-tenants? If so, what are their names and how much do they pay you each month?
- What is your occupation?
- What is your social security number?
- Are you presently employed? If so, by whom?
- At what address?
- What is your work telephone number?
- What is the name of your supervisor?
- What is your gross salary? What is your net salary?
- Do you receive commissions? When are you paid?
- How much is owing to you now?
- Do you have any part-time employment? If so, please explain.
- Is your spouse employed or in business?-If so, what is his/her salary?
- Do you own any stock or any interest in the business where you are employed? If so, please explain.
- Do you or your spouse have any Bank, Checking or Savings accounts? If so, what is the name of the bank & branch and what are the account numbers and present balances?
- Do you or your spouse have a driver’s license? What are the driver license numbers? For what State?
- How did you get here today?
- What is the year and make of your car? Do you own it?
- Do you have any property, personal effects, cash or other assets that you have not yet mentioned? If so, explain.
- Vacate a Default Judgment
- A Default Judgment means that the court has decided that you owe money to a person or business who sued you, even though you were not in court to tell your side of the story.
You cannot appeal this kind of judgment and have a new trial until you “vacate the default judgment”, that is until you have the judgment removed or erased.
To vacate a Default Judgment do the following:
- Get the form called “Notice of Motion to Vacate Judgment” from the Small Claims Clerk.
- Fill the form out and file it with the Small Claims Clerk together with a filing fee. You must do this within 30 days of the date of mailing which is written on the Entry of Judgment Notice you received from the court. You should have a good reason for not having appeared in court when you were supposed to.
If the reason you did not go to court was because you were not served with a copy of the claim, you have up to 180 days after you find out about the Default Judgment against you to file the Notice of Motion to Vacate Judgment form.
When you file the form, the Small Claims Clerk will set a date on which you and the person suing you are to appear in court. The judge will decide to vacate the judgment against you or not.
To help the judge decide in your favor, bring whatever evidence you can to the hearing to show why you were unable to come to court the first time. An example of what to bring might be a letter from a doctor or a hospital bill.
If the judge agrees to vacate the judgment, the original case will probably be heard right then. Be prepared to tell your side of the story and present your evidence in an organized and concise manner at that time.
If you have witnesses to help your case who could not be present, you can ask the judge for a continuance. The judge may or may not grant the continuance.
If the judge decides not to vacate the judgment, you can only appeal the judge’s denial of the Motion to Vacate. You cannot appeal the judgment against you. You must file the appeal within 10 days of the judge’s decision.
To file the appeal, get a form called “Notice of Filing Notice of Appeal” from the Small Claims Clerk. Fill it out and file it with the small claims clerk, a fee is required.
If the judge decides not to grant your appeal and not to vacate the judgment, you are responsible for paying the judgment.
If the judge does grant your appeal and vacates the judgment, the original case will usually be heard right then. Be prepared to present your case, including any evidence you have, at the time of the hearing. Remember, your case will only be heard if the judge grants your appeal.
Who Must Appear in Court
- In general, if you are suing someone or being sued, you must appear in Small Claims Court and represent yourself. You may not be represented by anyone else. However, in cases where a claim can be proved or disputed by evidence of a business record and there is no other issue, a regular employee, who is qualified to testify about the business record may appear for the Plaintiff or Defendant. There is another exception. If you are suing the owner of real property in California and the owner lives out of state, the owner can be represented in court by one other person, provided they are not an attorney, or can submit written declarations instead of appearing in person. Also a member of the armed forces, on active duty and assigned outside the state after his or her claim arose, need not appear if the assignment is for more than six months.
If a business is a sole proprietorship, the owner must appear in court. If a business is a partnership, one of the partners must appear.
If the business is a corporation, the person appearing in court cannot be employed, appointed or elected just to represent the corporation in court. He or she must have other duties as well. If a business is a corporation, an employee, officer or director must appear in court.
Prepare and Present Your Case
- Your hearing will take place in a courtroom with many people who have been scheduled for that day. The judge is likely to ask that the parties first try to settle. If a pro-tem (temporary) judge is taking the place of the regular judge that day, you will be asked to sign a paper indicating your willingness to have him/her decide your case or, if you are not willing to stipulate to having a temporary judge hear your case, to come back another time.
When your name is called, you and the other party in your case will move to the front of the room and tell your stories to the judge. Small Claims cases usually take no more than 10 or 15 minutes. It is very important, therefore, that you plan ahead of time what you will say. Your story should be well organized and to the point. Do not go off on tangents, include too many details or be repetitious. Stay calm and polite.
If you are the person suing (the Plaintiff), you will speak first. Although everyone swears to tell the truth under penalty of perjury, don’t count on the other party admitting fault. It is up to you to PROVE your case.
Telling a story in court is not like telling it to a friend. When you talk to a friend, you often start at the beginning, build up some suspense and finish with a punchline. In court you do the opposite. You want the judge to know as soon as possible why you are there. Your Opening Statement should summarize the nature of your claim and the damages you have suffered as a result of injury, breach of contract, violation of a right, etc.; why the other person is at fault through intentional or negligent behavior and why you did not contribute substantially to the loss.
In a case of breach of contract you might say, “Your Honor, this is a matter of a painter who did not carry out his contract to paint my house in San Joaquin after I paid him the full amount of $2,500 on February 1, 1993.” Or, in a landlord tenant dispute, “Your Honor, this is a case of a security deposit of $600 which has not been returned to me although I moved out on January 1, 1993 with proper notice and left the place clean and with no damage.”
Briefly give the facts, usually in chronological order. Group facts together. Instead of reciting all the dates you brought your car back for repairs, say “In the 6 months between January and June of 1993, I took the car in 14 times and each time he did not adjust the carburetor.”
Decide what the main points and issues are and stick to those in telling your story, referring to evidence that supports your position. Evidence can include copies of contracts, estimates (you should have at least 2 for car repair and similar disputes), bills, photographs, diagrams (important for auto accidents), police reports, etc. If you need documents which are not in your possession, you can request them through a Subpoena Duces Tecum. This is a form you get from the Clerk, which you serve on the party who has the documents. Be selective. You don’t want to overwhelm the judge with either the number or complexity of your materials.
You may also bring witnesses, either someone who has first-hand knowledge of the facts (he saw the accident) or is an expert on the subject (the mechanic who examined your car after it was towed). Avoid bringing friends or relatives (the judge may think they are only trying to help you) and be sure you know what to expect from your witnesses. It is not a good idea to subpoena a “hostile” witness; your defendant’s girlfriend who saw him hit you, may surprise you with her testimony or the mechanic who is worried about his job, may change his story in court.
In some cases where there are not witnesses or documents, it becomes a matter of one person’s word against another. The judge may be convinced by the manner of the parties that one is being more truthful, or one story may seem more reasonable or plausible than the other. Many judgements represent a middle ground, much like a compromise which could have been worked out between the parties without going to court.
In planning what to say, try to anticipate and be prepared to refute what the other party will bring up. In addition to explaining how the other party was at fault, you should be able to show how your own behavior was not also responsible, that you tried to minimize the loss or, if you are the defendant, that the person suing you did not do his best to reduce the extent of his loss. Example: “When I broke my lease by moving out 3 months early, the landlord did not even try to rent the apartment to anyone else.”
If you cannot express yourself in English, you should bring someone who can. With few exceptions, the court does not provide an interpreter and you will want to be sure the judge fully understands your story. If you know you will be very nervous and likely to leave out important facts, briefly summarize your case in writing and ask the judge to allow you to submit it before you tell your story. Be sure to have a copy for the other side.
You can refer to any specific laws that relate to your case and may even present information you have received from a consultation with an attorney. Remember though, that you are not supposed to be a lawyer and it is not necessary to act like one.