Basic Considerations and Questions
Small claims court is a special court where disputes are resolved quickly and inexpensively. In small claims court, the rules are simplified and the hearing is informal. Attorneys are generally not allowed. The person who files the claim is called the plaintiff. The person against whom the claim is filed against is called the defendant. They are also called claimants or parties. Making the Best of Your Day in Court section for information on an interpreter.
In general, claims are limited to disputes up to $5,000. However, natural persons (individuals) can claim up to $7,500. Corporations, partnerships, unincorporated associations, governmental bodies, and other legal entities cannot claim more than $5,000. Also, no claimant (natural person or legal entity) may file more than two small claims court actions for more than $2,500 anywhere in the state during any calendar year. For example, if you file an action for $4,000 in February 2010, and another action for $4,000 in March 2010, you may not file any more actions for more than $2,500 until January 1, 2011. You may file as many as you wish for $2,500 or less.
The fee for filing in small claims court depends on the amount of the claim: $30 if the claim is for $1,500 or less, $50 if the claim is for more than $1,500 but less than or equal to $5,000, or $75 if the claim is for more than $5,000. However, if a plaintiff has filed more than 12 small claims in California within the previous 12 months, the filing fee for each subsequent case is $100. The filing fee is paid by the plaintiff to the clerk of the small claims court.
Since the limits on amounts of claims and filing fees may be changed by legislative action, you should check with your local small claims adviser or small claims clerk to determine the current limits on claims and filing fees. You may also consult with your own attorney if you wish.
Small claims courts can order a defendant to do something, as long as a claim for money is also part of the lawsuit. If you are suing to get back the lawn mower you loaned to a neighbor, for instance, the court can order the return of the mower, or payment for the mower if it is not returned. Otherwise, small claims courts may order a defendant to do or not to do something only when expressly authorized by statute (i.e, an order preventing an unlawful telephone solicitation).
Examples of other disputes that might be resolved in small claims court are:
- Your former landlord refuses to return the security deposit you paid.
- Someone dents your car's fender and refuses to pay for its repair.
- Your new TV will not work, and the store refuses to fix it or replace it.
- Your tenant caused damage to the apartment in an amount that exceeded the security deposit. (Note: You can't file an eviction action in small claims court.)
- You were defrauded in the purchase of a car, and desire to cancel the purchase and get back the amount of your down payment from the seller.
- You lent money to a friend, and he or she refuses to re-pay it.
In most small claims courts, cases are heard within 30-40 days after filing the plaintiff's claim, but they are never set for earlier than 20 days or more than 70 days after the claim is filed. Most cases are heard on weekdays, but some courts also schedule evening and Saturday sessions.
Before filing a case in small claims court, it's important to decide whether going to small claims court is the best way to resolve your dispute. Many disputes can be resolved by using other dispute resolution methods, such as mediation. Many counties help resolve disputes informally through their local consumer affairs offices, or through local public or private dispute resolution or mediation programs.
You also need to consider whether the defendant is legally responsible for the claim. Is the law on your side? If there is a law that applies to your case, the small claims judge must follow that law, interpreting it in a spirit of reasonableness and fairness to both parties. If the law isn't on your side, but you feel that justice is, you may get a more favorable result through voluntary mediation.
If you decide to file a small claims court case, be prepared to devote some time and effort to it. This includes preparing for the hearing, gathering evidence, meeting with witnesses, and attending the hearing in person.
You also may need to take action and spend money to enforce any judgment. While a small claims court judgment carries legal weight, it may be difficult or even impossible to enforce the judgment. Collecting a court judgment is one of the most challenging and frustrating aspects of any lawsuit. The person who is obligated to pay the judgment may not have the money to pay it, or may simply refuse to pay it. Enforcement procedures are available, but these require extra effort and also money on your part. It's possible that you will never collect anything.
In deciding whether to file a small claims case, remember that you may not appeal. By choosing small claims court to resolve your dispute, you give up the right to have a different judge re-hear the case. So if you should lose, that's the end of the case for you. If you win, the person or entity against whom you filed your claim (the defendant) may appeal the judge's ruling. In that situation, the entire dispute will be heard again, before a different judge.
Have you and the defendant tried to resolve the dispute on a friendly basis? If you haven't done so before suing, why not try? At the very least, you should ask the defendant for the legal remedy that you hope the judge will award you.
Are you able to give the other person some incentive to perform? If he or she owes you money, you might consider offering to accept less than the full amount, if it's paid right away. If you owe money, it may be worth paying a bit more than you feel you owe, just to end the dispute. If the dispute goes to court and results in a judgment against you, the amount you owe may be increased by court costs and interest, and the judgment will be noted in your credit record.
If there's no dispute about the amount you owe, but you simply can't pay the entire debt at one time, consider offering to make monthly or weekly payments until the debt is paid. (Even after the case is decided, the judge can authorize payment by weekly or monthly installments.)
Mediation is a process for resolving disputes informally. A third party —a mediator—helps the parties arrive at their own solution. Unlike a judge, a mediator doesn't issue a decision. The best quality of the mediation process is that it attempts to restore the relationship between the parties. While only some disputes can be resolved by mediation (since both parties must agree to the results), consider whether your dispute can be resolved in that way. Disputes involving neighbors and family members are particularly well suited for mediation because of the importance of the relationships between the parties.
If you decide that mediation (rather than small claims court) might resolve the dispute, ask the clerk if the small claims court offers a mediation program. If not, the clerk may know of a publicly funded program in your county. You can also locate a mediation program by looking in the business section of your telephone directory, or by calling the California Department of Consumer Affairs at (800) 952-5210. Hearing-impaired persons may call (800) 322-1700 (TDD) or (916) 322-1700 (TTY). You can also find a list of mediation programs on the Web site of the California Department of Consumer Affairs (www.dca.ca.gov).
- Small Claims Adviser—Small claims advisers provide free individual personal advisory services to small claims disputants. The law requires each county to provide a small claims advisory service. Some advisers are available only by phone, others by e_mail, while others may be visited in an office setting. Some advisory services provide recorded advice by phone. Some advisory services provide in person workshops. All small claims advisers provide information regarding the procedural rules. Some will also assist you in preparing your case. To locate your local small claims adviser, contact the local small claims clerk or look in your telephone directory. The small claims advisory services of all counties are listed in the Web sites of the Department of Consumer Affairs at www.dca.ca.gov/consumer/mediation_programs.shtml, and of the Judicial Council at www.courts.ca.gov/selfhelp-advisors.htm.
- Publications — Small claims court procedural rules are summarized and explained in a Department of Consumer Affairs publication entitled Consumer Law Sourcebook: Small Claims Court Laws & Procedures. While the Consumer Law Sourcebook is written principally for judges and small claims advisers, some disputants find it useful. Most county law libraries make reference copies available to the public. Your county law library may also have books on the subject of your claim. Materials published by the Department of Consumer Affairs can be ordered from its Consumer Information Center at (800) 952-5210, or its Policy and Publications Development Office at (866) 320-8652 or (916) 574-7378.
- Internet Resources — The internet offers countless sources of information. If you don't have access to the internet at home, visit your public library. The Judicial Council's self-help Web sites offer assistance in both English and Spanish: www.courts.ca.gov/selfhelp-smallclaims.htm (California Courts Self Help Center).
Court forms can be viewed and printed at the Judicial Council's self-help Web sites listed above.
If you are the plaintiff, reviewing the following court forms will give you some useful information:
- Information for the Small Claims Plaintiff (Form SC-100 Info), and
- Plaintiff's Claim and ORDER to Go to Small Claims Court (Form SC-100).
If you are the defendant, reviewing the following court forms is likely to provide information useful to you:
- Information for the Defendant (Form SC-100 (page 4)), and
- Defendant's Claim and ORDER to Go to Small Claims Court (Form SC-120).
The following Web sites provide access to federal and California statutes and regulations:
- Federal statutes — www.gpo.gov/fdsys/search/searchresults.action?st=collection:uscode
- California statutes — www.leginfo.ca.gov
- Federal regulations — www.regulations.gov
- California regulations — www.oal.ca.gov
The Department of Consumer Affairs provides fact sheets and information on landlord-tenant issues, auto repairs, contractor hiring, and the professions and occupations regulated by the department on its Web site at www.dca.ca.gov.
Links to Web sites designed to help persons who represent themselves in court actions are listed at http://www.publiclawlibrary.org/self-help. Links to other information resources are provided in the Web site of Consumer Reports magazine.
- Attorneys — An attorney may be able to advise and assist you before or after filing your claim. You should consult an attorney if you feel it would be cost-effective to do so, considering the size of the claim and the kinds of issues involved. You can't have the attorney represent you in court. Except in rare instances, fees charged by the attorney for private assistance are not recoverable as court costs or damages. For a list of attorney referral services, go to the Web site of the State Bar of California. If you can't afford an attorney, a legal services program might be able to help. Legal services programs for low-income persons are listed at http://lawhelpca.org/.
With certain exceptions, anyone can sue or be sued in small claims court. Generally, all parties must represent themselves.
An individual can sue another individual or a business. A business, in turn, can sue an individual or another business. However, an assignee (a person or business that sues on behalf of another, such as a collection agency) can't sue in small claims court. A federal agency may not be sued in small claims court.
To file or defend a case in small claims court, you must be (a) at least 18 years old or legally emancipated, and (b) mentally competent. A person must be represented by a Guardian ad Litem if he or she is under 18 and not legally emancipated, or has been declared mentally incompetent by a court. For a minor, the representative is ordinarily one of his or her parents. A small claims clerk or small claims adviser can explain how to have a guardian ad litem appointed.
In most situations, parties to a small claims action must represent themselves. As a general rule, attorneys or non-attorney representatives (such as debt collection agencies or insurance companies) may not represent you in small claims court. Self-representation is usually required. There are, however, several exceptions to this general rule:
If the court determines that a party is unable to properly present his or her claim or defense for any reason, the court may allow another individual to assist that party. The individual who helps you can only provide assistance—the individual’s participation in court cannot amount to legal representation, and the person can't be an attorney.
- Corporation or other legal entity — A corporation or other legal entity (that is not a natural person) can be represented by a regular employee, an officer, or a director; a partnership can be represented by a partner or regular employee of the partnership, but the representative may not be an attorney or person whose only job is to represent the party in small claims court.
- Property agent — A property agent may represent the owner of rental property if the property agent was hired principally to manage the rental of that property and not principally to represent the property owner in small claims court and the claim relates to the rental property. At the hearing, the agent should tell the judge that he or she was hired and is employed principally to manage the property. This statement may also be in a written declaration. A common interest development also may appear and participate in a small claims action through an agent.
- Sole proprietorship — In a case in which a claim can be proved or disputed by evidence of an account that constitutes a business record, and there is no other issue in the case, a sole proprietorship (such as a physician) can be represented by a regular employee who is employed for purposes other than solely representing the proprietor in small claims court actions, and who is qualified to testify to the identity and mode of preparation of the business record. In that situation, the employee must be able to testify that (1) the evidence of the account was made in the regular course of business, (2) the evidence of the account was made at or near the time of the transaction, and (3) the sources of the information about the account and its time and method of preparation are such as to indicate their trustworthiness.
For example, this exception to the general rule of self-representation might permit a dentist's bookkeeper to represent the dentist in an action to collect a patient's account. However, if the patient alleged that the dentist's services were unnecessary or performed poorly, the case would involve another issue of fact, and the dentist would need to appear at the hearing in person. As in all actions to collect debts and accounts, the plaintiff's claim form must include an itemization of all fees and charges that have been added to the original loan amount or agreed price.
In the following kinds of situations, a party need not appear in court, and may either send a representative or submit written declarations to prove his or her claim or defense. However, the representative can't be compensated, and is disqualified if he or she has appeared in small claims actions as a representative of others four or more times during the calendar year.
- Non-resident real property owner — A non-resident owner of real property located in California may defend a small claims case related to the property by submitting a declaration or sending a representative.
- Military service — A person who is on active duty in the military service outside California, or who while on active duty is transferred out of state for more than six months after the claim arose, may be represented by a non-attorney, and may submit declarations in support of his or her claim or defense. For instance, a tenant who is on active duty, and is transferred out of state for more than six months can ask a qualified person to file a small claims action on behalf of the tenant to recover a security deposit from a landlord, and to represent the tenant at the hearing.
- Jail or prison — A person who is in jail or prison may be represented by someone who isn't an attorney, and may file written declarations in support of his or her claim or defense.
- Non-resident driver involved in an in-state auto accident — Some courts will allow a non-resident driver involved in an in-state auto accident to send a representative (but never an attorney), submit evidence by declaration, and appear in court by telephone. Contact a small claims adviser in the county where you're sued to learn about the procedures used in that county.
An individual who represents a party to a small claims court action may complete and sign an Authorization to Appear (Form SC-109) — a form provided by the clerk of the small claims court or printed from the Judicial Council's Web site The representative must state that he or she is actually authorized to represent the party, and must describe the basis for that authorization, such as a letter from the represented party. If the represented party is a corporation or other legal entity or an owner of real property, the representative also must state that the representative isn't employed solely to represent the corporation or entity in small claims court. In the other situations listed above, the representative must state that the representative is acting without compensation, and hasn't appeared as a representative in small claims actions more than four times during the calendar year.
Spouses may represent each other in small claims court if they have a joint interest in the claim or defense, and the represented spouse has given his or her consent. However, one spouse may not represent the other spouse if the court decides that justice would not be served — such as where their interests are not the same and may conflict. The represented spouse need not come to court if the judge allows representation.