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. You must then 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 made orally or in writing, but it's a good idea to do it both ways. Always keep copies of any letters and other written communications. It's wise to send written communications by mail, and to 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 you want to request. The judge will ask you to prove that you're entitled to the amount that you claim. That means that you can only receive a judgment for an amount you can prove. You can prove your claim by almost any kind of evidence: a written contract, warranty, receipt, canceled check, letter, professional estimate of damages, photographs, drawings, your own statements, and the statements of witnesses who come to court with you.
Small claims courts have an upper limit on the amount of money that a party can claim. You can sue for up to $10,000, if you are an individual or a sole proprietor. Corporations and other entities are limited to $5,000. In addition, a party (individuals or corporations) can file no more than two claims exceeding $2,500 in any court throughout the State of California during a calendar year. If you do exceed the two cases over $2,500 per calendar year limit, the court may award you only a maximum of $2,500 in each subsequent case even if your proven damages exceed $2,500. This limit does not apply to a city, county, city and county, school district, county office of education, community college district, local district, or any other local public entity. You are not permitted to divide a claim into two or more claims (called claim splitting) in order to fall within the monetary limits.
If your claim exceeds $2,500, you'll be asked to check the box on your claim form (Form SC-100) that states that you have not filed more than two actions for more than $2,500 during the calendar year. If you are a natural person (an individual), and therefore can ask for up to $7,500, you still may not file more than two small claims court actions for more than $2,500 during the calendar year.
If your claim is over the small claims monetary limit, you may file a case in the regular superior court, where you can either represent yourself or hire an attorney to represent you. Instead of doing that, you may choose to reduce the amount of your claim and waive (give up) the rest of the claim in order to stay within the small claims court's monetary limit on claims. Before reducing your claim, discuss your plans with a small claims adviser or an attorney. Once the dispute is heard and decided by the small claims court, your right to collect the amount that you waive will be lost forever.
It's always wise to ask for the full amount that you can prove, because if the defendant doesn't appear in court, the judgment that the court issues in your case will be limited to the amount that you have both requested and 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. However, there are two exceptions to the jurisdictional amount of $2,500: (1) If you are a natural person suing a guarantor that charges a fee for its guarantor or surety services, the maximum amount is $6,500. (2) If the person suing is not a natural person, and the defendant guarantor charges a fee for its services, or is the Registrar of the Contractors State License Board because the plaintiff is suing on a contractor's bond, the maximum amount of the claims is $4,000. In that situation, be sure to name both the contractor and the guarantor as defendants, and prepare to prove a violation of the contractors licensing laws. (See Business and Professions Code beginning with section 7101, and the Contractors State License Board)
Where Do You File Your Case?
It's important to file your case in a proper small claims court. In large counties, the county is divided into areas of court location. In those counties, you also must file your case within the proper area of court location within that county.
To determine what court or courts may be proper in your situation, it's wise to consult a small claims adviser. You will save yourself and the other party a lot of trouble and possible cost if you carefully choose the court in which you file your claim.
As a general rule, a case must be filed in the county (and area of court location) in which the defendant resides. This general rule promotes fairness, since it's usually easier for a defendant to defend a case if it's filed in the locality where the defendant resides.
However, there are many exceptions to this general rule. (See, for instance, "Automobile accidents" in the next column.) If you need help deciding in what county or area of court location to file, contact a small claims adviser.
When you file your case, you must state on your claim form (Form SC-100) why the court in which you filed your claim is a proper court. Especially in cases that have been filed against a defendant who lives outside the county (or outside the area of court location where the court is located), the judge will carefully look into and decide if the court is a proper one for that case.
If the judge decides that the case was not filed in a proper county that is, that the venue chosen by the plaintiff isn't proper the judge must dismiss the case without prejudice unless all defendants are present in court and agree that the case may be heard at that time. If the case was filed in a proper county, but in the wrong court location within that county, the case either will be transferred to a proper court location within that county, or will be dismissed without prejudice.
The following are some exceptions to the general rule that a case must be filed and heard in a court located within the county (and area of court location, if applicable) where the defendant resides:
- Automobile accidents - The claim may be heard either (a) within the county and the area of court location in which the accident occurred, or (b) within the county and the area of court location in which the defendant resides. (In this situation, as with many others, there may be more than one court in which an action can properly be filed.)
- Contract - The claim may be heard in the county or area of court location in which the contract was entered into, where the contract was to be performed by the defendant, unless the claim arises from a consumer purchase.
- Consumer purchase (claim by seller) - A claim to enforce a debt arising from a consumer purchase can be filed only in the county or area of court location (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, or (4) where 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 with goods, consumer services, or consumer credit. An action 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 a situation where a buyer responds by a telephone call or electronic transmission).
The exceptions to the general rule that requires filing a case in the county and area of court location where the defendant resides are somewhat complex and difficult to understand. If you intend to file a claim against a defendant outside the county and area of court location where the defendant resides, you should consult with a local small claims adviser to determine if your case falls within an exception to the general rule.
Only the larger counties are subdivided into areas of court location. If a county is not subdivided into two or more areas of court location, an action that can properly be filed in that county can be filed in any small claims court located within the county. A small claims adviser can also show you a map that shows the areas of court location in those counties (such as Los Angeles County) in which there is more than one area of court location within the county.
If there is more than one county or area of court location where your claim can be properly filed, you can select the court that is most convenient for you and your witnesses. If you file in a county or area of court location in which the defendant does not reside, you must give the defendant more advance notice of the hearing (20 days instead of 15 days), and it will take correspondingly longer for your case to be heard.
Special rules govern the place of filing 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, Los Angeles, or San Diego. Also, a defendant sued by a State agency can have the case transferred to the county in which the Attorney General has an office that is closest to the residence of the defendant.
If the court that you select holds evening or Saturday hearings, you can request an evening or Saturday hearing when you file your case. Ask the court clerk for the local court rules.
How Quickly Must You File Your Case?
Most claims must be filed within a set time limit, called a statute of limitations. The purpose of the statute of limitations is to prevent the filing of cases that are too old. Memories fade, witnesses die or move away, and once-clear details tend to blur. As a general rule, you should file your case as soon as reasonably possible. Statutes of limitations are generally not less than one year. 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 there is a good legal justification for extending the time. If you are thinking about filing an older claim, you should consult a small claims adviser to see if there are facts or circumstances that might permit or require the court to extend the time for filing.
Here are some examples of various statutes of limitations:
- Personal injury - Two years from the date of the injury. If the injury is not immediately discovered, it is two years from the date it is discovered or should have been discovered. A minor has two years from his or her 18th 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 send a written claim to the entity, called a "Government claim." The claim is legally required to contain certain pieces of information. Government Code section 910 lists what types of information are required to be in the claim. Some governmental agencies may have a fillable governmental claim form available for use. Please check with the governmental agency in question to see if a governmental claim form is available. If you do not file the government claim first, the small claims court must reject or dismiss the action. If the government claim is against the State of California, it must be sent to the Victim Compensation and Government Claims Board (VCGCB); follow the instructions on its website at https://www.dgs.ca.gov/ORIM/Services/Page-Content/Office-of-Risk-and-Insurance-Management-Services-List-Folder/File-a-Government-Claim. A government claim for personal injury or personal property damage must be sent to the government entity within six months of the incident that caused the damage. A government claim for breach of contract or injury to real property must be sent within one year of the incident that caused the damage. If the entity rejects the claim, you must file a court action within six months of the mailing or personal service of the rejection notice. If you do not file within that time frame, you may lose your right to sue. An agency has 45 days to make a decision on the government claim. If no decision is made after 45 days, the claimant should treat the non-response as a rejection, and file their suit immediately.
Statutes of limitations, and the court rules that interpret and apply them, 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 be extended. Or you might assume that a contract was an oral contract, which has a limitation of two years, while it may be interpreted as 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. Better yet, you should check with a small claims adviser before you file.
What Forms Do You Need to File?
You can obtain the forms for filing your suit by visiting or writing any small claims court or by clicking on the Judicial Council's self-help Web site at www.courtinfo.ca.gov. While completing these forms is usually easy, it's helpful to read Information for the Small Claims Plaintiff (Form SC-100- INFO). You will receive this when you go to small claims court to file your claim. You can also view it, and other court forms on the Judicial Council's self-help Web sites. You may complete most of these forms on your computer. Some courts will allow you to file the forms by fax or via the Internet.
You may find a specific form by going to the Judicial Council Web site, where you will find a link to all the Judicial Council forms. The forms are divided by groups, and you can view all Small Claims forms by selecting this group.
Another form that a small claims court plaintiff may need is the Fictitious Business Name [declaration] (Form SC-103). Businesses that use fictitious business names-for example, "Joe Jones doing business as Joe's Garage"-must sign and file this form with the court. In this written declaration, a representative of the business (such as the owner) is required to declare under oath that the business that is suing has complied with California's fictitious business name registration laws. A business must be in compliance with California's business registration laws in order to use the small claims court. If the business is not in compliance, the needed steps must be taken before an action is filed.
In selecting a date for the hearing (or approving a date selected by the small claims court clerk), be sure to allow enough time to locate the defendant and arrange for serving the defendant with a copy of your claim. (It may be a good idea to pick a court date of at least six weeks out for service of the Form SC-100.) An adult other than you must do the service. Also, after the service is completed, make sure that the Proof of Service (Form SC-104) is completed by the person who served the papers. In addition, the proof of service must be received and filed with the court no later than five days before the hearing. This form must be completed to state the exact date, time, and place of service of process and other information. It is signed by the person who delivered a copy of your claim form (Form SC-100) to the defendant. If there is more than one defendant, each defendant must be served.
You must pay the small claims court a filing fee when you file your case. If you can't afford this expense, you may ask the court to waive (forgive) those fees. You can request a court waiver by completing and filing a request to Waive Court Fees (Form FW-001). For information on the standards that will used by the court in approving or denying your application, ask the court clerk for the Information Sheet on Waiver of Court Fees and Costs (Form FW-001-INFO) or visit the Judicial Council's self-help website and print your own copy.
How Do You Name the Defendant?
Try to name the defendant or defendants correctly when you prepare your claim. If it's possible that you may need to use the court process to enforce a judgment in your favor, it is important that the defendant is named correctly. Otherwise your judgment may be difficult to enforce. 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. You also can amend the judgment at any time to show the judgment creditor's correct name.
If you're not sure which of several possible defendants is responsible for your claim, name each person you believe is liable. The court will decide whether the people you named are proper defendants and legally responsible.
Here are some examples of ways to name a defendant:
- An individual - Write the first name, middle initial (if known), and last name. Example: "John A. Smith." If an individual has more than one name, list all of them (separated by the words "also known as" or "aka").
- A business owned by an individual - Write the names of both the owner and the business. Example: "John A. Smith, doing business as Smith Carpeting." If you win your case, you can enforce your court judgment against assets (such as a checking account balance) in the names of either John A. Smith or Smith Carpeting. Note: Some banks may not honor a judgment unless the name on the judgment matches exactly the name on the bank account. In this situation, the plaintiff should request the court to amend the name of the defendant to reflect the name on the account. Obviously, this does not apply if the plaintiff attempts to ask the court to completely change the name of the defendant as a way to add someone else on the judgment.
- A business owned by two or more individuals - Write the names of both the business and the owner on each defendant line of Form SC-100. Example: If there are two owners for Suburban Dry Cleaning, the plaintiff would list each respective owner in a different defendant name slot in Form SC-100. Defendant Name slot #1: John A. Smith, Doing Business As Suburban Dry Cleaning. Defendant Name slot #2: Mary B. Smith, Doing Business As Suburban Dry Cleaning.
- A corporation or limited liability company - Write the exact name of the corporation or limited liability company, as you know it, on the claim form. You need not name the individual owners of the corporation or limited liability company. However, you must include either an Inc. (for corporations), LLC (for limited liability companies), LLP (limited liability partnerships), or LP (limited partnerships) at the end of the name of the business entity. Example: "Fourth Dimension Graphics, Inc." If a corporation operates through a fictitious business name or a subsidiary, you must name the name of the corporation and not necessarily the fictitious business name or subsidiary. Example: Middle Easter Quality Petrol Inc. doing business under the fictitious business name of Fast Gas would be listed simply as Middle Easter Quality Petrol Inc. However, you may have to prove at trial the relationship between the subsidiary or the fictitious business name and the listed corporation.
If you would like to delete the names of one or more defendants from your claim, you can use the dismissal form that you received with your claim or a request for dismissal (Form CIV-110). Be sure to indicate that you are dismissing the case only against certain named defendants, and that you are not dismissing the entire case. As a courtesy, you should inform the dismissed defendants that they need not appear in court by providing them with a copy of the filed dismissal.
- A vehicle accident defendant - If you're suing to recover the losses you sustain 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."
If you would like to amend your claim, and it hasn't yet been served, it is only necessary that you (a) prepare a new claim form (Form SC-100), (b) file the new claim form, and (c) arrange for someone to serve it on the defendant. When you go to the small claims court, be sure to bring your copy of the original claim form (Form SC-100). If any of the defendants have been served with the original claim, you'll first need to submit a letter to the small claims court requesting the court's permission to prepare and serve an amended claim.
If you would like to delete the names of one or more defendants from your claim, you can use the dismissal form that you received with your claim, or a request for dismissal (Form CIV-110). Be sure to indicate that you're dismissing the case only against certain named defendants, and that you're not dismissing the entire case. As a courtesy, you should inform the dismissed defendants that they need not appear in court.
How Do You Notify the Defendant of Your Claim?
Your claim form (Form SC-100), when it is completed by you and issued by the small claims clerk, informs the defendant of the amount of your claim, the basis for the claim, and the date, time, and place of the hearing.
After you have filed your claim and obtained a hearing date from the clerk, you then need to arrange for someone to give each defendant a true copy of the same claim form (Form SC-100) that was issued in your case. Delivering a copy of the claim form to the defendant is called ser vice of process. It must be done before your case can be heard, and it must be done by someone other than you.
Be sure to allow enough time for service of process. If possible, give yourself at least six weeks for the process of service (i.e., get a court date at least six weeks out). Someone must give each defendant a true copy of the Plaintiff's Claim Form (Form SC-100) at least 15 days before the hearing date if the defendant lives in the county in which the claim is filed, or at least 20 days before the hearing date if the defendant lives outside the county in which the claim is filed. If the service was substituted service, add 10 days to each of the two time requirements listed above (substituted service will be covered later on in more detail).
It is your responsibility to make sure that each defendant is properly notified about the lawsuit in this way, and to pay the fees and costs of giving this notice. As a courtesy, try to give the defendant (or defendants) more advance notice than is legally required.
It's important to select a capable adult person to serve your claim and complete the Proof of Service (Small Claims) (Form SC-104). If the judge is not convinced that the defendant was served, you may not be able to obtain a judgment in the event the defendant does not appear. If your server charged a fee for service and you paid it, make sure that the fee is mentioned in the Form SC-104. If there is no service fee listed in the Form SC-104, you may not receive your service costs in your judgment even though you paid a server.
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 non-resident defendant who owns real property in California - if the defendant has no agent for service of process and the claim relates to that property. (The non-resident defendant may send a representative or submit an affidavit to defend against the claim.)
- A non-resident defendant who owned or operated a motor vehicle involved in an accident on a California highway - if service of process is made on both the defendant and the Department of Motor Vehicles. Some courts allow the non-resident driver to send a representative (but not an attorney), or submit an affidavit or declaration explaining that person's side of the case, or appear at the hearing by telephone. To determine the court's policy and practice, contact a small claims adviser in the county where the suit has been filed.
A representative who appears in small claims court on behalf of a defendant should bring to the hearing a completed and signed Authorization to Appear on Behalf of a Party (Form SC-109).
Since out-of-state corporations and partnerships that operate in California usually designate a California agent for service of process (because they are legally required to do so), you may be able to meet the in- state service requirement by serving the corporation's agent for service of process. You can obtain the name of an agent for service of process of a corporation or other entity that has registered with the California Secretary of State by calling (916) 653-6814 or (916) 657-5448 or visiting the Secretary of State's Web site at www.ss.ca.gov.
You can have your claim form (Form SC-100) served in the following ways:
- Certified mail by court clerk - The court clerk may serve the claim form on the defendant by certified mail and restricted delivery, and charge you a fee of $10 for each defendant. The court clerk receives a return receipt indicating that the person identified by you for service signed for the certified mail. Within 10-15 days after the clerk mails the claim form, you should call the small claims clerk to determine whether 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 your claim form. In that event, a new hearing date will need to be set.
- Personal ser vice - A process server, or someone other than yourself who is 18 years or older and not a party to the lawsuit, may give a copy of the claim form (Form SC-100) that was issued by the court in your case to the defendant who is being served. Most plaintiffs use a professional process server, or the sheriff where available, to serve their claim on the defendant. However, some sheriffs will only serve for those plaintiffs who have had their filing fees waived by the court. While that is expensive (as much as $30 or more for each defendant), you are entitled to reimbursement from the defendant of the reasonable cost of service of process if you win the case. If you decide not to use a professional process server or the sheriff, and have an adult relative or friend serve the papers, make sure that the papers are properly served on the named defendant. It is important that your friend or relative properly complete the Proof of Service (SC-104). It's not enough merely to drop the papers at the doorstep or serve a member of the defendant's household. Service of process is ordinarily accomplished by delivering a copy of the claim form to the following person:
In the case of an individual defendant-To the defendant in person, or to someone that the defendant has specifically authorized to receive service of process.
In the case of a partnership-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.
In the case of a corporation-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 (or manager in charge of a location, such as a chain grocery store), (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.
In the case of a minor-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.
- Substituted service - "Substituted service" means that service of process is effected without the necessity of personal delivery to the defendant. Substituted service can be the most effective, and also the least expensive, method of service in small claims court. To help assure that a defendant receives actual notice of the papers that are served, several prerequisites for effective service apply. If you plan to use this method of service, first read What Is "Proof of Service?" (Form SC-104B).
Basic rules-To serve a defendant in your case by substituted service, the process server must leave a copy of the claim form at the defendant's home or usual place of business. It must be left in the presence of a competent member of the defendant's household who is 18 years or older, or with the person in charge of the defendant's place of business during normal office hours.
The process server must tell the person who receives the papers what the papers are for. Copies also must be mailed by first class mail to the defendant at the place where the papers were left. Substituted service is considered to be completed on the tenth day after such mailing.
Special time lines-If you intend to use substituted service, the hearing date must be set very far in advance. That's because the delivery and mailing of the court papers must take place an extra 10 days before the hearing date. If the defendant resides or has its principal place of business inside the county in which the case is filed, the delivery and mailing must take place no less than 25 days before the hearing date (standard 15 days + 10 days for substituted service = 25 days total). But if the defendant resides or has its place of business outside the county, the delivery and mailing must take place no less than 30 days before the hearing date (standard 20 days + 10 days for substituted service = 30 days total).
Special proof of service form-The person who serves the plaintiff's claim by substituted service must complete and sign a special form of proof of service entitled Proof of Mailing (Substituted Service) (Form SC-104A). This completed form must be filed with the small claims court at least five days before the hearing.
- Service on non-resident motorist - A process server may serve a non-resident motorist involved in an in-state accident by first serving the California Department of Motor Vehicles (DMV), 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 small claims clerk or small claims adviser before serving a non- resident motorist outside California.
No matter which type of service you use, service must be completed within explicit time limits before the hearing. If you don't serve the defendant within these explicit time limits, the defendant may ask the court for a postponement of the hearing and, in most cases, the hearing date will be changed. In counting the days, don't count the day in which service was completed, but do count the date of the hearing. Remember too that a completed and signed Proof of Service (Small Claims) (Form SC-104), showing that service of process was accomplished within these time limits, must be filed with the small claims court at least five days before the hearing date. For more information, ask the court clerk for a copy of What is "Proof of Service?" (Form SC-104B). Like all court forms, you can also read and print this by visiting the Judicial Council's self-help Web site at www.courtinfo.ca.gov.
Locating the Other Party
You need the defendant's address for several reasons. You may want to contact the other party to attempt to settle the case before filing the action and also to communicate your pre-filing demand. Then, after you file your case, you'll need an address to give to the process server to serve your claim form on the defendant and to give to the court in order for it to serve further notices. If you win your case, you'll need an address where you can send a letter requesting payment. Here are several important sources of information for finding out where the other party lives or works.
Telephone and City Directories
The most obvious source of addresses, and one often overlooked, is the telephone directory. City directories are also excellent sources of information. For defendants living outside your area, try www.yellowpages.com or other Internet telephone directories (see page 20). If the only information you have concerning the other party is a telephone number, and the number is one that is listed in the telephone directory, you may use reverse telephone directories in your public library or online. In addition, directory assistance offers a reverse directory.
U.S. Postal Service Records
The regulations of the U.S. Postal Service (at 39 C.F.R. section 265.6(d)(1),(5)) provide that the Postal Service will give you the new address of someone who has filed a change of address order (PS Form 3575). You can obtain this information if you need the new address in order to have service of process delivered on that person, and you submit a completed and signed Request for Change of Address or Boxholder Information Needed for Service of Legal Process. The request form can be obtained from your local post office or the U.S. Postal Service's Web site at www.usps.gov. The regulations of the U.S. Postal Service (at 39 C.F.R. section 265.6(d)(4)) also provide that the Postal Service will give you the name and street address given by an applicant for a Postal Services mailbox in the Service's application form (PS Form 1093). As with change of address information, you can obtain that information if you need it for the service of process on the applicant for the Postal Service mailbox, and you submit a request form-the same form used for change of address information.
The request form requires you to provide the Postal Service with certain information about the lawsuit, including the names of the parties, the court in which the case will be heard, the docket number of the case (if already filed), and the capacity in which the Postal Service's customer will be served (e.g., as a party or witness). If you are an individual person representing yourself, you need not answer question 5 (which asks for the law that authorizes you to serve court papers). If a corporation is suing, the law that authorizes service must be stated.
You must mail or deliver the completed request form to the correct post office (never a post office franchisee) accompanied by a self-addressed return envelope with postage fully prepaid. No fee is required. While the U.S. Postal Service reserves the right not to disclose the address of an individual for the protection of the individual's personal safety, you probably will receive the requested information in due course. Since the Postal Service retains forwarding address orders for only 18 months, the Postal Service may be unable to respond to a request for change of address information made after that time.
The request form that you will sign requires you to certify that the information that you request is needed and will be used solely for service of legal process in conjunction with an actual or prospective lawsuit. For that reason, it's essential that the information that you receive be used for that and no other purpose. A violation can result in substantial criminal penalties.
Secretary of State Records
The Secretary of State's website www.ss.ca.gov includes records of general partnerships, limited partnerships, limited liability companies, and limited corporations. The Secretary of State also maintains a record of the names and addresses of the officers of corporations and their agents for service of process, any of whom can be served with the claim in a small claims action. For instructions on how to obtain this information, call (916) 653-6814 or (916) 657-5448 (recorded message). You can download instructions and an order form from the Secretary of State's website at www.ss.ca.gov. For an extra charge, the Secretary of State will fax the requested information to you.
It is possible the Secretary of State may not have the information for the corporation's agent for service because either the corporation did not list an agent or did not register with the Secretary of State. If you are unable to find the agent for service of a corporation on the Secretary of State website, you would need to go to the Secretary of State's office and ask them to do a search for you. If the Secretary of State's office is unable to find the agent after the search, they will issue a certificate of non-filing. It is necessary that you file your complaint with that certificate of non-filing with the court. In addition, you must ask the court for permission to serve the corporation through the Secretary of State. Please verify with the Secretary of State's office as to any fees charged for receiving the complaint. You should also verify with your local small claims advisors as to the required forms necessary to ask for court authorization to serve the Secretary of State.
Also, corporations with a "forfeited" status are not considered to be registered with the Secretary of State for the purpose of small claims service. However, corporations with a "suspended" status are considered to be registered with the Secretary of State for the purpose of small claims service.
Department of Motor Vehicles Records
The Department of Motor Vehicles (DMV ) will not release residential addresses to litigants and process servers.
Some situations in which the DMV will release residential addresses are:
- To courts and other governmental entities - However, courts will not obtain the residential addresses for litigants.
- To law enforcement agencies - Many law enforcement agencies will request the residential addresses of motorists or vehicle owners for use in preparing accident reports.
- To an attorney - The attorney must state under penalty of perjury that the residential address of a driver or registered owner is necessary to represent a client in a lawsuit involving the use of a motor vehicle.
- To an insurance company - An insurance company may obtain the address of a motorist or vehicle owner who was involved in an accident with the insured, or if the motorist or vehicle owner signed a waiver.
- To a financial institution - A financial institution must have obtained a written waiver from the individual driver or vehicle owner whose residential address is requested.
- To a vehicle dealer - A vehicle dealer may obtain the residential address of a motorist for the purpose of completing registration transactions or documents.
- To a vehicle manufacturer - A vehicle manufacturer may obtain the residential address of a motorist for the purpose of safety, warranty, emission, or product recall if the manufacturer offers to make and makes any changes at no cost to the vehicle owner.
- To a researcher - A person who has provided assurance that the residential address will be used only for statistical research or reporting purposes, and verifies that no person will be contacted by mail or otherwise at the residential address.
- To a lien sale - A person conducting a lien sale may obtain the residential addresses for the purpose of notifying the registered and legal owners and all persons who claim an interest in a vehicle of an impending lien sale or intent to dispose of the vehicle.
County Business Records
If the person you're seeking owns real property, you can search the tax rolls of the county assessor's office. The tax rolls list the names and addresses of property owners in the county by both the owner's name and the address of the property. The county registrar or recorder maintains a listing of property owners by name and location of the property owned.
The county clerk 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' names (called a "fictitious business name"). Check the computer listing of the business to obtain the owner's name and certificate number, and ask the clerk to assist you in finding the certificate in the files. The certificate contains the owner's name and address. In some counties you can obtain this information by mail. Check with the clerk of your county to determine availability, cost, and the procedure to follow. You can find the address and phone number of the county clerk's office for your county in the Government Pages of your phone book or online. It's usually listed in the county section under the heading "Assessor-County Clerk- Recorder" or "County Clerk." The records of the county assessor and county recorder also may include that information.
City Business Records
The tax and permit division of the office of the city clerk maintains a list of the names and addresses of most businesses that are licensed to do business in a city. You can find the address and phone number of the city clerk's office in the government pages of your telephone book. It's usually listed in the city section under the heading "clerk." Many cities now have Web sites that list names and addresses of persons licensed to do business in the city.
The Internet can be used to locate an individual or business. The major Internet browsers have search capabilities that can be productive if you know an individual's correct name. Reverse directories also now exist online. Most regulatory agencies' websites have directories of their licensees.
While some website addresses are given in this handbook, Internet resources change constantly. Some are added and some are deleted almost every day. Therefore, it also may be helpful to identify newly available Internet resources. Following are potentially useful resources. No endorsements or recommendations should be implied. Most of the services are free.
Telephone numbers and addresses
Business telephone directories
Corporate and business information
Public records and reports (charges imposed)