America’s fascination with all things legal begins at the lowest level of the civil courts in the small claims division. This is the arena where individual Davids and Goliaths meet on equal ground and neither one has the upper hand.
The rules for small claims are basic: Disputes are limited to a maximum of $5,000, there is no jury, and individuals are not represented by lawyers.
In California, the small claims process is designed to be very easy because the courts want this to be the “self help” court. If you have a claim against someone for a breach of contract, a personal injury, a landlord/tenant dispute, or a bounced check, this is the place.
To file a complaint you need to have a current address of the defendant and the filing fee of $22. The actual complaint, which you get at the court clerk’s office, states why you think the defendant owes you money. In general, it is something as simple as: “The defendant borrowed $4,000 from me and hasn’t paid it back.”
The form is one simple page where the plaintiff lists their address, that of the defendant, and the claim. A defendant must be sued in the correct venue, which means the district in which they reside, or where the contract was into. This is usually a defense used only by attorneys when you sue them.
After the form is completed and filed with the clerk, a trial date is set, and the defendant must be served with a copy of the summons and complaint. Serving the complaint means the defendant must be given a copy of the lawsuit against them. The defendant can be served by just about anyone but the plaintiff. The reason is that the courts don’t want plaintiffs doing “trashcan” service, which is when the complaint goes into the trash and the proof of service is completed as if the defendant was served.
Once the defendant has been served, a “Proof of Service” must be filed with the court. This form tells the judge the defendant was served, who served them and when. This is a very important document and many a small claims case is thrown out of court when it is not filed.
The Los Angeles County Sheriff’s Department will perform Service of Process for a fee, and if the plaintiff is trying to intimidate the defendant, there is little in life more intimidating that seeing a sheriff at your front door at 6:30 a.m.
On the day of trial, the plaintiff and the defendant will appear at court and usually will be asked to go out to the hallway to show each other all the evidence they have. It is also a time when the parties can possibly resolve the case.
If they can’t and a trial is needed, then they will be sworn to tell the truth by the court clerk and they will each have an opportunity to prove their case.
The plaintiff goes first. Their job is to prove all the elements of their case with the help of documents and testimony of witnesses. The documents needed for trial are anything that proves or disproves an element of your case. Documents need to have a foundation laid for their admission by the judge as evidence. What that means is that a document must be authenticated. In general if you answer the who, what, when, why, where, and how in a document, it is authenticated.
Once you have all your documents in evidence, and you have described what happened, if you have witnesses, the defendant will have the opportunity to cross examine them. This is where most people try to be Perry Mason and blow their case.
A good judge will keep strict control of the proceedings and not allow useless questions. They just want to know what happened. They don’t need to know all the drama and history between the plaintiff and the defendant. They want the facts quickly and in some sort of logical order.
The basic rule of dealing with small claims judges is: “Be quick, Be accurate, Be gone.” Most plaintiffs will have won or lost their case in 10 minutes with the judge. A good judge can see through smoke screens of lies, deception and trickery.
If the plaintiff won the case, there is an automatic stay put on the enforcement of the judgment. This means the defendant does not have to pay the plaintiff for 20 days while they decide if they want to continue to fight or just pay the judgment. Once the stay is over, the plaintiff can proceed with trying to collect. This is usually harder than it should be, since the defendant is not going to just write a check for the amount of the judgment.
If the defendant lost and wants a retrial, they can ask for a trial de novo, which means a new trial, in superior court and the small claims case is reheard from the beginning.
The collection process is difficult and very picky. Once a judgment is issued, the plaintiff can get what is called a Writ of Attachment which allows them to have checking accounts garnished, wages taken, property can have a lien put on it, and assets can be sold. If you can find the assets, they have a tendency to disappear after a judgment. If you can’t find the assets there is a process called a Judgment Debtor’s Examination, which can be used to find out where a debtor is hiding their money. But be warned, a debtor who is hiding money, is not likely to tell the truth at the Debtor’s Examination.
A plaintiff who has a judgment should consider finding an attorney for the collection work. There are attorneys who will take the collection process on contingency since they now have something to work with. Expect to pay between 25-33 percent of the judgment to an attorney or collection agent. (David Pisarra is a partner is the Santa Monica law firm of Pisarra & Grist. He 310/664-9969 or by email at)
Originally published in the Santa Monica Daily Press print edition on February 24, 2003. Read the original PDF.