Before the Case
Small claims court is set-up to resolve disputes quickly with little costs. Cases are always for less than $10,000. The rules are more simple and the hearings are less formal than in other courts. You can talk to a lawyer about your small claims case, but your lawyer cannot represent you in court.
Generally, any adult, business or government agency (except the federal government) can sue or be sued in small claims court – as long as the dispute is about money:
- $10,000 or less, if the case is filed by individuals or sole proprietorships;
- $5,000 or less if the case is filed by a businesses (other than sole proprietorships) or by government agencies.
A small claims case can be filed by:
- An individual
- A married couple
- Individually owned businesses (sole proprietorships)
- Limited liability companies
- Unincorporated associations
- Government agencies (also called “public entities”)
- And others
To file or defend a case by themselves in small claims court, the person must be:
(a) at least 18 years old or legally emancipated, and
(b) mentally competent.
If a person is under 18 years old, or has been declared mentally incompetent by a court, he or she must be represented by a guardian ad litem. For someone not yet 18, the representative is usually one of his or her parents. Contact the small claims adviser for your court to find out how to have a guardian ad litem appointed.
Among those not allowed to sue in small claims court are collection agencies.
Small claims courts hear a number of types of cases in which people, businesses or government agencies have disputes about money. In California, the amounts of money are $10,000 or less if they are filed by individuals or sole proprietorships -- or $5,000 or less if filed by other types of businesses or by government agencies.
Small claims courts can also order a defendant to do something (or stop doing something) -- as long as a claim for money is part of the lawsuit. For example, if a person is suing to get back the lawn mower he or she loaned to a neighbor, the court can order the return of the mower, or payment for the mower if it is not returned as ordered.
Examples of other disputes that might be resolved in small claims court are:
- You lent money to a friend, and he or she refuses to re-pay it.
- Your store sold a person a dishwasher on credit, and he or she stopped making the payments.
- Your former landlord refuses to return the security deposit you paid.
- Your tenant caused damage to the apartment in an amount that exceeded the security deposit.
- You were cheated by the seller of a car, and want to cancel the purchase and get your down payment back.
- Someone’s careless behavior injured you or damaged your property (including an animal) causing you financial loss.
- You were injured or your property was injured by a defective product.
- You were harmed (usually financially) because a professional you hired did not use the ordinary skills of members of that profession.
- You want a neighbor to do something – or stop doing something -- that disturbs the quiet enjoyment of your home and if they will not, they should pay something for the time that they disturbed you.
In all courts, there are time limits on how long a case may be filed after the problem occurs. These time limits are set by laws called “
- In California, these time limits vary according to the type of claim and usually range from one to ten years. For example, lawsuits related to real property have fairly long time periods, while slander and libel usually have short time periods.
(See California Code of Civil Procedure, Sections 337 - 343, and California Commercial Code, Section 2725)
- Normally, once the time to file a case “runs out,” a lawsuit cannot be started in court.
Sometimes the time period starts from the date of the problem occurred – as in the case of a physical or emotional injury.
- Other times, this period starts on the date of discovery of a problem, such as discovering a defect in a manufactured product.
- In cases of contracts, the time may start on the date the contract is broken.
The following are the periods of time to file (the “statutes of limitations”) for some of the most common reasons why people go to court.
1 year – from the date of the incident:
- Libel, slander, defamation,
- False imprisonment,
- Forfeiture / penalty,
- Professional negligence of a health care provider (from the date plaintiff knows or should have known about the injury, but not longer than 3 years).
NOTE: Negligence by a health care provider requires that you give the provider a special notice in writing that you intend to sue him or her at least 90 days before you file your case. This is called a “Notice of Intent to Sue.”)
- Personal physical/emotional injury, from the date of the incident,
- Oral contracts, from the date the contract was broken.
3 years – from the date of the incident:
- Breaking a written contract, from the date of the break,
- Breaking a legal duty, from the date of the break,
- Breaking an agreement about sale of goods, from the date of the break,
- Construction defects, from date of construction, if the defect is obvious.
- Miscellaneous reasons not covered in other categories.
- Construction “defects,” from date of construction resulting in the problem if you cannot easily see the problem.
NOTE: If you filed a claim against a government agency (also called a “public agency”):
- If you received a written rejection of your claim, you have 6 months from the mailing date (postmark) of the rejection letter to file a case against the agency in small claims court.
- If you did NOT receive a rejection letter, you have 2 years from the mailing date (postmark) of the rejection letter to file a case against the agency in small claims court counted from the day the original problem occurred.
IMPORTANT: This is a complicated area of law. If you have questions – for example, if you think it is too late for a case to be filed -- contact the Small Claims Advisor for your court for more information. You may do this if you are suing or being sued.
Each county in California has a small claims court. The person or business starting the lawsuit needs to figure out which county's small claims court is the right court for their claim, then file their claim there. The rules which say where a case can be filed are called “rules of venue.”
NOTE: If a claim is filed in the wrong court, the court will dismiss the claim (unless all defendants personally appear at the hearing and agree that the claim may be heard then and there.)
Usually, the claim is filed in the court where the defendant lives or does business.
But there may be more than one “right” location, and so the person starting the claim may choose the court most convenient to him or her. For example, the claim may be filed:
- Where the damage or accident happened,
- Where the contract was signed by the person, business or government agency being sued.
- Where the person, business or government agency agreed to carry out the contract.
- If the defendant is a corporation, where the contract was made, or
There are special rules for consumers:
- who bought personal, family or household goods or services, or borrowed money to pay for them;
- who are making (or who made) payments on goods, services or loans (like a credit card) to a store, credit card company, etc. (called “retail installment contracts”); or
- who bought a vehicle that needed to be financed.
Consumers may choose to file:
- Where they live now,
- Where they lived when the contract was made,
- Where they signed the contract, or
- Where the vehicle is permanently kept.
For more help in deciding where to file a case, you can contact the Small Claims Legal Advisor in your county.
Before going to court, the people having a dispute must try to settle it themselves. In fact, the very first court form filled out by the person who starts the case says:
|4. You must ask the Defendant (in person, in writing, or by phone) to pay you before you sue. Have you done this? If no, explain why not.|
(See California Code of Civil Procedure, Section 116.320(b)(3))
A. Try to Talk It Out
If you are having a dispute with someone, try to talk about it with them. Perhaps, when the problem first came up words were said in anger, or decisions were made before all of the facts were known. It is possible that later, emotions will have cooled off or policies were made clear. It’s worth trying to resolve the dispute on a friendly basis.
- Consider giving the other person some reason to work with you. If he or she owes you money, you might offer 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. Keep in mind that 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 credit reporting agencies will note the judgment 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 you to pay the judgment in weekly or monthly payments.)
IMPORTANT: Don’t wait too long. Remember, there are laws that limit the time you have to file a case (statutes of limitations). If you think you are running out of time to file your case but believe you can still settle the problem, you can protect your right to sue by filing your claim with the court, but not serving it on the other side.
B. Try to Mediate Your Dispute
Mediation is a process for resolving disputes informally. You and the other person or business in the dispute would meet (in person or by phone) with a third person – a trained mediator – who would attempt to help you to resolve your dispute. Usually, mediation of a small claims dispute lasts between 30 minutes and two hours.
- Everyone should consider trying mediation. Mediation can really help if you have an on-going relationship with the person you have the dispute with. If you are suing a neighbor, business partner, landlord, or tenant, mediation may help you work out your problems and keep your relationship.
- If you decide that mediation might resolve the dispute, ask a court clerk if the small claims court offers a mediation program. If it does, it may be free. If not, the clerk may know of a publicly funded program in your county. You can also locate a mediation program by calling your local bar association, looking in the business section of your telephone directory, or by calling the California Department of Consumer Affairs at 1-800-952-5210. There is a list of local programs on the Department of Consumer Affairs website.
C. Write a Formal “Demand” Letter
Before going to court, send the other person a short, clear letter demanding payment. For one thing, a “demand” letter will help you arrive at a settlement in as many as one-third of all disputes. But even if you do not get a settlement, writing out your case in a formal letter will have given you a chance to practice telling your side of the story, which will help you later tell your story to the judge in a carefully organized way.
Your “demand” letter should be business-like.
- Start by reviewing the main facts of the dispute. Include dates, times, and promises made.
- Include how you calculated what is owed to you.
- Ask for exactly what you want, when you want it, and where it is to be delivered. For example, the full amount should be paid by 5:00 pm, Sept. 21, 2011, and delivered to your home address.
- Conclude by saying that you will pursue your legal options, including filing in Small Claims Court, if the demand is not met by the date you set.
Get help in writing an effective demand letter. Keep a copy of all correspondence in a file or folder where you can find it later.
If you DO settle your dispute, write down what was agreed to. Include:
- The names and addresses of the people involved,
- A brief description of the “what,” “when” and “where” of the dispute that has been resolved,
- A statement of what the person giving up a claim is getting in return,
- The date the agreement is being signed, and
- The signatures of both people.
Keep a copy of the agreement in a safe place.
Before filing a case in small claims court, it's important to decide whether going to court is the best way to solve your problem. Many counties help people resolve disputes informally through their local consumer affairs offices, or through local public or private dispute resolution or mediation programs.
- Filing a lawsuit requires time and effort. This includes preparing for the hearing, gathering evidence, meeting with witnesses, and attending the hearing in person.
- Neither you nor the other side will be compensated for your time for preparing and going to court, even if you win.
- You cannot hire an attorney to represent you during the small claims court trial hearing. However, you can hire a lawyer to help you outside of the courtroom before or after the trial. (The costs of hiring an attorney may be high.)
- If you start a small claims case and lose, you may not appeal the decision. This means that, in small claims courts, the person starting the case gives up the right to have a different judge re-hear the case. So if you should lose, that's most likely the end of the case for you.
- Even if you win in court, the person who is obligated to pay the judgment may not have the money to pay it, or may simply refuse to pay it. The court does not collect the money for you. Enforcement procedures are available, but these require extra effort and also money on your part. It's possible that you will never collect anything – or if you do collect, it may take years.
Some of the questions you might ask yourself before you file a case include:
- Is your dispute about money? Is the amount $10,000 or less?
- Have you tried to contact the other side to settle the dispute on an informal basis?
- Have you written a “demand letter” to the side person, stating exactly what you want and by when?
- Are you within the time limits set by law to file your type of case?
- Can you file the case in a court that is not too hard for you to get to?
- Do you know the full legal name of the person or business you want to sue and where to find them?
- Are you sure that the person or business you want to sue is legally responsible for the problem?
- Can you prove your case? Do you have the evidence you need to convince a judge you are in the right about your claim?
- Do you have the skills to make a convincing courtroom presentation?
- If you win, is the person or business able to pay the amount of money you believe is owed to you when you need it?
If the answer to any of these questions is “no,” you may be better off seeking other ways to solve your problem.
If the answer to all of these questions is “yes” and you decide to file a small claims court case, please read the section called
Small Claims Advisors
In California, each county's superior court has a Small Claims Advisor to help people with their small claims cases. This service is free of charge to you.
- The Small Claims Advisor cannot represent you in court nor serve as your attorney, but will help you by providing legal information you may need in order to represent yourself. The Small Claims Advisor may provide help to either side in a particular case.
- If help is needed with other types of issues, the Small Claims Advisor may be able to help you find others to contact for information, legal representation, or other kinds of assistance.
Get information about the Small Claims Advisor in the county where you live.
If you are thinking about going to small claims court, you may need more than just legal help. Please know that here are people who want to help. Sometimes it takes talking to several people before the right person is found, so ask everyone what he or she recommends. Don’t give up!
Some other resources or options to consider include:
- Go to a library, buy a self-help book, or look on the internet. Find your nearest California Public Law Library in your county.
- Consumer issues: the Better Business Bureau, the Bureau of Automotive Repair, and the California Department of Consumer Affairs.
- Senior services: Elder abuse prevention programs, family caregiver services, etc.
- Mexican citizens living in Northern California can now get free legal help 24 hours a day through a hot line launched by the Bay Area's Mexican Consulates: 1-800-668-1005.