Using the Small Claims Court
A guide for Plaintiffs & Defendants
By Lance Casey of Cal-State Financial
Introduction
Many disputes that you haven't been able to resolve by other means can be decided in small claims court. Some people think that going to court is difficult or frightening, but it doesn't need to be.
This guide is designed to help anyone who is suing or being sued in small claims court or who is deciding whether or not to file a small claims court case. This guide answers the questions people frequently ask, and it describes the procedures that are used in most small claims courts.
Your case may be unique, or your local court may have procedures that differ somewhat from those described in this guide. Therefore, check with the small claims court clerk or your local small claims advisor before you file your claim. Get advice as soon as possible so that you'll be well prepared at your small claims hearing.
Small claims clerks can answer many kinds of questions and provide the forms you need. However, they are prohibited by law from giving legal advice. Most counties also provide small claims advisors, who can:
· Explain small claims procedures.
· Help you prepare your claim or defense.
· Tell you how to enforce your judgment.
· Help you arrange for payment by installments.
· Answer many other kinds of questions.
Small claims advisors can help both plaintiffs and defendants. Their assistance is provided at no charge. For more information about
What Is Small Claims Court?
The small claims court is a special court in which disputes are resolved inexpensively and quickly. The rules are simple. The hearing is informal. Attorneys are not allowed. The person who files the lawsuit is the plaintiff, and the person being sued is the defendant.
The claims are limited to disputes up to $7,500. However, a claimant can't file more than two small claims court actions for more than $2,500 anywhere in this state during any calendar year. For example, if you file a claim for $3,000 in February of 2001, and another claim for $4,000 in March of 2001, you can't file another claim for more than $2,500 in any small claims court until January 1, 2002. However, you can still file as many claims as you wish for $2,500 or less.
The filing fee is only $20. It is paid by the plaintiff to the clerk of the small claims court. (Multiple filers - claimants who have filed 13 or more claims within the previous 12 months - pay $35 per claim.)
Since the limits on the claim and the filing fees are subject to change by legislative action, you should check with your local court or small claims advisor or small claims clerk to determine the correct filing fees and the current limits on claims.
Small claims courts can order a defendant to do something, as long as a claim for money is also part of the suit. The court can cancel a contract. The court can order your neighbor to pay you for your lawn mower or to return it promptly. 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 fender and refuses to pay for repairs.
· Your new TV will not work, and the store refuses to fix 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 lent money to a friend, and he or she refuses to repay it.
You don't need to be a
In most small claims courts, cases are heard within 30-60 days after filing of the plaintiff's claim. However, cases against defendants who live outside the county are heard within 60-70 days after the filing of the plaintiff's claim.
Is Small Claims Court Your Best Option?
Before filing a small claims case, it's important to decide whether small claims court is the best place 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 programs.
You 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 will 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 on your side, you may get more favorable results 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.
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. 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 or may simply refuse to pay. Enforcement procedures are available, but these require extra effort and money on your part.
In deciding whether to file a small claims case, remember that you can't appeal. By choosing the small claims court to resolve the dispute, a plaintiff gives up the right to have another court review the small claims judge's decision. So if you should lose, that's probably the end of the case for you. However, the person or entity you sue (the defendant) may appeal the judge's ruling to the superior court, where the entire case will be heard again.
Have You Tried to Settle the Dispute Yourself?
Have you and the defendant tried to resolve the dispute on a friendly basis? If you haven't done so before filing suit, why not try? At the very least, you should ask the defendant for the legal remedy that you hope the judge will award you before you file your small claims court case.
Are you able to give the other person some added incentive to perform? If he or she owes you money, you might consider offering to accept less than the full amount, if it is paid now. 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 a court hearing and results in a judgment against you, the amount that 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 you to pay the judgment by weekly or monthly installment payments.)
Have You Considered Mediation?
Mediation is a procedure 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 beauty 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 that way. Disputes involving neighbors and family members are particularly well suited for mediation because 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. In
Where Can You Obtain More Information and Advice?
· Small Claims Advisor - A small claims advisor gives free advice to small claims disputants. The law requires each county to provide a small claims advisory service. Some advisors are available only by phone, while others may be visited in an office setting. Some advisory services provide recorded advice by phone. Small claims advisors provide information regarding the procedural rules, and may assist you in preparing your case. The web site for
· Publications - Small claims court procedural rules and basic consumer laws are summarized in a publication entitled Consumer Law Sourcebook for Small Claims Court Judicial Officers. While the three-volume Sourcebook is written for judges and small claims advisors, 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.
· Internet - The Internet offers many sources of information. If you don't have access to the Internet at home, visit your public library. The Department of Consumer Affairs offers a variety of fact sheets and information on landlord-tenant issues, auto repairs, contractor hiring, and the professions and occupations regulated by the department at www.dca.ca.gov. The Judicial Council offers advice on the small claims process and downloadable court forms at www.courtinfo.ca.gov. The
· Attorneys - An attorney may be able to advise and assist you in a complex case. 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. The attorney should be familiar with the Consumer Law Sourcebook for Small Claims Court Judicial Officers. You can't have the attorney represent you in court. Except in rare instances, attorney consultation fees and fees charged for other private assistance will not be recovered as costs.
Who Can File or Defend a Claim?
With certain exceptions, anyone can sue or be sued in small claims court. Generally, all parties must represent themselves. A person or an entity (for example, a corporation) that files a small claims action is called the plaintiff. The party who is sued is called the defendant.
An individual can sue another individual, or even a business, but may not file a claim against a federal agency. Businesses, in turn, can sue individuals or other businesses. 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.
In order to file or defend a case in small claims court, you must be at least 18 years old and be mentally competent. Persons who are under 18 or who have been declared mentally incompetent by a court must be represented by a guardian ad litem. For a minor, the representative is ordinarily one of his or her parents. The court clerk or small claims advisor can explain how to have a guardian ad litem appointed.
If the court determines that a party can't properly present his or her claim or defense and needs assistance, the court may allow another individual to assist that party. The individual must provide assistance only - the individual's actions must not constitute representation.
Can Someone Else Represent You?
In most situations, parties to a small claims action must represent themselves. As a general rule, attorneys or non-attorney representatives (such as collection agencies or insurance companies) may not act as representatives. Self-representation is usually required. There are, however, several exceptions to this general rule:
Corporation or other legal entity
A corporation or other legal entity (but not a natural person) can be represented by a regular employee, an officer, or a director, and a partnership can be represented by a regular employee or a partner, but these representatives may not be attorneys or others whose only job is to represent the party in small claims court.
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 principally to manage the property, or this statement may be in a written declaration.
A sole proprietorship (such as a physician) can be represented by an employee, officer, or director if the claim can be proved or disputed by evidence of an account and there is no other issue of fact in the case. If both of these requirements are met, the claimant's representative 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.
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 on behalf of others four or more times during the calendar year.
· Nonresident real property owner - A nonresident owner of real property located in
· Military service - A person who is on active duty in the military service, or who is transferred out of California for more than six months after the claim arose, can be represented by a non-attorney and can submit written declarations in support of his or her claim or defense. For example, a tenant who is on active duty and who 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 and represent the tenant at the hearing against the landlord to recover the security deposit.
· Jail or prison - A person who is in jail or prison may be represented by someone else who isn't an attorney and may file written declarations in support of his or her claim or defense.
An individual who represents a party to a small claims court action must sign a written declaration - a form provided by the clerk of the small claims court. The declaration must state that the individual signing it is actually authorized to represent the party, and it also 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 declaration 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 declaration 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.
Can Your Spouse Represent You?
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 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.
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 and 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 oral or in writing, but it's a good idea to do it both ways. Always keep copies of any letters and other written communication. It's wise to send written communication by mail and 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 - to request. The judge will ask you to prove that you're entitled to the amount that you claim. You can receive a judgment only for an amount you can prove. You can prove your claim by using written contracts, warranties, receipts, canceled checks, letters, professional estimates of damage, photographs, drawings, your own statements, and the testimony of witnesses.
Small claims courts have an upper limit - called a jurisdictional limit - on the amount of money that a person can claim. The most you can claim is $7,500, and you can't divide a claim into two or more claims (claim splitting) in order to fall within the jurisdictional limit. A claimant can't file more than two small claims court actions for more than $2,500 anywhere in the state during any calendar year.
If your claim is over the small claims limit, you may file a case in the municipal court or in a consolidated court (the superior court) and either represent yourself or hire an attorney to represent you. Or you may choose to reduce the amount of your claim and waive the rest in order to stay within the small claims court's upper limit on claims for damages. Before reducing your claim, talk to a small claims advisor or an attorney. Once the dispute is heard and decided by the small claims court, your right to collect the amount that you waived is lost forever.
It's always wise to ask for the amount that you can prove, because if the defendant doesn't appear, your judgment will be limited to the claim you 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. As of January 1, 2000, the maximum claim will be $4,000 if the defendant guarantor charges a fee for its guarantor or surety services. An example of a guarantor is an insurance company that issued a bond at the request of an auto dealer or building contractor. Although cases against defendant guarantors are uncommon in small claims court, the small claims advisor or judge will know whether this limit applies.
It's important to file your case in a court in the appropriate county or judicial district. In legal terms, you must file in a proper venue (place). As a general rule, a case must be filed in the county or judicial district where the defendant resides. This general rule promotes fairness, in that it usually is easier for a defendant to defend a case if it's filed where he or she resides
When you file your case, you must state why the court where you filed your claim is the proper court. In cases against defendants who live outside the county or judicial district, the judge must always inquire and determine if the court is a proper court for that case. If the judge finds that the case wasn't filed in a proper court - in legal terms, that venue isn't proper - the judge must dismiss the case without prejudice unless all defendants are present and agree that the case may be heard.
The following are some exceptions to the general rule that a case must be filed and heard in the county and judicial district where the defendant resides:
The claim may be heard in the county or judicial district where the accident occurred or where the defendant resides.
The claim may be heard in the county or judicial district where the contract was entered into, where the contract was to be performed by the defendant, or where the plaintiff is entitled to receive payment.
Consumer purchase (claim by seller)
A claim to enforce a debt arising from a consumer purchase can be filed only in the county or judicial district (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, and (4) where the 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 goods, consumer services, or consumer credit that are the subject of the consumer's claim. Suit 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 situations where a buyer responds by telephone call or electronic transmission).
The exceptions to the general rule that requires filing the case in the county or judicial district where the defendant resides are complex and difficult to understand. If you intend to file a claim against a defendant outside the county or judicial district where the defendant resides, you should consult with your local small claims advisor to determine if your case falls within any of the exceptions to the general rule.
If there is more than one county or judicial district where your claim can be properly filed, you may be able to select the location that is most convenient for your witnesses. If you file in a county or judicial district in which the defendant doesn't reside, you must give the defendant a longer period of time for responding to your notice of the claim, and it will take longer for your case to get to court for hearing.
Special rules govern venue in 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 -
How Quickly Must You File Your Case?
Most claims must be filed within a set time limit, called a statute of limitations. 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 the operation of the statute of limitations was suspended and the time limit extended.
The statute of limitations prevents the filing of cases that are old. Memories fade, witnesses die or move away, and once-clear details tend to blur together. As a general rule, you should file your case as soon as reasonably possible. Statutes of limitations are generally not less than one year.
Here are some examples of statutes of limitations:
· Personal injury - One year from the injury. If the injury isn't immediately discovered, one year from the date it is discovered. A minor has one year from his or her eighteenth 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 file a written claim with that entity. For cases involving personal injury and/or damage to personal property, you must file the claim with the government entity within six months. For cases involving breach of contract and damage to real property, you must file the claim within one year. If your claim is rejected by the government entity, you must usually file a court action within six months of the rejection, or you'll lose your right to sue.
Rules governing the statute of limitations 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 have been extended. You might assume that a contract was an oral contract, which has a limitation of two years, while it is really 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.
What Forms Do You File With the Court?
If you are filing electronically, everything needed to present your claim is included within the electronic system. You do not need any other forms. You will need to file in person or by regular mail if you are filing on behalf of a minor or a legally incompetent person. You can obtain copies of all needed forms by visiting or writing any small claims court or by visiting the Judicial Council's website at www.courtinfo.ca.gov.
You must pay the filing fee when you submit your papers. If you can't afford this cost, you may request the court to waive those fees. You can request a court waiver by completing and filing an Application for Waiver of Court Fees and Costs. For information on the standards used by the court. you can see the Judicial Council's Information Sheet on Waiver of Court Fees and Costs.
If the court that you select holds evening or Saturday hearings, you can request an evening or Saturday hearing when you file your case. You can also ask the court clerk for the local court rules.
How Do You Name the Defendant?
In order for a claim to be enforced, the defendant must be named correctly. However, 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 or later.
If you're not sure which of several possible defendants is responsible for your claim, you should name each person you believe is liable. The court will decide whether the people you named are proper defendants and are legally responsible.
Here are some examples of ways to name a defendant:
Write the first name, middle initial (if known), and last name. Example:
"John A. Smith."
A business owned by an individual
Write the names of both the owner and the business.
Example: "John A. Smith, individually and doing business as Smith Carpeting." If you win your case, you can enforce your court judgment against assets (e.g., a checking account balance) in the names of either John A. Smith or Smith Carpeting.
Write the name of both the business partnership and the individual partners. Example: "Suburban Dry Cleaning" and "John A. Smith and Mary B. Smith." If you win your case, you'll be entitled to collect from either the partnership or either individual partner. They should be sued as "John A. Smith and Mary B. Smith, individually and doing business as Suburban Dry Cleaning."
Write the exact name of the corporation, as you know it, on the claim form. You need not name an individual. Example: "Fourth Dimension Graphics, Inc., a corporation." If the corporation operates through a division or subsidiary, both should be listed. Example: "Middle Eastern Quality Petrol, a corporation, individually and doing business as Fast Gas."
If you're suing to recover your losses 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."
You also need the defendant's correct address so that he or she can be notified of the case. If you're suing a local business or a corporation, you can find the defendant's correct name and address in the telephone directory or the city directory or by checking the city's business licensing bureau, the city or county tax assessor's office, or the county clerk's fictitious business name index. For some counties, you may find this information at www.criis.com.
The Secretary of State's Corporate Status Division can give you the names and addresses of persons who may be served on behalf of corporations that are doing business in
In order to amend your claim if it hasn't yet been served, go to the small claims clerk's office. Be sure to bring your copy of the original claim with you. If any of the defendants have been served on the original claim, you'll need to submit a letter to the court requesting the court's permission to amend your claim.
In order to delete one or more defendants from your claim, you must file a dismissal with the court. Be sure to indicate that you're dismissing the case only against certain named defendants and that you're not dismissing the entire case.
How Do You Notify the Defendant?
The Plaintiff's Claim and Order to Defendant form, when it is completed and issued by the court clerk, tells the defendant the basis for the claim and the date, time, and place of the hearing.
After you have filed your claim in the small claims court and obtained a hearing date, you must arrange for someone to give each defendant a copy of the Plaintiff's Claim and Order to Defendant. This must be done before your case can be heard. Giving this document to a defendant is called service of process. It's your responsibility to make sure that each defendant is properly notified about the lawsuit and to pay the fees and costs of giving this notice. As a courtesy, try to give the defendant more advance notice than is legally required.
With two exceptions, service of process must be made within the boundaries of the state of
· A nonresident defendant who owns real property in
· A nonresident defendant who owned or operated a motor vehicle involved in an accident on a
Nonresident (foreign) corporations or partnerships that operate here usually designate a
You can have the Plaintiff's Claim and Order to Defendant served in the following ways:
The court clerk may serve the Plaintiff's Claim and Order to Defendant by certified mail and restricted delivery and charge you a fee of about $6.00. The court clerk receives a return receipt indicating that the person identified by you for service signed for the certified mail.Prior to your hearing date, you should call the small claims clerk to determine that 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 the Plaintiff's Claim and Order to Defendant on the defendant.
A process server, someone other than yourself who is 18 years or older and not a party to the lawsuit, may give a copy of the Plaintiff's Claim and Order to Defendant to the defendant. Most plaintiffs use a professional process server or the sheriff as a process server and are entitled to reasonable reimbursement from the defendant for the cost of service if they win the case. If you decide not to use a professional process server or the sheriff and have a friend serve the papers, make sure that the papers are properly served on the defendant. It's not enough merely to drop the papers at the doorstep or serve a member of the household. Service of process is ordinarily accomplished by delivering a copy of the Plaintiff's Claim and Order to Defendant to the following person:
In the case of an individual defendant
To the defendant in person or to someone that the defendant has authorized to receive service.
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.
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, (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.
Usually 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.
A process server may also leave a copy of the Plaintiff's Claim and Order to Defendant at the defendant's home or usual place of business. It must be left in the presence of a competent member of the household who is 18 years or older, or with the person in charge at the defendant's place of business during normal office hours. The process server must tell the person being served what the papers are for. In either case, a copy of the papers must also be mailed to the defendant by first class mail at the place where the papers were left. Substitute service is considered to be completed on the tenth day after mailing. You must state the name of the defendant and the name of the person who served the papers on the Proof of Service form and return this to the clerk.
Service on nonresident motorist
A process server may serve a nonresident motorist involved in an in-state accident by first serving the California Department of Motor Vehicles 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 court clerk or small claims advisor before serving a nonresident motorist outside
No matter which type of service you use, service must be completed within explicit time limits before the hearing. Personal service must be completed 10 days before the hearing if the defendant lives or has his or her principal place of business in the same county where the court is located, and 15 days before the hearing if the defendant lives or has his or her principal place of business outside the county. If you used substitute service after service on the household or business, the Plaintiff's Claim and Order to Defendant form must be mailed at least 20 days before the hearing for in-county defendants and 25 days for out-of-county defendants.
If you don't serve the defendant within these explicit time limits, the defendant may ask for a postponement and, in most cases, it will be given. In counting the days, don't count the day in which service was completed, but do count the date of the hearing.
You need the defendant's address for a number of 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, when you file your case in small claims court, you'll need an address to give to the process server to serve the Plaintiff's Claim and Order to Defendant. 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.
Directories
The most obvious source of addresses, and one often overlooked, is the telephone directory. 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 the Reverse Telephone Directory in your public library. Numerous directories are also available on the Internet.
If the person you're seeking owns 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. In
If the person has moved, the Postal Service will no longer give out the new address for a private individual to another private individual merely upon written request. The new address for a business is available for a $3.00 fee. However, once you have filed your lawsuit, you may obtain the forwarding address of a person or a business for the purpose of serving legal process using the steps listed below.
Obtaining Post Office Box Records
The Postal Service will give you the street address of the holder of a post office box if the box is being used to solicit or engage in business with the public. You should visit or write the post office that services the box and provide an advertisement or other evidence that shows that the box is being used for a business purpose.
The Postal Service also will give you a forwarding address or the street address of a post office box for either a business or a person if you can certify that the information is needed to serve that party with court process and that it will be used solely for that purpose. To do this, you should visit or write the post office that services that box and complete a form, which you may pick up at the post office, or submit a written request that includes the following information:
1. Your name and address.
2. The name of the box holder.
3. The box number.
4. The zip code.
5. The fact that you're representing yourself in a legal action.
6. The name of the court.
7. The title of the case.
8. The case number.
9. A brief description of the nature of the case.
10. The identity of all other parties to the case.
11. The fact that the box holder is a party to the case (for instance, defendant or judgment debtor).
12. A statement that the information will be used only for serving a court paper (for instance, Service of Process or Order to Appear for Examination).
13. The citation of the law (for Service of Process, CCP Section 116.340, and for an Order to Appear for Examination, CCP Section 708.110). See Post Office Manual Section 352.44, subd.[e].
Locating 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' names. Check the computer listing of the business to obtain the 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. It's usually listed in the county section under the heading "Assessor-County Clerk-Recorder" or "
Locating Partnerships and Limited Liability Entities
The Secretary of State's website also includes records of general partnerships, limited partnerships, limited liability companies, and limited liability corporations. (See "Determining a Corporation's Directors and Agents for Service of Process" by clicking here).
Locating a Business Through the City Clerk's Office
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. You can find the address and phone number of the city clerk's office in the Government Pages of your phone book. It's usually listed in the city section under the heading "Clerk".
Determining a Corporation's Directors and Agents for Service of Process
The Secretary of State maintains a record of the names and addresses of the officers of corporations and their agents for service of process who can be served with the claim in a small claims action. For instructions on how to obtain this information, call (916) 657-5448 (recorded message). You can download instructions and an order form from the Internet at www.ss.ca.gov. For an extra charge, the Secretary of State will fax the requested information to you.
Department of Motor Vehicles Records
The Department of Motor Vehicles will no longer release residential addresses to litigants and process servers. The DMV will release residential addresses in the following situations:
To courts and other governmental entities
Courts will not obtain the residential addresses for litigants.
Many law enforcement agencies will request the residential addresses of motorists or vehicle owners for their accident reports.
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.
The insurance company requests the information for the purpose of obtaining the address of a motorist or vehicle owner who was involved in an accident with the insured. An insurance company may also obtain that address if the motorist or vehicle owner signed a waiver.
The financial institution must have obtained a written waiver from the individual driver or vehicle owner whose residential address is requested.
Many resources exist on the Internet to locate an individual or business. The major browsers have search capabilities if you know an individual's name. Reverse directories now exist online. Most regulatory agencies' websites have a directory of their licensees. Since Internet resources change constantly, you should research the different existing Internet resources.
What Should You Do After You Receive an Order to Appear?
You have been named as a defendant in a small claims action and have received an order to appear at a small claims hearing. This means that you're the defendant and are being sued by someone else - the plaintiff. You probably know why you have been sued. If you don't know why you're being sued, contact the plaintiff immediately for an explanation. The plaintiff's name and address appear on the Plaintiff's Claim and Order to Defendant form that you have received.
Never ignore an order to appear in court, even if you think the case is wrong, unfair, or has no basis. If you don't appear in court at the proper time and date, the court may still hear and decide the case without you, and you may lose the suit by default. A default judgment may then be entered against you, in your absence, without the judge ever hearing your version or side of the dispute. Your money or property and maybe a portion of your earnings can then be taken legally by the judgment creditor to pay the judgment against you, and your credit record may show that there is a judgment against you. If you're a member of a licensed profession or occupation, the judgment may be listed in the records of the agency that licenses you.
If the plaintiff's claim is valid, you can save yourself money, time, and inconvenience by resolving the dispute before the hearing date. If you go to court and the plaintiff wins, you'll probably also have to pay the plaintiff's court costs, and possibly interest, in addition to the amount that you already owe. The judgment may appear on your credit record, even after you've paid it.
You can try to reach a settlement with the plaintiff, or you can choose to let the court decide the case. If you're unable to resolve the dispute directly with the other party, you must appear at the hearing, unless you request a new court date, a transfer to another court, or some other official action by the court.
It's always a good idea to talk or write to the plaintiff before the hearing. The dispute may be based on a misunderstanding that you can clear up. If you believe that you owe the plaintiff something but don't have the money to pay it now, you can offer to pay the amount that you believe you owe by weekly or monthly payments. If that is the situation, you should take the following steps:
(1) ask the plaintiff to dismiss the case without prejudice (which means that the plaintiff can refile the claim if you don't carry out your promises), and (2) enter into a precise agreement for payment that includes the agreement you've made with the plaintiff on the following subjects:
(2) enter into a precise agreement for payment that includes the agreement you've made with the plaintiff on the following subjects:
· The grand total amount that you agree to pay, including any interest and court costs.
· The amount of each installment payment.
· The total number of installment payments.
· The date (such as "the first of each month") on which each installment payment will be paid.
· The exact date on which the installment payments begin.
· The length of any "grace period" for paying an installment and the effect of a failure to pay. For example: "If any installment is not paid within 10 days after the date on which it is due, the entire unpaid balance of the debt shall be immediately due and payable."
If you can persuade the plaintiff to dismiss the case without prejudice, and you pay the amount you agree to pay, the claim will not appear on your credit report as a judgment. Keep in mind that by entering into an installment payment agreement, you probably are waiving (giving up) your right to have the court determine whether you owed the debt. If you don't pay the debt, the plaintiff can simply bring this agreement to court and ask the court to issue a judgment which states that you owe the amount set forth in that agreement.
Even though you may have a justifiable defense to all or part of the plaintiff's claim (and believe you owe nothing, or less than the amount of the plaintiff's demand) and have informed the plaintiff why this is so, the plaintiff may refuse to reduce or withdraw the claim. In that situation, you should call a neighborhood mediation center to try to persuade the plaintiff to select a neutral third person to help you and the plaintiff resolve the dispute informally. Most neighborhood dispute resolution centers offer mediation services. In addition, some courts offer mediation services. In
If there isn't enough time to obtain help from a mediator before the hearing, you can appear at the hearing and ask the small claims judge to postpone the hearing to a later date in order to give you and the plaintiff sufficient time to attempt to resolve the dispute through mediation, arbitration, or other informal means. The judge, at his or her discretion, can postpone the hearing if either party requests a postponement for that reason.
What If You Can't Resolve the Dispute Informally?
If you can't resolve the dispute, make sure you attend the hearing and explain your side of the story to the judge. Remember that unless you're there, the judge can't possibly know whether you have a valid defense to the plaintiff's claim. For example, if you think the case is too old to be enforceable or that the plaintiff, not you, caused the problem, you must tell this to the judge. The judge will want to hear both sides before deciding and may agree with you.
Also, look closely at the amount claimed by the plaintiff. If it's a total of several items, ask yourself, Do I actually owe each item? Are the plaintiff's calculations correct? Are the claims for extras such as interest, collection fees, or late charges all valid? If you have questions, check with a small claims advisor before the hearing, or state your concerns to the judge at the hearing.
What If You Can't Attend the Hearing?
If you have a good reason to postpone the hearing to a different date, you can write a letter to the court and ask for a different hearing date. (Attorneys refer to this as a "continuance.") You must send a copy of your letter to the other party.
As a general rule, you must pay a fee of $10 with your written request for postponement. However, no fee is required if the defendant requests a postponement because he or she wasn't served in a timely manner before the hearing or requests a continuance before the plaintiff has served the claim on the defendant.
You must have a good reason to receive a postponement of a court hearing date. The court usually will postpone the hearing in the following situations: (1) the plaintiff hasn't been able to serve the defendant, (2) the defendant wasn't served a sufficient number of days in advance of the h