How to file and prepare a winning small claims case in Sacramento

1. How to file and prepare a winning small claims case in Sacramento Instructor: Eric Nakano Sacramento County Public Law Library 609 9th Street Sacramento, CA 95814 (916) 874-6012

2. Small Claims Court- Not As seen on TV • Television shows based on small claims court have been popular for decades. • Reality differs from television in several ways: • Judges and temporary judges in Small Claims court tend to be nicer than on TV • The cases on TV have been hand-picked for drama and conflict • There is no dramatic entrance from the back of the courtroom • Our court provides a mediator to help resolve a case first • There’s no announcer, or post-judgment interview • Getting paid is harder (the people on TV are paid)

3. Small claims court, the Good • Quick: • Cases are heard in weeks and months, not years • Easy: Simple paperwork Simple procedures Simple trial • Cheap: • Filing fee is based on amount claimed • Highest fee (except for repeat filers) is $75 • No attorneys (unless representing themselves) • You won’t be up against an attorney (unless you sue or are sued by one)

4. Small claims court, the bad • Quick: • Limited discovery, means limited access to opposingevidence • Easy: • Simplified paperwork , procedure, and trial maynot be appropriate for more complicated legal issues • No attorneys (with a few exceptions):Parties are responsible for preparing and presentingtheir own case. • Some persons have difficulty presenting their case for any number of reasons

5. Small claims court, the ugly(?) • Limited appeals: • A losing plaintiff does not have a right to appealthe judgment • A losing defendant can appeal the judgment • Easy: • The simplified trial can make it extremely difficult ifyour case involves complicated facts or a novellegal theory.

6. How Big is the Small in small claims?? • In general: • Natural persons and sole proprietors- Up to $10,000 • Business and government entities Up to $5,000 • No more than two cases over $2,500 in a calendar year • Exceptions: • Personal injury motor vehicle accidents against an insured driver where there is a duty to defend- Up to $7,500 • Guarantors can be sued for up to $6,500 by natural persons, or $4,000 by an entity, however the claim is limited to $2,500 if the guarantor did not charge a fee for the guarantee. If the State Contract Licensing Board is the guarantor, you may sue for up to $10,000 • Third party collection companies cannot use the Small Claims Court

7. Before you file: Make sure you have a case • There are a limited number of theories (causes of action) upon which the court may grant relief • Each cause of action has specific elements that must be proven • Do (or will) you have evidence to establish each and every element? Determine your itemized damages • The court will only award damages according to proof, up the amount listed on the Claim. Because of this, you will want to know your damages so they may be listed on the Claim. Send a demand letter (or government claim, if suing a government entity)

8. Overview: Filing your lawsuit • Complete Plaintiff’s Claim and Order to Go to Small Claims Court (SC-100) (online filing or mail filing), or use computer terminal at court for a guided completion and filing of forms • File in the Small Claims Court (in Sacramento, the 2nd floor of the Carol Miller Justice Center at 301 Bicentennial Cir., or online) • Pay the filing fee (or request fee waiver). As of August 2014: • Claim for $1,500 or less- $30 • Claim for more than $1,500, up to $5,000- $50 • Claim over $5,000 up to $10,000- $75 • Claim filed by someone who has filed more than 12 cases in the previous 12 months- $100 • If filing online, payment may be made by credit card or fee waiver only.

9. Overview: Serving your claim and order • Defendant must be served at least 15 days prior to hearing if in same county as filing, or 20 days prior to hearing if outside the county. • Personal service: Someone over 18 who is not a party in the case hands a copy of the filed Plaintiff’s Claim and Order to Go to Small Claims Court (SC-100), and a blank Defendant’s Claim and Order to Go to Small Claims Court (SC-120) • Sheriff- Currently $35, but fee waiver is accepted • Process Server- Price varies, no fee waiver • Individual- Typically a friend or family member, • Substituted service: Someone over 18 who is not a party in the case hands a copy of the filed Plaintiff’s Claim and Order to Go to Small Claims Court (SC-100), and a blank Defendant’s Claim and Order to Go to Small Claims Court (SC-120) to an adult at the home or work of the defendant and mails a copy to that address • Service is complete 10 days after mailing, so the service must be 25 or 30 days prior to the hearing

10. Overview: Serving your claim and order Certified mail by court clerk: • Clerk sends copy of Plaintiff’s Claim and Order to Go to Small Claims Court (SC-100), and a blank Defendant’s Claim and Order to Go to Small Claims Court (SC-120) to defendant by certified mail • Small fee, currently $15 • Service effective upon defendant receiving certified letter • Downside: When was the last time anything good came by certified mail? May not be accepted unless it was clearly signed for by theintended recipient No.

11. Overview: If you’re the defendant To defend against the plaintiff’s case: • Gather your evidence and witnesses • Appear at your hearing prepared to present your defense To also sue the plaintiff: • Complete, file, and serve Defendant’s Claim and Order to Go to Small Claims Court (SC-120) (mail or electronic filing), or use computer terminal at court to file. Filing fee based on the amount claimed • Appear at your hearing prepared to present your defense as well as your case against the plaintiff.

12. Overview: Attend your hearing • Check the docket • Check in • Meet with opposing party to “exchange” evidence • Negotiate settlement • If settled, settlement can be entered as court order • If no settlement is had, case is argued in court • Plaintiff has burden of proof, so goes first • If burden is met, defendant presents defense • Court may issue judgment immediately, or take the matter under submission, and mail a judgment to the parties

13. Common case types and “elements” • Breach of Contract: • Oral or written contract • Defendant breached the agreement within the statute of limitations • Plaintiff has been harmed by the breach, and the damages sought are the type of damages reasonably anticipated in the contract • Negligence (including most motor vehicle accidents): • Defendant owed a legal duty to the plaintiff • The defendant breached that legal duty by failing to exercise reasonable care • The plaintiff was harmed (damaged) by the breach • The harm caused by the breach was the type of harm reasonably expected from the type of breach Note: Hearings are informal, so it is not necessary to identify the causes of action, as the judge will attempt to fit your facts into a cause of action, but knowing the elements you must prove allows you to better present your evidence

14. Common case types and “elements” • Common counts (things common to business that can be sued upon like a contract): • Open book account- Business keeps ledger sheet for each customer, and is suing for the fair market value of the goods or services provided to the defendant based upon the written ledger. • Account-Defendant has an account with the plaintiff. The plaintiff sends out regular statements, and the defendant does not dispute the amount on the statements. Plaintiff sues based on the theory that the defendant, by not disputing the statements, has agreed the amount reflected by the statements is owed. • Money loaned- Plaintiff has loaned or expended money at the defendant’s request which the defendant had promised to repay. • Goods or services provided- Plaintiff provided goods or services which the defendant promised to pay. Plaintiff is suing for the amount promised, or the fair market value of the goods or services.

15. Common case types and “elements” • Fraud (has a very specific legal definition): • Defendant either: • Intentionally made a false representation regarding a material fact • Intentionally failed to disclose a material fact he or she was obligated to disclose • Entered into an agreement with you, but at the time the agreement was made had no intention of performing under the agreement • The statement or omission of the defendant was intended to cause you to do or not do something • You reasonably relied upon the statement or omission without knowing the truth, and as a result performed the act or omission • As a result of you have been harmed in some way

16. Common case types and “elements” • Battery: • Defendant intentionally causes harmful or offensive contact with the plaintiff • The harmful or offensive contact was not justified • The plaintiff experienced some harm as a result of the harmful or offensive contact • Assault: • Defendant intentionally takes an action causing plaintiff to have fear of immediate and imminent harmful or offensive contact • The act causing the fear of contact or harm was not justified • The plaintiff experienced some harm as a result of act

17. Common “Statute of Limitations” Any lawsuit must b filed within a limited amount of time from whatever wrongdoing is claimed. • Breach of a written contract, open book account, account stated, or other common count based on a writing,: 4 years • Breach of an oral contract or a common count without a writing- 2 years • Fraud: 3 years • Personal injury claims: 2 years • Property damage claims: 3 years • Claims against government entities: Claim must be filed first, usually within six months, and then a lawsuit may be filed within a short period of time after the claim is rejected and a “right to sue” letter issued

18. The paperwork- very simple • Plaintiff’s Claim and ORDER to Go to Small Claims Court (SC-100) • Page 1: • Write in name and address of the court where indicated • “Case Name” is your last name (or abbreviated business name), the letter “v” for “Versus” and the last name or abbreviated company name of the first defendant. • The court will complete the case number and hearing date.

19. The paperwork- very simple • Plaintiff’s Claim and ORDER to Go to Small Claims Court (SC-100) • Page 2: • Paragraph 1- Plaintiff’s type of entity, name, address, and phone number • Paragraph 2- Defendant’s type of entity, name, address, and phone number • Paragraph 3 is the amount claimed, and the basis of the claim. In only a few lines. The court cannot award more than the amount claimed.

20. The paperwork- very simple • Plaintiff’s Claim and ORDER to Go to Small Claims Court (SC-100) • Page 3: • Paragraph 4- have you made a demand? • Paragraph 5- the reason the county you are filing in is correct. • Paragraph 6- the zip code of paragraph 5. • Paragraph 7 – 9 are self explanatory. • The remaining pages are instructional. • Defendant’s SC-120 form is almost identical.

21. Filing your claim By mail: • Download and print small claims forms (or pick them up) • Mail forms to:Carol Miiller Justice Center, Small Claims Filing301 Bicentennial Cir.Sacramento, CA 95826 • In person: • Carol Miiller Justice Center301 Bicentennial Cir.Sacramento, CA 95826 • Filing on 2nd floor • Use a computer to answer a series of questions to complete and file the paperwork • Electronically: • Go to small claims web page at www.saccourt.ca.gov (select “Small Claims” on left), and then click “Electronic Filing “ to go to https://www.saccourt.ca.gov/efiling/small-claims.aspx. • Download either the SC-100 or SC-120 form from that page. You will need Acrobat Reader X or newer. • Complete the forms, including payment information (or select fee waiver for a fee waiver page to complete), and then click the link to submit it. It will be filed electronically. Once processed, you will receive your forms by e-mail, ready to print out and serve.

22. Who can represent a party? • Individuals and sole proprietorships should appear themselves • Business entities (corporations, LLC’s, etc.) should send a non-attorney individual (whose job cannot primarily be appearing in small claims cases), who has knowledge of any evidence, and authority to settle the case • Exceptions when someone else may appear on behalf of a party: • Custodian of records: If case involves a business record an employee with knowledge of the business records and authority to settle may appear • Property agent: A property agent managing the property may represent the property owner in a case involving the property, provided this person’s job is not primarily representing the property owner in small claims court • Non-residential real property (land) owners in cases involving the property may send a declaration to the court, or have a non-attorney represent them • Military service: A person on active duty outside of California may submit written declarations and have a non-attorney represent him or her • Jail or prison: An inmate may submit written declarations and have a non-attorney represent him or her • Spouses: An individual’s spouse may appear on his or her behalf if they have a joint interest, and the spouse he or she is appearing for consents

23. Attend your hearing • Arrive early, check the docket • Attendant will provide introduction, and clerkwill take roll • Meet with opposing party to “exchange” evidence • Mediator will help parties negotiate a settlement.If a settlement is reached, the settled case will bethe next matter heard, and the judge will review thesettlement • If no settlement, check in with the clerk, and the case will be argued when called by the court • Plaintiff has burden of proof, so goes first • If burden is met, defendant presents defense • Court may issue judgment immediately, or take the matter under submission, and mail a judgment to the parties Note: Your case will typically heard by a “temporary judge” who is an attorney that has volunteered. If either party refuses to agree to have a temporary judge hear the matter, the case will be continued to a date a judge is available.

24. What makes a winning case? Clear, concise, and complete: • The party can clearly and concisely explain his or her case • The party has well-organized documents that evidence his or her case • Copies of any written contracts, statements, payments, etc., well organized so that they can be quickly and easily reviewed • Photographs, if applicable. If they are on your phone, it is more effective if you make high-quality printed copies rather than ask the judge to look at your phone • An itemized listing of how damages were calculated • Printouts of any specialized code or cases that may apply can be very helpful to the judge. • Copies of California codes may be found and printed from http://leginfo.legislature.ca.gov Be sure any printout clearly identifies the code (e.g. “Code of Civil Procedure,” “Civil Code” or “Business and Professions Code” and the section number) • Case law may be printed from a number of sources available at the law library • The party has any other necessary evidence ready, and stays on point

25. The judgment: • If judgment is being entered immediately by the judge, remain in the courtroom to receive your paperwork. If taken “under submission” it will be mailed to each party. • If you lose: • Plaintiff (or defendant counter-suing) cannot appeal the judgment • Plaintiff that lost because he or she failed to appear may file motion to vacate the judgment, and have a new hearing date based on inadvertence, surprise, or excusable neglect (Form SC-135) • Defendant that did not appear may file motion to vacate based on inadvertence, surprise, or excusable neglect. (Form SC-135) • Defendant may appeal the judgment (Form SC-140) • Appeal in small claims is a trial “de novo” in front of a judge • Parties may be represented by counsel at the new hearing

26. Collecting the judgment • In addition to simply paying, a losing party may: • Request to make payments in installments (form SC-220) • If installments are approved and timely paid, the judgment creditor may not collect through other means • If the judgment debtor defaults on the payments, the judgment creditor may ask the court to declare a default on the payments so he or she may collect through other means (form SC-223) • Request to pay judgment to the court (SC-145) • Do nothing, and allow the judgment creditor to collect, if he or she is able

27. Collecting the judgment A winning party may collect on a judgment by: • Privately negotiating payment • Accepting payments, if they have been ordered • Seeking to garnish wages or levy a bank account using a Writ of Execution (form EJ-130) and the sheriff • Examining the judgment debtor to determine his or her assets (form SC-134) • Recording a lien against any real property (land) owned by the judgment debtor (form EJ-001) Once the judgment is paid, the judgment debtor should issue an Acknowledgement of Satisfaction of Judgment (form SC-290)