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Small Claims Clinic Fridays             10:00 am

Step-By-Step Guide

This information is intended as a procedural guide only.  You may seek an attorney’s advice, but a lawyer can't represent you in small claim’s court.  Any errors in following the strict procedural requirements outlined below may result in you having to refile and ultimately delay your small claims case.


I.  General Demand Letter

 

You must ask the defendant to pay you before you sue.  A written demand letter is best.

How to compose your letter:

1)      Use a typewriter or computer

2)      Start by briefly reviewing the main facts of the dispute

3)      Be polite

4)      Ask for exactly what you want and set a deadline

5)      Conclude by stating you will promptly pursue your legal remedies if your demand is not met

6)      Keep a copy of this correspondence

Click here  for an online computer program that will help you write a demand letter. 

Send the general demand letter by certified mail with a return receipt.  This will serve as proof if the case goes to court that the defendant received your letter. 

 

II.  Venue Table

The plaintiff must file their small claims case in the proper justice center and geographical area.  This rule is called venue.  The correct venue is based on any of the following options: 

A. A defendant lives in this venue or a defendant corporation or unincorporated association has its principal place of business in this venue.

B. A person was injured or personal property was damaged in this venue.

C. A defendant signed, entered into a contract, lives in this venue, or if the defendant was a corporation or the contract was breached in this venue.

D. The claim is on a retail installment account or contract subject to Civil Code section 1812.10.

E. The claim is on a vehicle finance sale subject to Civil Code section 2984.4.

For a list of each justice center please refer to the Venue Table.  If you bring your claim in the wrong court, the court may dismiss your case and you will have to refile in the correct court.

III. Plaintiff’s Claim and Order to go to Court 

 

Complete the Plaintiff’s Claim and Order to go to Court



*You must correctly name the defendant.
 
If it's possible that you may need to use the court process to enforce a judgment in your favor, it's important that the defendant must be 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, individually and doing business as Smith Carpeting, and Smith Carpeting, a proprietorship." 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. For more tips on naming or finding a business name, click here.

 

A business owned by two or more individuals—Write the names of both the business and all of the owners that you can identify. Example: By naming Suburban Dry Cleaning and its owners, John A. Smith and Mary B. Smith, you can collect from the assets of either the business or an individual owner. They can be sued as "John A. Smith and Mary B. Smith, individually and doing business as Suburban Dry Cleaning, and Suburban Dry Cleaning, a partnership."

 

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. Example: "Fourth Dimension Graphics, Inc., a corporation." If the corporation operates through a division, corporate subsidiary or fictitious business name, both should be listed. Example: "Middle Eastern Quality Petrol, a Delaware corporation, individually and doing business as Fast Gas, and Fast Gas."

 

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."

  1. Make a copy for yourself and each defendant named.  Take the completed forms and copies to the proper Justice Center and file with the Small Claim’s clerk. 
  2. Pay the current filing fee.

The clerk of the court will stamp and issue a date of hearing on each form and copy.  The court will keep the original.  You must keep one copy for your own records and you must serve the remaining copies on each defendant. 

IV. Service of Small Claims

There are 3 different ways to serve someone:

(1) Personal Service: 

 -The Sheriff charges $40 to serve each defendant.  You must contact the Sheriff in the county in which the defendant is located.  

Click here for Sheriff Service Instructions. Or contact the Orange County Sheriff's Office:

North County 714-569-3700
South County 949-476-4820

-Professional process servers charge a similar fee for service and may be found in any yellow pages. Anyone over the age of 18 who is not a party to the action may serve a defendant.

* Tell the server to:  Walk up to the person to be served and say, "These are court papers." Give the person copies of all the court papers. If the person won't take the papers, just leave them near the person. It doesn't matter if the person tears them up or throws them away.

*You must serve your claim at least 15 days before the court date (or 20 days if the person, business, or public entity you're serving is outside the county).                                                                                                                                                                               

(2) Substituted Service:  If the person you have to serve is not at home or work when your server goes there, your server can give the court papers to:

  • A competent adult (at least 18) living at the home with the person to be served, or
  • An adult who seems to be in charge where the person to be served usually works, or
  • Tell the person s/he's leaving the court papers with to give them to the person you're suing.
  • Write down the name of the person s/he gave the court papers to. If the person won't give his/her name, your server must write down a physical description of the person who took the papers.
  • Mail another copy of the court papers by first-class mail to the person you're suing at the same address where your server left the papers.

*You must serve  your claim at least 25 days before your court date (or 30 days if the person, business, or public entity you're serving is outside the county).

(3) Service by Certified Mail by the Court Clerk 

However, you must keep in mind that if the defendant chooses not to sign for the certified mail, then they were not served with the lawsuit. 

For information on how to serve a business click here. For any type of service, the person doing the service must complete and file a Proof of Service for each defendant served.  Once your server fills out and signs the Proof of Service, you must file it with the Court at least 5 days before your court date.

V. The Hearing

Before your court date, plan what you are going to say. Decide what your main points are and bring proof. Try to think of what the other person might say and how you will answer. You can also talk to a small claims legal advisor or a lawyer before court.  

Types of proof:

  • Contracts
  • Estimates (bring at least 2)
  • Bills
  • Photographs
  • Diagrams that show how an accident happened
  • Police reports

If you need documents that someone else has, or you wish to bring a witness, you can fill out a subpoena form.


VI. Judgment

At the trial, the judge will either rule the day of or keep the case under submission.  In either event, both parties will receive a Notice of Entry of Judgment through the mail. 

VII. Collecting Your Judgment

You must wait 30 days from the date of mailing of the Entry of Judgment before proceeding with collecting your judgment.  If the judge rules in your favor, the defendant becomes known  as the judgment debtor and your are the judgment creditor.  There are various options for collecting your judgment if the judgment debtor does not pay you voluntarily:  

-Debtor’s Examination:  If you have no information with regards to the judgment debtor’s assets, you may choose to do a debtor’s examination.  You should come to the hearing with a list of questions to ask the debtor.

In a debtor's examination, you can ask the debtor:

  • What type of property they own,
  • Where that property is located, and
  • Whether or not the debtor has a job.


Fill out an Application and Order to Produce Statement of Assets and to Appear for Examination   and Judgment Debtor's Statement of Assets.

Take these forms to court to get a hearing date. (Click here  to see Sample Questions to Ask the Debtor) The debtor will be put under oath, but in most counties you will ask the questions yourself. The questioning will probably occur outside the presence of the court commissioner or judge.

You should also serve the debtor with a Subpoena and Declaration  for any documents you need to see.  The subpoena, notice of debtor's examination and judgment debtor's statement of assets must be personally served on the debtor.

-Garnishment of Wages:  You'll need the court to issue a Writ of Execution.  You'll then need to prepare an Application for Earnings Withholding Order.  You'll then need to prepare instructions for the sheriff. 

-Levy a Bank Account:  You’ll need the court to issue a Writ of Execution. You'll then need to prepare instructions for the sheriff explaining what you want them to levy. Then you will need to prepare a Notice of Levy (Enforcement of Judgment).

-Place a Lien on Property:  Have the court clerk issue an Abstract of Judgment .  Take or mail the Abstract of Judgment to the County Recorder 's office in the county where you believe the debtor owns real property. Click here  to find a County Recorder.  You will not be paid automatically, but if there is a refinancing or sale of the property, you should get paid your money with interest. You do not need to know the address of the real property to record an Abstact. However, if you would like to ascertain this information, then some county assessors will confirm if a debtor owns real property over the phone. Click here to find a local tax assessor.

Click here  for more ways to collect your judgment

Court Fees

The Superior Court must charge for the various documents filed and issued. Check our Fee Schedule  for current fees.

Sheriff Instruction

 

Forms

All of the aforementioned forms are available from each courthouse or you may download the forms from this web site.

Interpreters

Ask the clerk if the court can give you an interpreter for free.  If not, bring someone-such as an adult or relative or friend-who can interpret for you in court.  It is best if your interpreter is not a witness or listed in this case.  Lastly, you may choose to ask the clerk for a list of interpreters (Interpreters usually charge a fee.)   


Questions

If you have questions regarding the process or procedures of small claims please call the Small Claims Court Advisory of the Legal Aid Society of Orange County.  Small Claims Clinics  are held every Friday. 

Call (714) 571-5200  or  (800) 963-7717 for questions pertaining to the status of your case should be directed to the Justice Center where your case is filed.

 

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