EARLY CARE & EDUCATION LAW UNIT WHAT YOU NEED TO KNOW ABOUT SMALL CLAIMS COURT

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1 EARLY CARE & EDUCATION LAW UNIT Publication Date: November 2013 WHAT YOU NEED TO KNOW ABOUT SMALL CLAIMS COURT In the operation of your child care business you may encounter problems which force you to go to court. These problems may range from a parent who is not paying you for child care services to a landlord that fails to make necessary repairs in the apartment you are renting. Before you go to court, it is important to understand what will happen on your day in court and how you should prepare yourself for your court appearance. This handout is intended to help you understand what to expect in Small Claims Court and it is not intended to provide legal advice. WHAT IS SMALL CLAIMS COURT? Small Claims Court handles civil cases where the amount of money involved is $10,000 or less. It is a special court where disputes are resolved quickly and inexpensively. Rules are simplified and the hearing is informal. There are no lawyers, no rules of evidence (but evidence is allowed), and no juries. WHO CAN SUE IN SMALL CLAIMS COURT? In order to sue in Small Claims Court you must be: At least 18 years old or legally emancipated, and Mentally competent to file or defend a case in Small Claims Court Almost anyone can sue or be sued in Small Claims Court: You can sue another person or a business, A business can sue a person or another business, You don t need to be a United States citizen to file or defend a case in Small Claims Court Suing a State or Local Entity: You must first file a Claim for Damages against the State or Local Entity you want to sue. The time limit for a Claim for personal or property injury is six months; breach of contract is one year. If your Claim is rejected or ignored for 45 days, you have 6 months to sue in Small Claims Court. Page S. A r d m o r e A v e., L o s A n g e l e s, C A P : /

2 WHAT CAN A PLAINTIFF (SUING PARTY) RECOVER IN SMALL CLAIMS COURT? MONEY The amount of money that can be recovered in Small Claims Court depends on whether you are operating your child care business as an individual or as a business entity such as a corporation or limited liability company (LLC). In most cases, a Family Child Care Home will be operating as an individual, not a business entity. If you have questions about whether you are an individual or a business entity, contact Public Counsel s Early Care and Education Law Unit at (213) ext Individuals may recover up to $10,000 Businesses may recover up to $5,000 You may file only two cases per year for amounts over $2,500 each You may file as many cases as you like for amounts below $2,500 each OTHER REMEDIES Normally you may only recover money, except in certain cases where the Judge may grant what is called equitable relief. Equitable relief means that the Judge can order the Defendant to do something or not do something other than pay money. Here are a couple of examples of what the Judge may order other than money: Rescission. Rescission is when the Judge cancels a contract. For example, if a parent is suing you based on the Parent-Provider contract and the Judge decides that the contract is extremely unfair or involves fraud, then the contract can be cancelled. Restitution. Restitution is when a Judge orders property returned to its rightful owner. For example, if a parent takes home toys that belong to you and refuses to return them, the Judge can order the parent to return the toys to you. WHAT ARE THE TIME LIMITS ON FILING CASES IN SMALL CLAIMS COURT? By law, there are certain time limits for filing a lawsuit. These limits are called Statutes of Limitations and vary for different types of cases. If the Plaintiff waits beyond the Statute of Limitation to bring their claim, the Plaintiff loses their right to bring their claim. California Statute of Limitations Periods for Common Claims: Personal Injury (someone hurt): 2 years from the injury or the date it was discovered. A minor has 2 years after his / her 18th birthday to file a claim regardless of when their injury occurred. Oral Contracts (a verbal agreement): 2 years from the date the contract was broken. Written Contracts (agreements in writing): 4 years from the date the contract was broken. Damage to Personal or Real Property (damage to your personal property or your home): 3 years from the date the damage occurred. Page S. A r d m o r e A v e., L o s A n g e l e s, C A P : /

3 WHAT DO I NEED TO DO BEFORE I FILE A CLAIM IN SMALL CLAIMS COURT? Have you tried to resolve the problem? You should try to contact the Defendant to resolve the problem before you start the Small Claims process. You must make a demand on the other person and ask for the money, property, or other relief that you intend to ask for in Small Claims Court. You can make the request verbally or in writing. When you make your written request be sure to: Send it by mail, Request return receipt from the US Post Office, and Keep a copy of any letters sent for evidence. Have you thought about mediation? You should consider mediation as a way to help you resolve your case outside of court. Mediation is available for all types of disputes and allows both parties to have control over the outcome. In mediation, a neutral third party helps to resolve the dispute. It may help you maintain your relationship if you are suing a: Parent Business Partner Family Member Landlord Neighbor For more information, please read Public Counsel s publication entitled Mediation vs. Litigation: Things to Consider Before Going to Court, which can be found here: Going-to-Court-2011.pdf Do you know how much money is involved? You will need to think carefully about how much money to request. You have to prove to the Judge that you are entitled to the amount of money that you claim. You can prove your claim by presenting almost any kind of evidence: Canceled check Drawings Letter Professional damages estimate Photographs Receipt Statements yours and witnesses Warranty Written contract Page S. A r d m o r e A v e., L o s A n g e l e s, C A P : /

4 HOW DO I FILE A CLAIM IN SMALL CLAIMS COURT? Find the Right Court As of March 2013, all Los Angeles Superior Court small claims cases must be filed in one of the following courthouses: Downtown Los Angeles, Alhambra, Antelope Valley, Downey, Inglewood, or Van Nuys. You can only file your case in one court and you must choose the right one. This is called the venue. If the Defendant is a person, you can file in the court nearest to where the Defendant lives. If the Defendant is a business, you can file in the court nearest to where the Defendant business is located. If your case involves a contract, you can file in the court nearest to where the contract was signed by the Defendant or where the contract was supposed to be carried out. If your case involves property damage or personal injury, you can file in the court nearest to where the damage or injury occurred. Based on the above options, there may be more than one court to choose from. If so, choose the court that is most convenient for you. If you will be filing your case in Los Angeles County, you can find a list of Small Claim Court locations here: In order to determine where to file a new small claims case in Los Angeles County, you should visit the following website: Complete the Paperwork You will need to complete a document called the Plaintiff s Claim and ORDER to Go to Small Claims Court (SC-100) to start your Small Claims case. This form can be found online on the California Courts website and can be completed electronically. To complete the form online, go to this website: File the Paperwork in Court Once you have completed the paperwork, you need to file your Small Claims Court papers with the court clerk. There are four ways to file court papers at the correct courthouse: In person By mail Online By fax For more information, visit this website: Filing Fees The filing fee is based on the amount of your claim. If you file less than 12 claims in one year the following fees apply: $30 for a claim up to $1,500 $50 for a claim of $1, to $5,000 $75 for a claim of $5, to $10,000 If you file more than 12 claims, the fee is $100 regardless of the amount you are suing for. Page S. A r d m o r e A v e., L o s A n g e l e s, C A P : /

5 If you cannot afford the filing fees, you may be eligible for a fee waiver. Please see Information Sheet on Waiver of Superior Court Fees and Costs (Form FW-001-INFO) and Request to Waive Court Fees (Form FW-001). Serve the Court Papers After filing your case, a copy of your Plaintiff s Claim must be delivered to the person or business you are suing. Each person named must be served. Service of the claim and order on defendant must be completed at least 15 days before the hearing date if defendant resides in the county in which the action is filed, or at least 20 days before the hearing date if defendant resides outside the county in which the action is filed. Your claim tells the other party that they are being sued and gives the date, time and place of the hearing. You cannot serve the claim yourself. There are four ways to serve the claim: Have the Sheriff in the courthouse closest to where the Defendant lives or works serve your claim. The fee is $35.00; Hire a Registered Process Server. You can find a list of registered process servers in the telephone book; Have a friend or family member over the age of 18 serve your claim. This person cannot be a witness or involved in the case; Have the court clerk serve your claim by certified mail. The fee is $10.00 per defendant. This method is not recommended). o Service by certified mail cannot be used to serve a notice of a Judgment Debtor Hearing or Subpoena A Proof of Service form for each Defendant must be filed with the clerk s office at least 5 days before the court date. You can file the Proof of Service in one of three ways: In person By fax (fees apply) By mail Who must be served? When suing: An individual: serve the claim to the person. If suing a minor, the claim must be given to the minor and their parent or legal guardian. A business: serve the claim to the owner or person in charge. A corporation: serve the claim to the Agent for Service or an officer of the corporation. A rental property owner: serve the owner. If the owner cannot be found, serve the manager. A government agency: A California State Government Agency, serve the Attorney General s Office. A Los Angeles County Agency, serve the Clerk of the Board. A City Agency, serve the City Clerk. Page S. A r d m o r e A v e., L o s A n g e l e s, C A P : /

6 How do I challenge the court location or venue? You must write a letter to the court. The letter should include the following: State that you want to challenge the venue Explain why you believe you are being sued in the wrong court Name the correct court the case should be moved to Include a copy of the Plaintiff s Claim that was served on you Mail a copy of your letter to the court and to the Plaintiff. You should mail the letter at least 10 calendar days before the scheduled court date. If you challenge your court location, you do not have to go to the court on your court date. The letter will be reviewed by the Judge on the scheduled court date. If the Judge determines that the venue is improper, the Judge can dismiss the case, and the Plaintiff will have to re-file. If the Judge determines that the venue is proper, the Judge will delay the case at least 15 calendar days, and you will receive a notification of the new court date by mail. How soon is the court date? A court hearing will be scheduled within 20 to 70 days. Can the Defendant sue me? Yes. The person you are suing can counter-sue you. They may counter-sue you by filing a Defendant s Claim and having a copy served to you. Can I change my court date? Yes. If you have not served the Defendant you can request to have your court date rescheduled free of charge. If you have served the Defendant you can request a Postponement and pay a $10 fee. The Request for Postponement should be filed at least 10 days prior to your court hearing. WHAT HAPPENS ON THE DAY OF TRIAL? On the day of trial, you will be called into the courtroom and the clerk and bailiff will discuss the courtroom procedures. The courtroom is kept silent while cases are being heard and while the clerk or bailiff is speaking. If you wish to speak to the other party to discuss a settlement or any other matter, politely ask them to step outside with you. Most small claims cases last only 15 to 20 minutes. For this reason, it is best to organize your evidence ahead of time and be prepared to present all of the important facts to the Court in an organized manner. You may want to prepare a chart or timeline of the facts in chronological order and take brief notes on what you want to say. If you have documents, bring the original and two photocopies. You will keep the original and give one copy to the Judge and the other to the Defendant. Here are some examples of evidence to bring: Witnesses to testify on your behalf. *If it is not possible to get your witness to come to Court, try to obtain a sworn statement also known as a declaration from each unavailable witness to Page S. A r d m o r e A v e., L o s A n g e l e s, C A P : /

7 bring to Court with you. For declarations, use Form MC-030 which can be found at: ; Receipts or cancelled checks that prove you are owed money; Bills or repair estimates; Photographs of property damage or injuries; Written contracts, agreements or other documents that prove your case; Any physical evidence you may have. What if I don t speak English? If you do not speak English, bring someone to the court who can interpret for you. How do I behave in court? Be respectful to the Judge, the Defendant and everyone else in the courtroom. In court, only one person speaks at a time. Do not interrupt others who are speaking. Remember, you are not in court to convince the Judge that the Defendant is a bad person; you are there to prove that you are owed money. Remember to speak to the Judge, and not to the opposing party. How do I present my case? When the Judge allows you to speak, get right to the point and stick to the facts of your case. Give the Judge copies of your evidence. You can refer to your notes but do not read a prepared statement to the Judge. If the Judge asks you a question, answer it directly. Avoid long statements that do not directly answer the Judge s questions. If you are the Plaintiff, make your case for why the Defendant is at fault and then make the case for how much money you are owed. When will the Judge make a decision? The Judge can make a decision at the end of the hearing. However, in most cases, the Judge will render his or her decision after some time and you will be notified of this decision by mail. What if I win? The Judge will award you the money owed and if you ask, may award your court costs such as filing fees, process server fees and witness fees. You must wait 30 days before trying to collect your money. This period of time allows the Defendant to file an Appeal if they appeared at the hearing. If the Defendant did not appear at the hearing, they can file a Motion to Vacate Judgment. After 30 days, you can take action to begin collecting the money awarded to you. What if I lose? As the Plaintiff, you cannot appeal if you lose on your Plaintiff s Claim. If you are the Defendant, you have 30 days to file an appeal. What if I decide I want to go to mediation? It s not too late! Most Small Claims Courts will have mediators present on the day of the trial to help you work out a settlement before you have to present your case to the Judge. Page S. A r d m o r e A v e., L o s A n g e l e s, C A P : /

8 What if I miss my court date? If you miss your court date, the Judge may dismiss your case without prejudice. If so, you can start over and file your case again as long as you are within the statute of limitations. IF I WIN MY CASE, HOW DO I COLLECT MY MONEY? If you win your case, the money the court awards you is called the judgment. You are the Judgment Creditor. The person who owes you money is the Judgment Debtor. If the Judgment Debtor does not pay you within 30 days, there are various ways in which you can collect the judgment: 1. You can request payment of the judgment by a phone call, letter or , or in person meeting with the Judgment Debtor and remind him/her that a judgment has been entered in your favor and request making arrangements so the judgment can be paid off. If you do not get a response from the Judgment Debtor within 7-10 days, you should write a formal final demand letter stating the amount you were awarded and that if you do not receive the payment within a set period of time, you will begin formal collection proceedings against the judgment debtor. 2. If you cannot collect the judgment from the Judgment Debtor through the above methods, you can fill out the Statement of Assets (Form SC-133) and give it to the Judgment Debtor. Unless the Judgment Debtor appeals the judgment or files a motion to vacate the judgment, the Judgment Debtor must complete and return this form to you within 30 days of the judgment. If the Judgment Debtor does not complete and return this form to you within 30 days of the judgment, you may ask the Small Claims Court to find him or her in contempt and the Court may add any fines charged to the judgment. 3. If the Judgment Debtor refuses to pay the judgment to you willingly, you may use the Sheriff to help you collect your money after you find out what assets the Judgment Debtor owns. In order to find out what assets the Judgment Debtor owns, you may conduct a Judgment Debtor s examination. During this examination, the Judgment Debtor will appear in court to answer questions about their assets (money or property) that can be used to pay the judgment. In order to conduct this examination, you need to file an Application for Order to Produce Statement of Assets and to Appear for Examination (Form SC-134). If you want the Judgment Debtor to bring certain documents with him/her to the examination, you ll need the small claims clerk to issue a Small Claims Subpoena for Personal Appearance and Production of Documents at Trial or Hearing and Declaration (Form SC-107). Once you find out what assets the judgment debtor owns, in order to collect money, you must first get a Writ of Execution. A Writ of Execution is an order from the court to the Sheriff that allows the Sheriff to collect money owed to you. You get a Writ of Execution at the court clerk s office. Here are some ways the Sheriff can help collect your money: If you know where the Judgment Debtor banks, you can ask the Sheriff to collect money from their account. The Sheriff will charge you $35 to perform this service. Page S. A r d m o r e A v e., L o s A n g e l e s, C A P : /

9 If you know where the Judgment Debtor works, the Sheriff can collect 25% of the debtor s wages above minimum wage, each month, until your judgment is paid in full. The Sheriff will charge you $30 to perform this service. If the Judgment Debtor has property, you can file for a Judgment Lien on the property and then request that the Sheriff seize and sell the property. Proceeds from the sale will be used to pay off your Judgment Lien, and any remaining money from the sale goes to the Defendant. To find out the fees for the above Sheriff services, please visit this website: After the Judgment Debtor has paid the judgment amount to you, you as the Judgment Creditor must sign the short Acknowledgment of Satisfaction of Judgment portion of the Notice of Entry of Judgment and file it with the Small Claims Court. Completing this form is like giving a receipt and is needed to end the case. Further, you must file this form within 14 days of receiving a written request from the Judgment Debtor, and you can be held liable for losses that the Judgment Debtor incurs because of your failure to do so and other fines. Can I add collection costs and interest to my judgment? Yes. You can add your collection costs plus 10% interest per year onto your judgment. To do this, you need to file the form called, Memorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest with the clerk s office. You have two years from the date you paid to add collection costs to your judgment. You can add interest anytime prior to collection. What is the time period within which I have to collect? You have ten years from the date the judgment was entered to collect your money. If you cannot collect within 10 years, you can renew the judgment for another ten years by filing the forms called Application For And Renewal of Judgment and Notice of Renewal of Judgment. You must file these forms with the clerk before the end of the 10-year period. Be sure to send a copy of each form to the Judgment Debtor and file a Proof of Service with the court. ADDITIONAL RESOURCES For further information regarding small claims, please visit: 1. The County of Los Angeles Department of Consumer Affairs provides a Small Claims Advisor Service. This service is available to individuals and businesses suing or being sued in a Los Angeles County Small Claims Court. To find out more information about this service call or visit 2. The California Courts Self-Help Center s website provides information on the Small Claims process. The website can be found at This document was prepared by Public Counsel s Early Care & Education Law Unit in November This document is meant to provide general information. This document is not all-inclusive and is not intended to provide any individual or entity with specific legal advice. Receiving this document does not create any lawyer-client relationship. For questions or comments, please call the ECE Law Project Intake line at 213/ ext Page S. A r d m o r e A v e., L o s A n g e l e s, C A P : /

10 2013 by Public Counsel. Please contact Public Counsel if you plan to make multiple copies and/or plan to charge for distribution of this product. Page S. A r d m o r e A v e., L o s A n g e l e s, C A P : /

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