Small Claims Court Review for Volunteer Attorneys

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1 + Small Claims Court Review for Volunteer Attorneys Gary M. Baum Law Offices of Gary M. Baum

2 + Purpose of Small Claims Court Small Claims Court is designed for less formal and smaller disputes. Decisions are made by Commissioners or Temporary Judges. Typically, Small Claims Court is used for money disputes.

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6 + Jurisdiction $10,000 is the general ceiling for claims. A business may not file a claim for more than $5000. If a claim is for more than $10,000 and the filing is made in Small Claims Court, then the amount over $10,000 is waived. Claims for automobile personal injury are limited to $7500.

7 + Service Service must be done properly. Personal service is preferable, but cannot be done by the plaintiff. The person serving must be over 18 years old. Client may hire someone to serve the claim. Certified mail is a cheaper alternative. Substituted service is possible.

8 + Venue A claim should be filed in the County where the Defendant resides. It may be filed where the Defendant s business is located or where the contract was to be performed. Cases in South County should be filed in Morgan Hill. Cases in North County should be filed in Palo Alto.

9 + Tips for the Plaintiff Arrive at least ½ hour early to park and get through security. Attempt to settle with the Defendant if at all possible. Bring 3 copies of all documentation. Give the Defendant a copy of all documents. Live witnesses are always better than declarations.

10 + Tips for Defendants The same tips as apply for Plaintiffs, apply here. Dress nicely and wear clean clothing. Bring in an interpreter with them, if necessary. The interpreter should not be a witness. Be prepared to briefly explain their side of the story. Bring any evidence for the Commissioner to consider.

11 + Defaults Either side may default. For Defendant, ask that the case be dismissed with prejudice. A default can only be taken if service was proper. For Plaintiff they will need to prove up the value of their case.

12 + Special Circumstances A contractor may only sue for $500 or more if he or she is licensed. Bring a copy of the license to Court. No license, no case and the case will be dismissed. Note: car repair facilities must be licensed as well and they should take a copy of their license to Court.

13 + Landlord Tenant Disputes Landlord tenant disputes are one of the most common filings in small claims court. General Tips: Use photographs or live witnesses. Security deposits are capped at two times the monthly rent for unfurnished apartments and three times the monthly rent for furnished apartments. There is no such thing as a non-refundable deposit.

14 + Landlord Tenant Disputes (con t.) Most disputes are about security deposits. The landlord bears the burden of proof in these cases. Deposits may be withheld for cleaning, actual damage, alterations to the unit or unpaid rent or utility obligations. Deposits may not be withheld for normal wear and tear. For example, the life of a carpet is generally expected to be 5 years. The landlord must provide receipts for all amounts withheld.

15 + Landlord Tenant Disputes (con t.) The landlord must provide a full accounting and a refund of the remaining deposit within 21 days of the termination of tenancy. Receipts or a written summary if the work was performed by the landlord is required for all withheld amounts in excess of $125. Failure to provide the summary and funds within 21 days may result in a penalty of up to twice the deposit under Civil Code

16 + Collecting Judgments Winning is only the first step. Collecting can be the hard part. The judgment is stayed for 30 days after entry. If the judgment is for $750 or more involving a motor vehicle accident, the Plaintiff can file with the DMV which will affect the Defendant s license. Writs of Execution or wage garnishment are also available.

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