Reproduced with the Permission of Miles L. Kavaller
My clients rarely forget to remind me of the exorbitant fees charged by lawyers. That expense can often be avoided be filing a claim in Small Claims Court. These courts are accessible, inexpensive and easy to use. I recommend them. But, there are advantages and disadvantages.
There is a small claims court in every superior court. With minor exceptions, a recovery of up to $5000 can be obtained. Claims exceeding $5000 can be filed provided the excess over $5000 is waived. The filing fee is now $20 if the claimant has filed no more than 12 claims during the previous 12 months. A fee of $35 is required for the filing of any additional claims. Plaintiff’s claim form is simple to complete requiring the name and address of the defendant, the amount and basis for the claim, that the plaintiff has demanded payment or where applicable possession of the property and that the defendant has refused payment or where applicable, to surrender the property. The claim and the order to appear must then be personally served and a proof of service must be filed with the court clerk. When the claim is filed a hearing date is then scheduled between 15 and 40 days if the defendant resides in the county where the claim is filed (if the defendant resides outside the county where the claim is filed, the hearing is scheduled between 30 and 70 days from the date the claim is filed) and the parties are ordered to appear with their documents and witnesses.
The defendant may file a cross-claim against the plaintiff and it must be served in the same manner as the plaintiff’s claim, within 5 days of the scheduled hearing date, unless the defendant was served less than 10 days before the hearing date in which case the claim and order must be served 1 day before the hearing. Where the defendant’s cross-claim exceeds the $5000 jurisdictional limit and relates to the same contract, transaction, matter or event which is the subject of the plaintiff’s claim, the defendant may commence an action against the plaintiff in superior court and request the small claims court to transfer the small claims court action to that court.
The hearing is informal and typically conducted by a temporary judge to whom the parties must stipulate. Temporary judges are typically lawyers who volunteer their time and are not compensated. If the parties refuse to stipulate to a temporary judge they will be required to go before a regular judge. This could be time consuming and depends on the availability and calendars of other judicial officers. I do recommend that the parties stipulate to the temporary judge. Corporations can appear by an employee. The parties should be prepared to explain their claim or defense to the judge and present witness testimony and documentary evidence. This presentation must be organized and understandable but I do not recommend that it be written or read directly from a document. Be prepared to answer the judge’s questions. No attorneys may take part in the conduct or defense of the claim. The judge may then issue a judgment for damages or other relief. The judgment is automatically stayed and cannot be enforced for a period of 30 days. The judge can order the payment of a money judgment in installments. The prevailing party is entitled to costs for filing and service. The prevailing party is not entitled to recover for the time spent in making or defending the claim.
AN UNSUCCESSFUL PLAINTIFF CANNOT APPEAL.
Only an unsuccessful defendant can appeal to the superior court. Appeals must be filed with the court clerk within 30 days of the date of mailing or delivery of the notice of entry of judgment. Appeals consist of an entirely new hearing and are heard by a temporary judge (to whom the parties can stipulate) or a superior court judge and lawyers can appear. The parties must present their claims and defenses with witnesses and documents. I do NOT recommend that the parties stipulate to a temporary judge for an appeal. The superior court judge can award a party to an appeal reimbursement of attorney’s fees not exceeding $150 and actual loss of earnings and transportation and lodging expenses not exceeding $150 unless it is found that the appeal was without substantial merit and not based on good faith but was intended to harass or delay the other party or to encourage the other party to abandon the claim, in which case up to $1000 for attorney’s fees and up to $1000 expenses can be awarded.
I have acted as a temporary judge on many occasions and I have also appeared as attorney for appealing parties. By and large the proceedings are conducted fairly. But, judging is an art and not a science. The party who prevails is not always the party with the just cause. More often than not, it is the party who best explains a meritorious position that wins. Be prepared and good luck!