Chapter 1 of our Small Claims, Big Impact series focused on some of the basics of small claims court. This chapter will focus on the person doing the suing – the plaintiff.*
Don’t Be Late!
As you might expect, courts impose deadlines for filing a lawsuit. These deadlines – known as statutes of limitations – can be very strict. The clock on the statute of limitations starts ticking once you learn (or reasonably could have learned) of your injury. For example, if you have a breach of contract claim because your client failed to pay you, the clock starts ticking the day that the client was required to pay, but did not.
The general rule is that you should file your lawsuit as soon as possible. If you fail, you may be permanently barred from bringing your claims.
Small claims cases typically revolve around breaches of contract, property damage, and personal injury. Claims based on a written contract have a four-year statute of limitations, while claims based on an oral agreement (a non-written contract) have a two-year statute of limitations. Property damage claims have a three-year limit, and personal injury claims have a two-year statute of limitations. Of course, many of these rules come with their own exceptions and nuances, so be sure to act quickly if you think you have a case. When in doubt, ask a lawyer.
Demand Payment Before You File
Before you start filling out and filing paperwork, you should formally request payment and let the other side know that if you do not receive payment, you plan to file a lawsuit. This is often referred to as a “demand letter.”
A demand letter makes sense for two reasons: First, people do not like getting sued, and a strongly worded letter threatening a lawsuit often settles the issue without making you go to court. Second, you must disclose to the court whether you demanded payment before filing your lawsuit. If you do not, you will have to explain why to the judge.
Since demand letters often end up in front of judges, make sure your letter is professional, clearly lays out why the money is owed, and demands payment by a specific date.
Once you have determined you have a claim and your demand for payment has been rejected—or ignored—you’re ready to file your lawsuit. Thankfully, California simplifies this process by consolidating all the forms you need here. Each form has a form number and a name. Throughout this series, we’ll try to refer to both.
Start Complaining (On Paper, Not In Person)
The first form you must file is your Complaint. In California, that is form number SC-100, and it is called the “Plaintiff’s Claim and ORDER to Go to Small Claims Court.” As you’ll see, it’s a pretty basic form. It will ask you to provide the name(s) of the defendant(s), the amount you are owed, and a short statement of facts. You will also need to disclose whether you tried to settle the claim prior to filing suit, such as with the demand letter. If you did not first try to settle the claim, you will have to explain why.
To the extent your claims involve documents like receipts, photographs, or contracts, feel free to make copies and attach them to your Complaint, but do NOT file the originals, as you may need them later.
One of the surprisingly difficult parts of filing a lawsuit is making sure you properly name the defendant. If you are suing an individual, provide the person’s full name (if you know the middle initial, include that). If you are suing an individual and his/her business, provide that person’s name and the name of the business. If you’re suing only a business, you typically would not name any individuals, and instead list the exact name of the business, including its corporate structure (LLC, Inc., Co., Company, etc.) Lastly, if your lawsuit involves a car accident, be sure to name the driver and the registered owner of the vehicle, even if they are not the same person. Properly naming the defendant is critical, so if you have any questions, be sure to ask an attorney.
Once you have your complaint filled out, make two copies (the original goes to the court, so one copy is for you to keep, and the other is to serve on the defendant) and head to the courthouse to file.
In law school, entire classes are devoted to where to file your lawsuit. To spare you a long lecture, here are four simple instructions to make sure you file your case in the right courthouse. First, open a map of California. Second, find the county in which one of the defendant(s) lives or where one of the defendant businesses is located. Third, go to that county’s Superior Court website and find the closest small claims courthouse to that defendant. Fourth, file your lawsuit at that courthouse.
File, Pay, Serve
Once you arrive at the courthouse, head to the filing window for small claims cases, give the clerk the original and both copies of your Complaint, and pay the filing fee (the amount differs for each county and may also differ depending on the amount you are demanding in your Complaint).
You will then need to decide how you will serve the defendant. This is known as “Service of Process,” and that phrase is legalese for “give the defendant a copy of your complaint.” This area of the law can also be incredibly complicated, with numerous alternative methods of service and exceptions. However, for small claims, we recommend using the services of a local Sheriff to personally serve the defendant (i.e., physically hand your Complaint to the defendant).
Sheriffs are armed and they have badges, which means they are often given access to private property and are less likely to be avoided by the party being served. While you could rely on a friend or a professional process server, the Sheriff route is the most cost-effective and the least likely to unnecessarily escalate the dispute.
The easiest way to find a Sheriff is to go to the office located at, or near, the courthouse where you filed the lawsuit. If the courthouse office is closed or the sheriff is otherwise unavailable, then just go to the branch office closest to where the defendant lives.
Most Sheriff’s offices have forms where you can provide basic instructions, descriptions, and pay the required fees (typically around $40-$50, but it could be more depending on the office). After the defendants has been served, the Sheriff will mail a Certificate of Service (form number SC-104) to the Court and a Notice of Service to you. Once that happens, you’re done with this part of the litigation, and you can begin to prepare for the hearing.
In a future installment, we’ll get into details about how the hearing works and will provide tips for how best to prepare. But before we do that, our next chapter will focus on what you should do if you are sued in small claims court.
* The contents of this blog post are informational only, and do not constitute legal advice. Additionally, because we are California lawyers, it focuses primarily on California.