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Small Claims Court Review for Volunteer Attorneys

 Gary M. Baum  Law Offices of Gary M. Baum  [email protected]

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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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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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 1950.5.

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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.