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Small Claims

Plaintiff: Things to Consider before You File a Claim
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This section tells you, the plaintiff, about:

1. Do you have a good case?
2. Did you ask for the money?
3. Did you lose money?
4. Do you have proof?
5. Is the law on your side?
6. Did you file your claim in time?
7. Can you collect the Judgment?
8. How can you find out the name and address of the person or business you want to sue?
9. Resources
    

1. Do you have a good case?
   
   Can you present a good case in court? Do you have things to support you claim like:
    
   • Pictures,
   • Photographs,
   • Receipts, or
   • A witness
     
      
2. Did you ask for the money?
   
   Before you can sue in small claims court, have to ask the defendant for whatever you want the judge to award you in court.
   
   Lawyers say you have to make a "demand" on the other person, if possible. You can ask them in writing or by phone, but it's a good idea to do both. Keep copies of any letters or other communication in writing. It's smart to send letters by mail and ask the post office for a return receipt. Keep the receipt as evidence.
   
    
3. Did you lose money?
   
   Think carefully about how much money to ask for. This is called damages. You have to prove to the judge that you deserve the money you ask for. You can only get a judgment for what you can prove. Prove your claim by using:

• Contracts in writing,
• Warranties,
• Receipts,
• Canceled checks,
• Letters,
• Professional estimates of damage,
• Photos,
• Drawings,
• Your statements, and
• Your witness’ testimony.

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As an individual you can use small claims court if your claim is for $7,500 or less. If you are an individual who owns a business (i.e. sole proprietor) and do business under a fictitious business name, you are considered to be an "individual" in small claims court. For example, if you are a plumber doing business as ABC Plumbing and want to sue a customer who has not paid you, you can file a claim for up to $7,500. If your business is a corporation, partnership or anything other than a sole proprietorship, your maximum claim amount is $5,000.

You can't divide a claim into 2 or more claims (called claim splitting) just to avoid the limit.

You can't file more than 2 small claims court actions for more than $2,500 anywhere in California in 1 year. If your claim is worth more than $2,500, check the box on the Plaintiff's Claim and Order to the Defendant that says that you haven’t filed more than 2 cases worth more than $2,500.

If your claim is worth more than the limit, file your case in civil court. You can represent yourself or hire a lawyer in civil court. Or, lower the amount you ask for and give up (or waive) the rest. That way you can keep your claim in small claims court.

Talk to a small claims advisor or a lawyer before you lower the amount you ask for. After the small claims court decides your case, you lose the right to the money you gave up.

 

4. Do you have proof?
   
   Ask for the amount of money you can prove. You can only get a judgment for the amount you can prove, even if the defendant doesn’t show up.
   
   If the case is against a guarantor, the limit is $4,000. A guarantor is someone who takes responsibility for what someone else did or didn’t do. For example, an insurance company that issued a bond for a car dealer or building contractor.
   
    
5. Is the law on your side?
   
   The small claims judge will follow the law. The judge interprets the law and tries to be reasonable and fair to both sides. If the law isn’t on your side, but you think that justice is on your side, it might be better to go to mediation.
   
    
6. Did you file your claim in time?
   
   There is a set time limit to file most claims. This is called a statute of limitations. If you don’t file the claim on time, the judge may dismiss your claim.
   
   Exception: If the statute of limitations was suspended or the time limit extended, the case won’t be dismissed.

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   Here are some examples of statutes of limitations (Code of Civil Procedure CCP 335-349.4):
   
    

   Personal Injury	2 years from the day you were injured. If you don’t discover the injury right away, 2 years from the day you discover it. A minor has 2 years from their 18th birthday to file a case.
   Oral Contract	2 years from the day the contract is broken.
   Written Contract	4 years from the day the contract is broken.
   Government Entity	Before you can sue a government agency, you have to file a written claim with the agency. For personal injury cases and damage to personal property, you have 6 months to file the claim with the government agency. For breach of contract cases and damage to real property, you have 1 year to file the claim. If the agency rejects your, you have 6 months to file after you are rejected. If you don’t file in that time you lose your right to sue.

   The rules for statutes of limitations are complicated. Your case may be an exception. For example, if the defendant lived out of state or was in prison for a while, you may have more time to file your claim.
   For more help, call the Small Claims Advisor (see court phone numbers).
   
    

7. Can you collect the Judgment?
   
   Does the defendant have enough money to pay the judgment?

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8. How can you find out the name and address of the person or business you want to sue?
   
   You can’t enforce your judgment unless you name the defendant correctly. If there are several people who could be defendants and you don’t know who is responsible, name everyone you think should take responsibility. The court will decide if they are legally responsible.
   
   If your case is about a car accident, name the driver and the owner of the car that hit you. You don’t have to name both parties, but you’ll have a better chance of collecting your money.
   
   For example: If the owner and the driver are the same person, write "Joe Smith, owner and driver." If the owner and driver aren’t the same person, write "Lucy Smith, owner, and Betty Smith, driver."
   
   You need the defendant's address because:
    
   • You can contact the defendant to try to settle the case before you file.
   • You can ask the defendant to pay you before you file.
   • You need to give the address to the process server to serve the Plaintiff's Claim and Order to the Defendant (SC - 100).
   • If you win, you need an address so you can send a letter asking to be paid.
     
      
9. Resources
   
   This is a list of places that can help you find the right name and address of the person or business you want to sue:
   
    
   • To find the owner of real property in Santa Clara County:
     
     COUNTY ASSESSOR’S OFFICE
     70 West Hedding Street, 5th Floor, East Wing,
     San Jose, California 95110 (
     408) 299-5500
     Give them the address of the property and ask for the names and addresses of the owners.
     
     COUNTY RECORDER’S OFFICE
     70 West Hedding Street, 1st Floor, West Wing,
     San Jose, California 95110
     (408) 299-2481
     Use the public records in this office to find the names and addresses of the owners of real property as they appear on the deed.
     
      
   • To find out how a business is owned in Santa Clara County:
     
     COUNTY CLERK RECORDER’S OFFICE
     70 West Hedding Street, West Wing,
     San Jose, Ca. 95110
     (They won't give you information over the phone)
     Website: http://www.clerkrecorder.org
     
     1. Look at the microfiche under the business name.
     2. Copy the "certificate number." It's to the left of the business name.
     3. Give the clerk that number.
     4. Ask the clerk for the "Fictitious Business Name Statement."
     5. You can buy a copy of the statement. You'll have to pay a small fee.
     
     If you want information by mail, send a self-addressed stamped envelope and a check or money order to pay the fee.
     
     Or search for a “Fictitious Business Name” at www.clerkrecordersearch.org. Click on the link "Fictitious Business Names" in the lower left side of the page.
     
     Call (408) 299-2160 for more information and to find out how much the fee is.

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   • To get information about contractors:
     
     CONTRACTOR’S STATE LICENSE BOARD
     (408) 277-1244 or (800) 321-CSLB
     
     Give them the Contractor’s name or their business name and license number, if you have it. Ask for the latest information, including the name and address of the contractor’s bonding company and the bond number. You can get this information online at www.cslb.ca.gov.
     
      
   • To find out about Corporate Status and get information about Limited Partnerships:
     
     SECRETARY OF STATE - Corporate Status Unit
     1500 Eleventh Street, Sacramento, California 95814
     To find out how to get copies and how much you have to pay: (916) 657-5448.
     
     Give name and address of the corporation and ask for:
     1) The names and addresses of the corporate officers
     2) The name and address of "Agent for Service of Process"
     
     SECRETARY OF STATE - Limited Partnership Status Unit
     1500 Eleventh Street, Sacramento, California 95814
     To find out how to get copies and how much you have to pay call: (916) 653-3365.
     
     Give them the name of the company. Ask for:
     1. The full name and address of the limited partnership
     2. The name and address of the General Managing Partner
     3. The name and address of the Agent for Service
     
     You can get this information online. Go to the California Business Portal and click on California Business Search at www.ss.ca.gov.
     
      
   • To find out who owns a car repair shop:
     
     BUREAU OF AUTOMOTIVE REPAIR
     (800) 952- 5210
     Give them the name of the business. Ask for the names and addresses of the owners.
     
      
   • For information about a car
     
     STATE OF CALIFORNIA, DEPT. OF MOTOR VEHICLES
     800)777- 0133
     The Department of Motor Vehicles doesn’t give out home addresses to people in lawsuits or process servers anymore.
     Web site: www.dmv.ca.gov

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   • U.S. Post Office
     
     Change of address:
     If the person moved, the post office won’t just give out a person’s new address. You can get a business’ new address for a $3.00 fee. After you file your case, you can get a person or business’ forwarding address so you can serve them. Click here for more information: United States Post Office.
     
     Get records from the Post Office:
     The Post Office will give you the street address of someone who has a P.O. box if they use the box to get or do business. Go to or write the post office where the box is. Show them an ad or some other proof that the box is being used as a business.
     
     The post office will give you the forwarding address or the street address of a P.O. box for a business or a person if you can prove that you need that information to serve a party and that you’ll only use it to do this. Go to or write the post office where that box is and fill out a form. Or write them a letter asking for the information. The letter should say:
      
     • Your name and address.
     • The box holder’s name.
     • The P.O. box number.
     • The zip code.
     • That you're representing yourself in a lawsuit.
     • The name of the court.
     • The title of the case.
     • The case number.
     • A short description of what the case is about.
     • The names of all the other parties in the case.
     • The box holder is a party in the case, a defendant or the person who lost the case.
     • The information will only be used to serve a court paper (for example, Service of Process or Order to Appear for Examination).
     • The citation of the law (for a Service of Process, CCP Section 116.340, and for an Order to Appear for Examination, CCP Section 708.110). See Post Office Manual Section 352.44, sub. [e] to find the citation for your case.

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   • Find a business through the City Clerk's Office:
     
     The tax and permit division of the city clerk's office, has a list of names and addresses for most of the people who have a business license in a city. Find the address and phone number of the city clerk's office in the Government Pages of your phone book. It's usually in the city section under "Clerk." Here is a list of some of the cities in Santa Clara County that will give you the name of the owner over the phone:
     
      

     Campbell (408) 866-2100	Cupertino (408) 777-3200	Gilroy (408) 846-0221
     Milpitas (408) 586-3100	Morgan Hill (408) 779-7237	Los Altos (650) 948-1491
     Mt. View (650) 902-6317	Saratoga (408) 868-1260	Sunnyvale (408) 730-7620

     
                                                                                                                                                                          
      
   • Other Ways to Get the Names of Business Owners Names:
     
      

     Los Gatos	Go to the Town Clerk’s Office in person, 110 E. Main Street. Get a form called “Request For Records”.
     Santa Clara	Send a request by mail, with a self-addressed, stamped envelope and a check for $5.00 to the City of Santa Clara-Business Tax Division, 1500 Warburton Ave., Santa Clara, Ca. 95050

     
      

   • To Find Out the Names of a Corporation's Directors and their Agents for Service of Process
     
     The Secretary of State keeps a record of the names and addresses of the officers of corporations and their agents for service of process. These are the people you can serve with the claim. To find out how to get this information, call (916) 657-5448 (recorded message).
     
     Or, download instructions and an order form from www.ss.ca.gov/business/business.htm.
     
     The Secretary of State will fax you the information. You’ll have to pay extra.

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   • The Internet
     
     There are a lot of ways to find people or businesses on the Internet. Most browsers can look for a person’s name. There are also reverse directories online. This means that if you have an address you can find out the name of the person or business. Most of the regulatory agencies have websites with a list of the people they license. Internet resources change all the time. Try search engines on the Internet.