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How to Prepare and File Your Claim


Before you start this section, print the checklist and forms discussed in GETTING STARTED.

Have the Plaintiff’s Statement Worksheet ready to use as a worksheet.

How to Name a Defendant
It is very important to name the Defendant correctly, because you will only be able to collect from the party or parties whose name is exactly the same as the name that appears on your claim.

If you are suing an individual, write his or her first name, middle initial and last name.

If you are suing a company owned by one person, you must write both the owner and the company name. You should also name the owner as the individual to increase your chances of collecting if you win. Write the letters DBA which stands for "Doing Business As" between the name of the owner and the company name, if the owner is doing business under a fictitious name. For example, you would write John J. Doe, individual & dba John’s Fashions.

If you are suing a husband and wife, write both of their full names. For example, James J. Doe and Jane E. Doe. If you don’t know the wife’s first name, write James J. Doe and Mrs. James J. Doe.

If you are suing a partnership, it’s a good idea to name both the partnership and the partners as individuals as well. For example, you would write James J. Doe, individual and John A. Smith, individual & dba Doe & Smith. If you win your case, you will be entitled to collect from either the partnership or the individual partners.

If you are suing a corporation, write the exact name of the corporation, as in the following example:

Jane’s Fashions, a corporation
or
Jane’s Fashions, Inc.


If a corporation owns a division or subsidiary it should be designated. For example:

"United Automotive, Inc" dba "Southwest Auto Sales Company"


You do NOT name an individual when suing a corporation. Just the corporation is named. If you wish the Court to serve your defendant by certified mail, they will need the name of a corporate officer or agent for service.

If you are suing as a result of a vehicle accident, you must name both the registered owner and the driver. If the owner and driver are the same person write, for example, James J. Doe, owner and driver. If the owner and driver are not the same you would, for example, write James J, Doe, owner and Ellen Jones, driver.

A company name by itself does not completely identify a party, and an incomplete or incorrect designation of a party may result in problems in collecting or otherwise enforcing your small claims judgment

Complete the multi-part form by typing in the party information and answering items 1 through 8. Date and sign the form where indicated.

If applicable, review and complete the Fictitious Business Name Declaration (SC-103).

All forms presented to the Court for filing must be typed or printed in black or blue ink.

Determine what type of service you are going to use, See How to Serve Your Claim. If you decide to have the Small Claims Clerk proceed with Certified mail then include the additional service fee for each defendant you wish to have served. The filing fee and any service fee(s) must be paid at the time the claim is presented to the Small Claims clerk.

Mail or bring in the completed forms to the Monterey Small Claims Court only. See Locations for addresses.
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How to Serve Your Claim


The person or business you are suing is called the Defendant. Before your case can be heard in Small Claims Court, each Defendant must receive a copy of your claim. This is called "serving" the Defendant or "service". The Defendant must be served within the State of California. There are 2 exceptions:
  1. If your complaint involves real property owned by a Defendant who lives outside the state of California or
  2. A car accident where the owner or operator of the motor vehicle involved in an accident is an out of state resident. Contact the Small Claims Advisor for service instructions.
If the Defendant is a corporation, check to see if the Defendant maintains an agent for service in California by contacting the Secretary of State (916) 653-7315.
The Defendant must be served within explicit time limits. The Defendant must be served at least 15 days before the trial date if the Defendant is located in Monterey County, or at least 20 days before the trial date if the Defendant is located outside of Monterey County.

You may NOT serve the claim yourself.
The Defendant can be served in one of the following ways:
  1. By Certified Mail:
    Only the Small Claims Clerk can serve the claim this way. There is an additional fee for each defendant you wish to have served and must provide an addressed envelope for each defendant. Service is completed when the receipt, signed by the Defendant is returned to the Clerk. If the Defendant refuses to sign, service is not considered complete. The Postal Service can not force the Defendant to sign for the letter.
  2. By Personal Service:
    Any person who is 18 years old or older, and who is NOT a party to the claim, can serve the claim. A witness is generally considered a party to the claim.
  3. By Substituted Service:
    If you can’t find the party you must serve at his or her home or place of business, you can use substituted service to serve the claim. Substituted service must be performed by the sheriff or by someone who is at least 18 years old and who is not a party to the case.

    Substituted service is accomplished by leaving a copy of the claim at the defendant’s office with a person who appears to be in charge, or at his home with someone who is at least 18 years old. The person who is given the claim must be told what it is.

    A copy of the claim must be mailed by first class mail to the defendant at the address where the claim was left. The copy of the claim must be mailed to the defendant at least 20 days before the hearing if the defendant resides in Monterey County, or 25 days before the hearing if the defendant resides outside of the county in order for the substituted service to be complete.
    The claim is considered served 10 days after the copy is mailed

    Proof of service must be filed with the small claims court clerk.

  4. By a registered Process Server:
    They are listed in the consumer yellow pages of you telephone book.

  5. By a Sheriff:
    To obtain instructions from the Monterey County Sheriff’s office please call (831) 755-3712.
The person who serves the Defendant must file a proof of service form with the Small Claims Clerk before the trial. The Proof of Service (SC-104) is available on the judicial Councrl web site. See Small Claims Forms. In the Monterey County Court, the proof of service must be filed at least 2 days prior to the trial.

The Defendant need not accept or touch the claim in order to be served. Once the Defendant has been correctly identified, the claim can be dropped at his or her feet.

Who to Serve

A copy of the claim must be delivered to each person or business being sued. This is called serving the defendant or defendants.

If you are suing an individual, serve the person you are suing. If you are suing more than one individual, such as, for example, the registered owner and the driver of a car involved in an accident, serve each person you are suing.

If you are suing a single-owner business, serve the owner

If you are suing a partnership under it’s business name, serve one of the partners. If you are suing a partnership under it’s business name and the partners individually, serve each partner. If you are suing a general partnership, serve the general partner, general manager or the agent for service, if there is one.

If you are suing a corporation, serve a corporate officer or the agent for service. To find out the names and addresses of the officers or the agent for service, call the Secretary of State’s office at (916) 657-5448 for instructions. Also try their web site http://www.ss.ca.gov/

If you are suing the county in general, serve the Risk Management Department. The Risk Management Department is located at 240 Church Street, Salinas, CA 93901.

Reminder: You must pursue the proper administrative procedures with the respective public or governmental agency prior to filing a small claims case. A written rejection of the administrative claim must be presented to the clerk when filing your claim.

If you are suing the state, the State Attorney General’s office accepts service for Cal Trans, California Highway Patrol, and most Consumer Affairs Boards and Bureaus. Their mailing address is P.O. Box 944255, Sacramento, CA 94244. Call the Attorney General’s office at 1-800-952-5225 for more information.

You may not sue the Federal government in small claims court.

If you are suing your landlord, and the manager of your apartment building rented the apartment to you and won’t tell you where the landlord lives, you can serve the manager. To locate the name and addresses of the owners, you may go to the Tax Collector’s office. Give the address of the property to the clerk and they will be able to give you this information.

The person that serves the Defendant(s) must file a proof of service form with the Small Claims Clerk at least two (2) days prior to the trial. Otherwise, service is not considered complete and the trial will not proceed. If a process server serves the claim, the server will usually file the proof of service.


How to Locate a Person or Business

Locating a Person:

If you are having trouble finding the person you wanted to sue or who owes you money, you may find the following information helpful in locating them.

If the person has moved, address a letter to him at his or her last known address. Several spaces below your return address write, "Address Correction Requested. Do Not Forward". The letter will be returned to you with the new address, if one is on file

If the person you are seeking owns property, try the Monterey County Clerk/Recorder’s Office. The County Clerk/Recorder’s Office maintains a listing of property owners by name and lists the location of the property owned. The Monterey County Clerk/Recorder’s Office is located at 240 Church Street, West Wing, Salinas, CA. The phone number is (831) 755-5041. Contact them for instructions and fees.

If the only information you have concerning the other party is a telephone number, and the number is one that is listed, the Reverse Directory will provide the address. Reverse Directories are usually available at the main libraries.

Locating a Business:

If the only address you have is a post box, you can request the name, street address and phone number of the holder of a post office box that is used for business purposes from the post office. Bring proof that the box is used for business purposes.

Locating a Corporation or Limited Partnership:

Contact the Secretary of State at (916) 657-5448 for instructions on receiving information on names and addresses of the officers of corporations, general or managing partner and their agents for service. Also try their web site http://www.ss.ca.gov/

Locating a Sole Proprietorship and Partnership:

The County Clerk/Recorder’s Office maintains a listing of fictitious business statements. The statement lists the names and addresses of the owners of businesses operating under a name different from the owners. Contact the County Clerk/Recorder’s Office for instructions and fees. The Monterey County Clerk/Recorder’s Office is located at 240 Church Street, West Wing, Salinas, CA. The phone number is (831) 755-5450.

The City Clerk’s office, tax and permit division, usually maintain a list of the names and addresses of most persons licensed to do business in a city.

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How to Prepare and Present Your Case.

Your hearing will take place in a courtroom with many people who have been scheduled for that day. A Small Claims Court commissioner or a pro tem (temporary) judge will hear your case. A pro tem judge is an attorney who volunteers his or her time to hear and decide cases. Both the commissioner and the pro tem judge have all the responsibilities and powers of a judge. The judge or pro tem judge is likely to ask that the parties first try to settle. If a pro tem judge is taking the place of the regular judge that day you will be asked to sign a paper indicating your willingness to have him or her decide your case or, if you are not willing to stipulate to having a pro tem judge hear your case, to come back another time.

When your name is called, you and the other party in your case will move to the front of the room and tell your stories to the judge. Small claims cases usually take no more than 5 to 10 minutes. Therefore, it is very important that you plan ahead of time what you will say. Your story should be well organized and to the point. Do not go off on tangents, include too many details or be repetitious. Stay calm and polite.

If you are the person suing (the Plaintiff), you will speak first. Although everyone swears to tell the truth under penalty of perjury, don’t count on the other party admitting fault. It is up to you to PROVE your case.

Telling a story in court is not like telling it to a friend. When you talk to a friend, you often start at the beginning, build up some suspense and finish with a punchline. In court you do the opposite. You want the judge to know as soon as possible why you are there. Your Opening Statement should summarize the nature of your claim and the damages you have suffered as a result of injury, breach of contract, violation of a right, etc. For example: why the other person is at fault through intentional or negligent behavior and why you did not contribute substantially to the loss.

In a case of breach of contract you might say, "Your honor, this is a matter of a painter who did not carry out his contract to paint my house in Monterey after I paid him the full amount of $2,500 on February 1, 1998". Or, in a landlord tenant dispute, "Your Honor, this is a case of a security deposit of $600 which has not been returned to me although I moved out on January 1, 1998 with proper notice and left the place clean and with no damage".

Briefly give the facts, usually in chronological order.Group facts together. Instead of reciting all the dates you brought your back for repairs, say "In the 6 months between January and June of 1998, I took the car in 14 times and each time he did not adjust the carburetor."

Decide what the main points and issues are and stick to those in telling your story, referring to evidence that supports your position.Evidence can include copies of contracts, estimates (you should have at least 2 for car repair and similar disputes), bills, photographs, diagrams (important for auto accidents), police reports, etc. If you need documents that are not in your possession, you can request them through a Subpoena Duces Tecum. This is a form you get from the Clerk, which you serve on the party who has the documents. Be selective. You don’t want to overwhelm the judge with either the number or complexity of your materials.

You may also bring witnesses, either someone who has first-hand knowledge of the facts (he/she saw the accident) or is an expert on the subject (the mechanic who examined your car after it was towed). Avoid bringing friends or relatives (the judge may think they are only trying to help you) and be sure you know what to expect from your witnesses. It is not a good idea to subpoena a "hostile" witness; your defendant’s girlfriend who saw him hit you, may surprise you with her testimony or the mechanic who is worried about his job, may change his story in court.

In planning what to say, try to anticipate and be prepared to refute what the other party will bring up. In addition to explaining how the other party was at fault, you should be able to show how your own behavior was not also responsible, that you tried to minimize the loss or, if you are the defendant, that the person suing you did not do his/her best to reduce the extent of his/her loss. Example: "When I broke my lease by moving out 3 months early, the landlord did not even try to rent the apartment to anyone else".

If you cannot express yourself in English, you should bring someone who can. The court does not provide an interpreter and you will want to be sure the judge fully understands your story. If you bring a friend or relative to interpret, they must interpret your words, not tell the story for you. If you know you will be very nervous and likely to leave out important facts, briefly summarize your case in writing and ask the judge to allow you to submit it before you tell your story. Be sure to have a copy for the other side.

You can refer to any specific laws that relate to your case and may even present information you have received from a consultation with an attorney. Remember though, that you are not supposed to be a lawyer and it is not necessary to act like one.

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How to Prepare and Present Your Case

If you believe the party suing you owes you money you can countersue by filing Judicial Council form "Defendant’s Claim and Order to Plaintiff". Both cases will be heard at the same time.

If your claim is for $7500 or less ($2,500 or less if you are suing a guarantor) obtain a "Defendant’s Claim" form from the Small Claims Clerk in the court where you are being sued or see SMALL CLAIMS FORMS. The claim must be filed with the Clerk together with the respective filing fee. See Court fee schedule

You must notify the other party that you are suing by having a copy of the Claim of Defendant served on them at least 5 days before the trial date. However, if you were served with the Plaintiff's claim ten (10) days or less before the trial date, you can serve the defendant's claim at least one day before the trial date. You cannot serve the Claim of Defendant yourself.

If your counter claim exceeds the jurisdictional limit of the Small Claims Court and you want your case to be heard in the Civil Division of the Superior Court, you must first file a Summons and Complaint in that Division. You will need to bring to the Small Claims Clerk a copy of the Civil Complaint, a copy of the Proof of Service, a Declaration, a Request and Order for Consolidation along with the appropriate transfer fee. The Request and Order will be submitted to the Commissioner for approval.

Upon receipt of the above described documents, the Small Claims Court will transfer its file to the Superior Court. In this manner, both the plaintiff's and defendant's claims may be heard together.

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How to Appeal a Judgment

An appeal of a Small Claims Court judgment is a request to the Superior Court to reverse the decision of the Small Claims Court by having the case heard again. A Plaintiff does not have the right to appeal a small claims judgment except in certain circumstances.

The rule to remember is if you lose on your own claim, you cannot appeal, but if you lose on the other party's claim, you can appeal. It is especially important to remember this when a claim of defendant is filed. In that case, the original Defendant is acting as Plaintiff and cannot appeal if he or she loses on the claim of defendant.

An insurer of the defendant may also appeal the judgment if the judgment exceeds $2500 and its policy with the Defendant covers the matter to which the judgment applies.

An appeal of the small claims judgment must be filed within 30 calendar days of the date of the Small Claims decision or, if the decision is mailed to you, within 30 days of the date the clerk mails the Notice of Entry of judgment. The date will appear on the form you receive.

To file the appeal, get a "Notice of Filing Notice of Appeal" form from the Small Claims clerk. Fill it out and file it with the Small Claims clerk. Check the courts fee schedule for the most current fee.

The case is heard in Superior Court and is treated as a new case. All the evidence and witnesses must be presented again.

On appeal, the claim is heard for the original amount. For example, if you were sued for $1,000 in Small Claims Court and the judgment against you was for $500, on an appeal the judge has the right to award the full $1,000 to the plaintiff if you lose.

While the case is being appealed, the defendant does not have to pay the Small Claims Court judgment.

If the Defendant loses the appeal, the Defendant must pay the Plaintiff the amount of the judgment plus interest and costs; examples of costs are any earnings you can prove you lost or any money you actually paid for transportation and lodging in connection with the appeal. The Defendant may also have to pay attorney's fees up to $150.00.

If the court finds that the appeal was intended to harass or delay the Plaintiff, or to encourage the Plaintiff to abandon the claim, the court may award the plaintiff attorney fees of up to $1,000.00 and any actual lost earnings. The court may, if it wishes, award the cost of lodging and transportation incurred in connection with the appeal up to $1,000.00, following a hearing on the matter.

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How to Change a Hearing Date or Claim

If the claim has been served on all Defendants –

A continuance is a request to postpone a court date. If the defendant(s) have been served you may use the Application for Postponement of Trial Date (Judicial Council Form SC-150). Once the application is received, with appropriate fee, it will be submitted to the judge. Only the judge may grant the continuance request.

The application must be mailed or brought in, to the Small Claims Clerk’s office at least 10 days before the scheduled hearing date. A check made payable to the court must also be included. If the application is granted, the hearing will be postponed for at least 15 days. Notice of the new date will be mailed to all parties.

If you do not have enough time before your hearing date to write for a continuance, you should either appear in court as scheduled and ask for a continuance, or bring a written statement explaining why you need a new court date to the Small Claims Clerk’s office and ask to have it attached to your case file. There is a fee for this service.

If you have been unable to serve all or some of the Defendants –

Contact the Small Claims clerk for instructions.

How to Change or Amend a Claim

You can change or amend a party name before hearing on a claim that has already been filed in Small Claims Court in the following ways:

If your claim has not been served, file and serve an "amended" claim to correct the parties' names (Judicial Coucil Form SC-100 or SC-120) or dismiss (without prejudice) your claim and start over by filing a new claim, as long as the statue of limitations on your claim has not run out. A new filing fee will be charged.

If your claim has been served, complete the Judicial Council form REQUEST TO AMEND CLAIM BEFORE HEARING (SC-114), a copy of this request must be mailed or personally delivered to each of the other parties in the case. A decision on your request to amend your claim will be made at the hearing. The judge or commissioner can grant or deny your request or continue the hearing.

To delete one or more Defendants: Use the dismissal form you received with your claim. Be sure to indicate that you are dismissing the case only against one or more defendant (you will list each defendant’s name that you want dismissed from the case). You do not have to notify the remaining Defendants of the dismissal.

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How to Collect a Judgment

You will have to collect your money yourself if you win in Small Claims Court. The court will not collect it for you. You must wait at least 30 days before attempting to collect. The 30 days starts from the date of the decision (if the defendant appeared in court) or the mailing date of the Notice of Entry of Judgment if you have a Default Judgment or the decision was mailed to you. You will need to check with the county Sheriff in the appropriate county to see if they still serve Writs of Execution. If not, you will need to employ a process server who will serve the writ. If the 30th day falls on a weekend or holiday they have one additional "workday" to file their appeal. The judgment is good for 10 years and can be renewed. You are entitled to interest, at 10 percent per annum, beginning with the date of the Entry of judgment, and payment for some of your costs in collecting the judgment.

To add your costs to the judgment, ask the Clerk in the Small Claims Office for a Memorandum of Costs and Credits form. Fill it out and return it to the clerk. After you collect your judgment, your must file a Satisfaction of Judgment form with the Clerk.

The following are some things you can do to try to collect if the person who owes you money, called the judgment debtor, refuses to pay:

  1. Garnish the Debtor's Wages: A wage garnishment orders the debtor's employer to give you part of the debtor's wages until the debt is paid.
    To garnish wages, complete a Writ of Execution form (EJ-130) and bring it to the Small Claims Clerk to issue. See SMALL CLAIMS FORMS for the link to the Judicial Council web site. The "Writ" must then be delivered to the Monterey County Sheriff or a process server for service. There is a fee for the clerk to issue the "Writ" and an additional fee charged by the Sheriff or process server.

  2. Levy upon the Debtor's Bank Account: This means that money will be taken from the debtor's bank account to pay the judgment. You will need the name, address and branch of the bank.

    To levy a bank account, complete a Writ of Execution form (EJ-130) and bring it to the Small Claims Clerk to issue. See SMALL CLAIMS FORMS for the link to the Judicial Council web site. The "Writ" must then be delivered to the Monterey County Sheriff or a process server for service. There is a fee for the clerk to issue the "Writ" and an additional fee charged by the Sheriff or process server.

  3. Record an Abstract of Judgment: An "Abstract of Judgment" puts a lien on any land, house or other buildings the debtor owns in the county where the abstract is recorded. Record the abstract in all counties where the debtor may own property. If the property is sold, the debt will be paid out of the proceeds of the sale.

    An Abstract of Judgment will also put a lien on property the debtor may buy in the future and prevent the debtor from refinancing any property until the debt is paid.

    To record an Abstract of judgment, complete an Abstract of Judgment form and bring it to the Small Claims Clerk to issue. There is a fee. See SMALL CLAIMS FORMS . Take the "Abstract" to the County Recorder's office to record. There is an additional fee at the Recorder’s office.

    The Monterey County Clerk/Recorder’s office is located at 240 Church Street, West Wing, Salinas, CA

There are also some other ways to try and collect judgments:

  1. Hold a Judgment Debtor Hearing: A judgment debtor hearing requires the debtor to come to court and answer your questions about his salary, bank accounts, property and anything else that could be used to pay the judgment. If you wish, you can subpoena bank books, property deeds, paycheck stubs, etc., before you hold the hearing. You will need a Subpoena Duces Tecum. You can pick up the form from the Small Claims clerk.

    To set a Hearing, complete the "Order of Examination" form (EJ-125). See SMALL CLAIMS FORMS for the link to the Judicial Council web site. There is a fee. You will take the Order of Examination to the Monterey County Sheriff or a process server to have the judgment debtor served. The Sheriff or process server will also charge a fee. The debtor must be within 150 miles of the Court.

  2. Suspend Debtor's Driver's License: If you won a judgment for $500 or less in an auto accident case, and the judgment is not paid within 90 days after the judgment becomes final, you can have the debtor's driver's license suspended for 90 days. Get form DL 17 from the DMV. There is a fee.

  3. Contact the Monterey County Sheriff’s Department, Civil Division, for information on any other collection programs that they may offer and the fees involved. The phone number is (831) 755-3712.
  4. Addition

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How to Vacate a Default Judgment

A Default Judgment means that the court has decided that you owe money to a person or business that sued you, even though you were not in court to tell your side of the story.

You cannot appeal this kind of judgment and have a new trial until you "vacate the default judgment", that is until you have the judgment removed or erased.

To vacate a Default Judgment:

  1. Get the form called "Notice of Motion to Vacate Judgment" from the Small Claims clerk.
  2. Fill the form out and file it with the Small Claims Clerk together with the filing fee. You must do this within 30 days from the date the Notice of Entry of Judgment was mailed from the court. You should have a good reason for not having appeared in court when you were supposed to.

If the reason you did not go to court was because you were not served with a copy of the claim, you have up to 180 days after you find out about the Default Judgment against you to file the Notice of Motion to Vacate Judgment form.

When you file the form, the Small Claims clerk will set a date on which you and the person suing you are to appear in court. The judge will decide to vacate the judgment against you or not.

Bring whatever evidence you can to the hearing to show why you were unable to come to court the first time. An example of what to bring might be a letter from a doctor or a hospital bill.

If the judge agrees to vacate the judgment, the original case will probably be heard right then. Be prepared to tell your side of the story and present your evidence in an organized and concise manner at that time.

If you have witnesses to help your case who could not be present, you can ask the judge for a continuance. The judge may or may not grant the continuance.

Appeal – If the Motion to Vacate the Judgment is denied

If the judge decides not to vacate the judgment, you can only appeal the judge's denial of the Motion to Vacate. You cannot appeal the judgment against you. You must file the appeal within 10 days of the judge's decision

To file the appeal, get a "Notice of Filing Notice of Appeal" form from the Small Claims clerk or online through the Judicial Council website. Fill it out and file it with the Small Claims clerk; a fee is required at the time the appeal is filed with the Small Claims clerk. See How to Appeal a Judgment for more information about appeals.

If the judge decides not to grant your appeal and not to vacate the judgment, you are responsible for paying the judgment.

If the judge does grant your appeal and vacates the judgment, the original case will usually be heard right then. Be prepared to present your case, including any evidence you have, at the time of the hearing. Remember, your case will only be heard if the judge grants your appeal.

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Additional Information on Specific Topics

The California Small Claims Court Information Center provides general information on Small Claims topics. Go to http://www.courts.ca.gov/selfhelp-smallclaims.htm for general information. If you have a question about a specific case in Monterey County contact the Monterey County Small Claims Advisor or the Monterey County Small Claims Court.


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