USING SMALL CLAIMS COURT
FOR DISCRIMINATION BY PRIVATE BUSINESSES

This document is written to help Californians with disabilities to use small claims courts when they experience discrimination by private businesses such as hotels, restaurants, stores and offices. The law refers to these business establishments that provide goods and services to the public as “places of public accommodation. Sometimes, businesses may deny you their goods and services because you have a disability. If that happens, you can take the business to court and make it pay you money damages. Small claims courts can be very helpful to you in those situations. These courts are less expensive and easier to use than state of federal courts, and you won’t need an attorney.

In this document, we explain the laws that protect you and how you can use small claims courts. We also give you the forms you need to file your claim as well as other resources you may find useful. Some courts use forms that are different from the official forms. Always check with the small claims court advisor in your county for the forms you must use.

CALIFORNIA LAW

1. I think I’ve been discriminated against by a public accommodation such as a restaurant, hotel or store because of my disability. What can I do?

Individuals with disabilities are protected from discrimination in places open to the public by three California laws: Civil Codes sections 51, 54.1, and 54.2. If you think you were discriminated against by such a place, either by its owner or one of its employees, you can sue that individual and the business.

California Civil Code section 51 is the Unruh Civil Rights Act (the Unruh Act). This law makes “all business establishments of every kind whatsoever” liable for treating you in an inferior manner because of your disability.

California Civil Code section 54.1 protects your right to full and free access, as other members of general public, to accommodations, advantages and facilities of places that are open to the public. Section 54.1 lists some examples of such places including medical facilities (hospitals, clinics and physicians’ offices), all common carriers (airplanes, railroad trains, motorbuses and boats), hotels, private schools, telephone facilities, adoption agencies, and amusement or resort places. The Unruh Act and section 54.1 are very similar.

Finally, the third statute, California Civil Code section 54.2, says that you have the right to be accompanied by a service dog in places open to the public. The dog should be specially trained for the purpose of being a guide, signal or service dog.

2. How do I know if the place where I had problems is a “place of public accommodation”?

Under California law, places of public accommodation are businesses that are open to the public and provide goods and services. Therefore, if the business is (1) open to the general public, and (2) deals with buying or selling, it is probably a public accommodation in California. Some examples of public accommodations are: health clubs, restaurants, retail stores, cruise ships, automatic teller machines, hotels, theaters, hospitals, doctors’ offices, gas stations and law offices.

3. How do I know if I was discriminated against?

Discrimination happens when something or someone from a business stops you from going there or from using its goods and services because of your disability. Physical barriers, inaccessible paths and doorways and refusing to serve or help you because you have a disability are all forms of discrimination. Simply put, you have a right to be treated the same as others. This means businesses must make available to you the same goods, services, facilities and privileges they provide to the public. For example, assume that you are a wheelchair user attending a conference that offers a dance party. The dance hall is up several stairs and there is no ramp or elevator to the hall. A court may find that the conference organizers have discriminated against you on the basis of your disability because they held the dance party at a place that was inaccessible to you.

4. Can I file a claim for discrimination against a public accommodation in small claims court?

Yes. You can file a discrimination claim in small claims court against a business for violating the state laws mentioned already. Examples of situations that violate these laws can be found in the SAMPLE COMPLAINT in Appendix B-1 to B-5. If your experience with discrimination fits any of these examples, then you can sue for up to $5,000 in monetary damages in small claims court.

5. What can I ask for in small claims court?

You can ask the court for a monetary award equal to three times the amount of your actual loss, or $1,000, whichever is greater. This means if you experience discrimination, the court will award you at least $1,000. The rule applies the same for the Unruh Act, section 54.1 and section 54.2, except that the court will award you a minimum of $4,000 under this law. In small claims court, the maximum amount a judge can award is $5.000. If you seek damages greater than $5.000, you can file your suit in municipal or superior court. If you sue in state or federal court, you can also ask for your attorney’s fees. You can file separate claims against a business for violating the three California laws but you can only obtain one award. California Civil Code section 54.2 (c).

You cannot ask for an injunction in a small claims court. An injunction is a court order requiring someone to do something or stop doing something. For example, the court may order the business to:

· Make its premises physically accessible;

· Provide disability awareness training to its employees;

· Provide personal assistance to its customers with disabilities; or

· End a discriminatory practice and/or policy.

Small claims courts do not have jurisdiction to issue injunctions. If you want an injunction in addition to your monetary award, you must file your lawsuit in either state or federal court.

6. How much time do I have to go to court if I think that a business has discriminated against me because of my disability?

You must file a lawsuit in small claims court within one year from the date you were discriminated against. The one-year period is suspended:

· If the defendant is out of state at the time the discrimination occurred;

· While you are under 18 years of age; or

· If you are in jail or mentally incompetent when the discrimination occurred.

THE ADA

7. Can I sue in small claims court for violations of the ADA?

Yes, but only under a state law. The Americans with Disabilities Act (ADA) is a federal law. In small claims court, you can only sue for violations of state law like the ones we have talked about already. But sometimes the state law incorporates the federal law. That means state law allows you to sue for violations of a federal law. This is the case with the ADA. The California laws described above allow you to sue for ADA violations under those laws. Since the ADA is very specific on what counts as discrimination, you should be very familiar with this law and its provisions. We give an overview of the ADA in this document. For more information on the ADA, you can contact PAI and ask for the following publication: ADA - A Comprehensive Overview, Publication # 5097.01.

8. What actions are illegal under the ADA?

The purpose of the ADA is to ensure that individuals with disabilities enjoy the same opportunities as others. This means you have a right to receive the same things in the same manner and to the same extent as others. In the ADA’s words, a place of public accommodation may not discriminate against you on the basis of disability in the full and equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations. 42 U.S.C. section 12182(a); 28 C.F.R. section 36.201(a).

The ADA also says businesses cannot offer you goods and services or make you use facilities that are different or separate from what they provide to others. The only exception is those rare situations when such action is necessary to ensure that you will receive goods and services that are as effective as those provided to others. 28 C.F.R. section 36.202 (c).

Finally, a business cannot indirectly do what it is barred from doing directly. That means it cannot make any agreement with some other party who discriminates against you. 28 C.F.R. section 36.202. If that happens, you have an ADA claim against the contractor who perpetuated the discrimination and the business with which it contracted.

9. Who does the ADA protect from discrimination by public accommodations?

Title III of the ADA is the part of the law that covers public accommodations. It protects “individuals with disabilities” from discrimination. Disability means:

· Having a physical or mental impairment that substantially limits one or more of the major life activities of such individual (such as personal care, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, or working); or

· Having a record of such an impairment (such as a disease in remission); or

· Being regarded as having such an impairment (such as a person who has severe burns but has no impairments). 42 U.S.C. section 12102(2); 28 C.F.R. section 34.104.

10. I need an accommodation in order to enjoy a service of a business. Am I entitled to it?

To make sure you have access to its goods and services to the same extent as others, a private business may have to provide you with accommodations. An accommodation may be some form of personal assistance, an adjustment to the operations of the business or even a device or an item of technology. Title III does not use the word accommodation. Instead, it uses terms such as auxiliary aids and services for effective communication, and reasonable modification to policies, practices, and procedures. 42 U.S.C. section 12182(b)(2)(A)(ii) and (iii).

Effective Communication

Private businesses must communicate with individuals with disabilities as effectively as they communicate with others. 28 C.F.R. section 36.303. Communication includes all forms of interaction with the public including face to face communication, written correspondence and the use of telephones, fax, e-mail, electronic systems and the Internet. If necessary for effective communication, these entities must furnish you with auxiliary aids and services. There is a wide range of services and devices such as qualified interpreters, transcription services, assistive listening devices, note takers, qualified readers, taped text and Braille materials. Use of the most advanced technology is not required so long as effective communication is ensured. Appendix to 28 C.F.R. Section 36.303.

Factors to consider in deciding what auxiliary aids are necessary for effective communication in your case include the nature of your impairment, what devices and services are available, and the length and complexity of the communication involved. DOJ’s Title III Tech. Assist. Manual, section III-4.3200. An example of a business providing an auxiliary aid would be a hospital using a real-time transcription service for communicating with hearing-impaired patients. Another example would be a private school providing taped texts for vision-impaired students.

Reasonable Modifications

In addition, private businesses must make reasonable modifications to their policies, practices, and procedures when such modifications are necessary to afford equal treatment to people with disabilities. For instance, a large bank may have to modify its purchasing policy and require that the ATM machines purchased or rented by the bank have accessible features.

11. When is a private business not required to provide an accommodation under the ADA?

A private business does not have to provide an accommodation when it would:

· Fundamentally alter the nature of the business; or

· Create an undue financial burden. 28 C.F.R. section 36.303(a).

Fundamental Alteration

A fundamental alteration is a modification that is so significant that it alters the essential nature of the goods, services, facilities, privileges, advantages, and accommodations of the business, according to DOJ’s Title III Tech. Assist. Manual, section III-4.3600. In other words, the accommodation is no longer just an adjustment to the way the business operates. Rather, it turns the goods and services of the business into something different from what they were originally designed to be.

Undue Burden

An undue burden means a significant difficulty or expense on the business. That means the accommodation you are asking for is too expensive or too difficult for the business to provide. Before deciding that the accommodation is an undue burden, the business must consider all resources available for use in the funding and operation of the business.

When a private business makes the decision that providing an accommodation would fundamentally alter its business or create an undue burden, it must try to find you an accommodation, if one exists, that does not result in an alteration or undue burden. 28 C.F.R. section 36.303.(f).

12. Does the ADA ever allow a private business to prevent me from receiving its goods and services?

A private business may deny an individual with a disability its goods and services only when that individual’s participation poses a direct threat to the health and safety of others. 28 C.F.R. section 36.208(a). A direct threat means a significant risk to the health and safety of others which cannot be erased by modifying the policies, practices, and procedures of the business or by providing auxiliary aids and services. 28 C.F.R. section 36.308(b).

To determine whether there is a direct threat, the private business must make a case-by-case assessment based on reasonable judgment that relies on current medical evidence, or on the best available objective evidence that takes into account:

(1) The nature, duration, and the severity of the risk;

(2) The probability that the potential injury will actually occur; and

(3) Whether reasonable modifications of policies, practices, or procedures, or if the provision of auxiliary aids will mitigate or eliminate the risk. 28 C.F.R. section 36.208 (c).

13. Can a private business charge me a fee for the accommodation?

No. A private business cannot impose a surcharge on a particular individual with a disability or any group of individuals with disabilities to cover the costs of auxiliary aids or reasonable modifications in policies, practices, or procedures. 28 C.F.R. section 36.301 (c).

SMALL CLAIMS COURT

14. What is small claims court?

Small claims court is a special court where disputes are resolved quickly and inexpensively. The rules are simple and informal. The person who sues is the plaintiff. The person who is being sued is the defendant. In small claims court, you may ask a lawyer for advice before you go to court, but you cannot have a lawyer in court. Your claim cannot be for more than $5,000. If you have a claim for more than this amount, you may sue in the superior court or the municipal court or you may sue in the small claims court and give up your right to the amount over $5,000. You cannot file more than two cases in small claims court for more than $2,500 each during a calendar year.

Cases are heard quickly in a small claims court. If you and the person you are suing live within the county you filed your claim, your case will be heard within 40 days of the filing date. If the person you are suing lives outside the county, your case will be heard within 70 days. Some counties have local rules and procedures that you must follow, in addition to the state rules that apply to all courts. Your case will be heard by a small claims court commissioner or a judge pro tem. A commissioner has all the responsibilities and powers of a judge. A judge pro tem is an attorney who volunteers his or her time to hear and decide cases. A judge pro tem also has all the responsibilities and powers of a judge.

15. How do I file a claim?

You start the process by filling out a claim form called PLAINTIFF’S CLAIM AND ORDER TO DEFENDANT. The form is simple and straightforward. See Appendix H. The court clerk checks the claim form for accuracy and directs you to the cashier to pay the filing fee, which is $20. The clerk will assign the time and date of the hearing. If you prefer night or Saturday sessions, you need to find out if they are available. If you have a preference for some days over others, make sure the clerk knows of your preference. You can file by mail, but be aware that a small mistake can result in the claim being returned to you unfiled.

To file your claim, you will need to know the correct and complete name of the party you are suing. 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. To sue a business, it’s important to know whether it’s a corporation, partnership or sole proprietorship.

If you are suing a business owned by one person, you must write both the owner and the business name on your claim. You should also name the owner as the individual to increase your chances of collecting if you win. If the owner is doing business under a fictitious name, write the letters DBA, which stands for “Doing Business As,” between the name of the owner and the business name. For example, you would write Sue Smith, individual & DBA Continental Candies.

If you are suing a husband and wife, write the husband’s full name and the wife’s full name. For example, James A. Jones and Sally R. Jones. If you don’t know the wife’s first name, write James A. Jones and Mrs. James A. Jones.

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 Jim Smith, Individual, & John Jones, Individual, & DBA Smith & Jones. 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: Sally’s Dresses, a corporation or Sally’s Dresses, Inc.

If a corporation owns a division or subsidiary it should be designated as in the following example: Lotus Corporation, DBA The Flower 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.

16. Can I amend my claim?

You can change or amend a claim that has already been filed in small claims court in the following ways:

To amend a claim, if your claim has not been served, go to the Small Claims Clerk’s Office and ask to have an amendment added to the claim. Be sure to bring your original claim forms with you. If any of your defendants have been served on the original claim, you will need to submit a letter to the court requesting permission to amend your claim.

To delete one or more of the 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 of the defendants. You do not have to notify the remaining defendants of the dismissal.

17. Where can I get advice?

California law requires that all counties must provide advice on small claims court. There are small claims court advisors in every county court. They may be available either in person or by phone. The advisors can tell you if you can use the court and guide you through the process. Some counties may share an advisor. Also, court clerks can be good sources of information and assistance for preparing forms and following local court procedures. They are not attorneys and are not allowed to give legal advice. Always be polite to the court clerk. He or she can help to move your case forward faster by assigning your case to a judge who hears cases quickly.

18. How can I represent myself if I don’t speak English?

If you do not speak English, you may take a family member or friend to court with you. The court should also have a list of interpreters who will interpret for you. Some interpreters are available at low-cost or no fee. If an interpreter is not available, the court will postpone the hearing (one time only) so that you have time to get one.

19. Can I get accommodations in small claims court?

Individuals with a disability who need assistance can ask the court for accommodations, which may include sign language interpreters, the assistance of another person (like an advocate) for people with cognitive impairments, or appearance by phone for people in locked facilities. You need to make your request immediately after you file your claim so that the court can help accommodate your needs. There should be no cost to you for the accommodations you receive. A copy of a REQUEST FOR ACCOMMODATIONS BY PERSONS WITH DISABILITIES AND ORDER can be found at Appendix D. For further information about requesting court accommodations, you can contact PAI and ask for the publication: Access to the Courts: A Guide to Reasonable Accommodations for People with Disabilities, Publication # 5026.01

20. Who can file a claim?

You must be at least 18 years old and competent to file a claim. For minors and those judged incompetent, you must use the form APPLICATION AND APPOINTMENT OF GUARDIAN AD LITEM to ask the court to appoint someone to act as a representative (see Appendix E). This is a person who will act for you in the case. The guardian ad litem is usually a parent, a relative, or an adult friend. Incompetence is a legal term meaning that due to some mental or physical condition, the person is unable to bring or defend a suit on his own behalf.

21. What should I do before suing in small claims court?

You should first decide whether it is worth your time and effort to sue in small claims court. Although trials in small claims court are quick and simple, it takes a great deal of time to prepare, file and collect a judgment. Most cases settle out of court because parties never know what the results will be in court. You should almost always try to settle your claim before filing. In fact, the law requires you to ask the other side to pay before you file. It is wise that you do so in writing and keep a copy as evidence to present to the court. This is called a DEMAND LETTER. You can send the demand letter by certified mail to prove the other party received it. You will find a sample demand letter at Appendix A.

22. Should I use mediation?

Mediation is a non-adversarial, out-of-court alternative used to settle disputes. You and the other person with whom you have the dispute meet with a panel of volunteer mediators in a neutral location to discuss and attempt to resolve your dispute. There are no forms to file to start mediation. If you want to use mediation, you need to contact a mediator or an agency that provides mediation services. The mediator will contact the other side and explain the process to them. If both sides agree, then a mediation session is scheduled. If mediation is successful, the mediator will help put your agreement into writing. The agreement can be used as evidence of a contract in a later small claim action if it is broken. What is said during mediation is private and confidential. If mediation is not successful, parties can still file a claim in court. Either side can have an attorney participate at any stage of mediation.

The mediator begins by explaining the procedures and makes sure that the participants have full authority to settle the case. Then parties make an opening statement followed by the mediator asking questions from either side. Parties then communicate directly by presenting relevant information and trying to see the other side’s position as the mediator guides the discussion. The mediator may suggest a private meeting with either side to review the merits of the case and lead the party in a more constructive direction. In these meetings, you can tell the mediator information which you do not wish to disclose to the other side. The mediator will keep the information confidential.

Mediation usually involves just one session, about two hours in length. There is little or no cost involved. Mediation allows you and the other participants to work out a solution together, rather than risking having a small claims court commissioner make a decision for you. Eighty percent of disputes brought to mediation are settled.

You may want to consider mediation before initiating a small claims court action However, you may initiate mediation even though you have a small claims court action pending. You can arrange to have your mediation scheduled before your court hearing. Then, if you are satisfied with mediation, you and the other party may decide to forgo the court process and dismiss the case.

23. Where do I file my claim?

You must sue in the right county. This is called “venue.” Generally, you should file in the county where the party you are suing lives or does business. You may, however, be able file your claim in other counties in certain situations, including:

· Where the business’s branch office is located;

· Where the corporation does business or where its principal place of business is located; and

· Where the discriminatory act occurred.

If you sue in the wrong venue, the defendant can request a dismissal by writing to the court, or by appearing on the trial date and requesting a dismissal. If the defendant does not appear, the court will still investigate and make a determination whether venue is correct. If venue is incorrect, the court will dismiss the case without prejudice. This means that you can file your claim again (unless all of the defendants are present and agree to have the trial anyway).

24. What are the fees for small claims court?

You must pay a $20 fee for filing a claim in small claims court, unless you can get a waiver of court fees and costs. The court waives the fees if you cannot afford it. To get a waiver, you need to file the APPLICATION FOR WAIVER OF COURT FEES AND COST form (Appendix F-1 and F-2). You qualify for the waiver when:

(1) You are receiving financial assistance under one or more of the following programs:

· SSI and SSP (Supplemental Security Income and State Supplemental Payments Programs);

· AFDC (Aid to Families with Dependent Children Program; now TANF, Temporary Aid to Needy Families);

· The Food Stamps Program;

· County Relief, General Relief (G.R.) or General Assistance (G.A.); or

(2) Your monthly income is less than a specified amount. See Appendix F-2 for the income chart; or

(3) Your income would not be enough to pay for the common necessities of life for yourself and the people you support if you had to pay court fees and costs.

The court charges an additional fee of $6 for serving the defendant by certified mail. Alternatively, you can pay $25 to the marshal or sheriff for personal or substituted service. (See Appendix T for a sample list of sheriff’s fees for service.) The marshal’s office usually requires 30 days lead-time. They can also serve subpoenas.

You must pay a $10 fee to request a postponement of the court date, a $14 fee for Judgment Creditor Examination, and a $14 fee to file a Motion to Vacate Judgment. A sample small claims filing fee schedule for the county of Sacramento is included at Appendix S.

25. How does the defendant find out about the claim?

You must make sure the defendant finds out about your lawsuit. This notification has to be done according to the rules, or your case may be dismissed or delayed. The correct way of telling the defendant about the lawsuit is called Service of Process. This means giving the defendant a copy of the lawsuit. You cannot do this yourself. Here are three ways to serve the defendant:

(1) Personal Service - You may ask anyone who is not a party in your case and who is at least 18 years old, such as a process server, sheriff, marshal or even a friend to serve the defendant. The server must identify the defendant and personally hand him/her the lawsuit. If the defendant refuses to accept, the lawsuit cannot be dropped at his/her feet. The server must also sign a PROOF OF SERVICE form showing when the defendant was served. A copy of this form is at Appendix I. Registered process servers will serve parties for a fee

(2) Certified Mail - You may ask the clerk of the court to serve the defendant by restricted certified mail, which means only the defendant can sign for it. The clerk will charge a fee. The defendant must sign the return receipt at least 10 days before the hearing if he/she lives in the same county or 15 days if he/she lives in a different county from where the action is filed.

(3) Substituted Service - This method lets you serve another person instead of the defendant. You must follow the procedures carefully and you may also wish to use the marshal, sheriff or a registered process server for this type of service. A copy of your claim must be left at the defendant’s office with the person in charge or at the defendant’s home with a competent person who is at least 18 years old. The person who receives the claim must be told about its contents. Another copy must be mailed within 10 days, first class, postage prepaid, to the defendant at the address where the paper was left. In addition, the mailing must be done 20 days before the hearing or 25 days if the defendant lives in another county.

No matter which method of service you choose, the defendant must be served by a certain date or the trial will be postponed. If the defendant lives in the county, service must be completed within 10 days before the trial date. This period is 15 days if the defendant lives outside the county.

26. What if the defendant also has a claim?

Sometimes the person who has been sued (the defendant) will also have a claim against the person who filed the lawsuit (the plaintiff). This is called the Defendant’s Claim. The defendant may file this claim in the same lawsuit. This helps to resolve all of the disagreements between the parties at the same time.

If the defendant decides to file the claim in the small claims court, the claim may not be for more than $5,000. If the value of the claim is more than this amount, the defendant may either give up the amount over $5,000 and sue in the small claims court, or file a motion to transfer the case to the appropriate court for the full value of the claim.

The defendant’s claim must be served on you at least 5 days before the trial. If the defendant received your claim 10 days or less before the trial, then the claim must be served on you at least one day before the trial. Both claims will be heard at the same time.

27. What happens at the trial?

The parties present their cases themselves. An attorney may not represent you in court, although you may consult an attorney before or after you go to court. Be sure you are on time for the trial. The small claims trial is informal. You must bring with you all witnesses, books, receipts, and other papers and things to prove your case. You may ask the witnesses to come to court voluntarily. You may also ask the clerk of the court to issue a subpoena. A subpoena is a court order that requires the witness to go to trial. The witness has a right to charge a fee for going to trial. For non-expert witnesses, this fee is $35 a day, plus $0.20/mile for travel to and from the courthouse. If you decide to use an expert witness, this fee may be substantial. An expert can charge the reasonable and customary hourly fee that he or she would regularly charge for his or her services. To save yourself the expense of a witness’ appearance at the trial, you can ask him to provide a written declaration instead. If you do not have the records or papers to prove your case, you may also get a court order prior to the trial date requiring the defendant to bring the papers to the trial. This order is called a SMALL CLAIMS SUBPOENA (form 9882(a)(15). You must fill out a DECLARATION FOR SUBPOENA DUCES TECUM. (See Appendix J.)

If you settle the case before the trial, you must file a REQUEST FOR DISMISSAL form with the clerk. (Appendix L.)

The court’s decision is usually mailed to you after the trial. It may also be hand-delivered to you when the trial is over and after the judge has made a decision. The decision appears on the NOTICE OF ENTRY OF JUDGMENT (Appendix M).

28. What happens after judgment?

The court may have ordered one party to pay money to the other party. The party who wins the case and collects the money is called the judgment creditor. The party who loses the case and owes the money is called the judgment debtor. Enforcement of the judgment is postponed until the time for appeal ends or until the appeal is decided. This means that the judgment creditor cannot collect any money until this period is over.

Generally, lawyers may represent both parties after the judgment. More information about your rights after the judgment is available on the back of the Notice of Judgment form. The clerk or small claims court advisor may also have this information on a separate sheet.

29. How can I appeal a small claims judgment?

You can only appeal a small claim court judgment if you lose on the other party’s claim. This means if you lose on your own claim, you cannot appeal that judgment. The NOTICE OF APPEAL form (Appendix N) must be filed within 30 calendar days of the date of the small claims decision or, if the decision is mailed, within 30 days of the date the clerk mails the Notice of Entry of Judgment. The date will appear on the form you receive.

The appeal is filed with the Small Claims Court Clerk. 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 the lawsuit was for $1,000 and the judgment was for $500, on appeal the judge in the superior court has the right to award the full $1,000.

While the case is on appeal, the party who filed the appeal does not have to pay the judgment. But if that party loses the appeal, she/he must pay the other side the amount of the judgment, plus interest and costs, and may also have to pay attorney’s fees up to $150. Examples of costs are any earnings lost or any money actually paid for transportation and lodging in connection with the appeal.

30. How can I collect a small claims court judgment?

You will have to collect your money yourself if you win in small claims court. The court will not collect it for you. If the defendant appeared in court, you must wait at least 30 days from the date of the Entry of Judgment to collect, and at least 30 days if you have a Default Judgment. You 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 hire a process server who will serve the writ. Before having the court issue the writ, you will need to file a MEMORANDUM OF COSTS form for the process server’s fee and mail a copy to the opposing side (a copy of the memorandum is in the Appendix O). 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 the rate of 10 percent per year, beginning with the date of the Entry of Judgment. You are also entitled to 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 form. Fill it out and return it to the Clerk. After you collect your judgment, you must file an ACKNOWLEDGMENT OF SATISFACTION OF JUDGMENT form with the Clerk. (Appendix P).

If the person who owes you money refuses to pay, the following are some things you can do to try to collect:

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, bring your judgment to the Small Claims Clerk and ask for a WRIT OF EXECUTION (Appendix Q).

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. Get a Writ of Execution from the Small Claims Clerk. There is a fee to issue a Writ of Execution.

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, bring your judgment to the Small Claims Clerk and ask for an ABSTRACT OF JUDGMENT form (Appendix R). There is a small fee. Take the Abstract to the County Recorder’s office to record. There is an additional fee for this service. You can find the address and phone number of the Recorder’s office in your county in the Government Pages of your phone book. It is usually listed in the county section under the heading ASSESSOR, COUNTY CLERK RECORDER or just RECORDER.

There are some other ways to collect judgments:

Have the Sheriff do a “Till Tap”

If the debtor is a business with a cash register, the Sheriff can go to the business and take enough money out of the register to pay the judgment and his fee. First, get a WRIT OF EXECUTION from the Small Claims Clerk and bring it to the Sheriff. Instruct the Sheriff to do a “Till Tap.” You must know the name and address of the business. If there is not enough money in the register to pay the judgment, you will have to pay another fee each time the Sheriff goes back. For a list of applicable fees for the Sacramento County Sheriff’s Office, see Appendix T. The fees for other county sheriff departments may vary slightly.

Put a “Keeper” in the Debtor’s Business

The Sheriff will, for a fee, remain in the debtor’s business, even in a doctor or dentist’s office, and take all the funds she/he can collect including cash, checks and bank credit card drafts. You will need the name and address of the business. Get a WRIT OF EXECUTION and take it to the Sheriff. Tell the Sheriff you want to put a “Keeper” in the business. If the debtor closes the business while the Sheriff is there, you will have to pay another fee each time the Sheriff goes back.

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 bankbooks, property deeds, paycheck stubs, etc., before you hold the hearing. You will need a SMALL CLAIMS SUBPOENA DUCES TECUM AND DECLARATION (Appendix J). To hold the hearing, ask the Small Claims Clerk for an ORDER OF EXAMINATION. There is a fee. The Sheriff or a Registered Process Server must serve the Order of Examination on the debtor. The debtor must be within 150 miles of the Court.