FAQs

Small Claims - Frequently Asked Questions

Q: How much will a process server cost?

A: Costs vary from county to county.

To find out about costs in your area, look in the Yellow Pages of your telephone book under "Process Servers." Then, call several process servers and ask about costs.

You may be able to get the defendant to pay the cost of the process server (see the answer to the next question). Ask for these costs at your court hearing and take a receipt for your expenses.

Q: Can I get the defendant to pay the cost of a process server?

A: If you win your case, the judge usually adds the process-serving fee to your judgment (as long as the cost is reasonable).

Also, check out California Code of Civil Procedure section 116.610(g).

Q: What out-of-pocket costs can I get back from the debtor and how do I collect them?

A: The law lets you recover:

Court clerk fees for issuing a Writ of Execution (Form EJ-130) or Abstract of Judgment (Form EJ-001);
County recorder fees for recording and indexing an Abstract of Judgment (Form EJ-001);
Statutory fees for the sheriff or marshal; and
Costs associated with a debtor's examination (hearing fee and service of process fee).

For more information, check out California Code of Civil Procedure section 685.070.

To recover your costs of collection, you must file with the court a Memorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest (Form MC-012) within 2 years of incurring the costs.

Q: I am a landlord. Can I send my property agent to represent me at the trial?

A: Maybe. You can do this if:

The property agent manages your building;
You did not hire the agent just to represent you in court; and
The claim is about the property.

The property agent must give the court a "declaration" at the hearing. You can fill out and use an Authorization to Appear (Small Claims) (Form SC-109) as your declaration or you may draft your own by using a blank declaration form.

Q: If I renew my judgment what happens to the liens?

A: The liens are no longer enforceable because the judgment that the liens were based on is no longer enforceable. To extend a real property lien, you must record a certified copy of the Application for and Renewal of Judgment (Form EJ-190). Check out California Code of Civil Procedure section 683.180.

Q: How do I calculate the 10 percent interest that the creditor is entitled to on the unpaid portion of the judgment?

A: Interest begins on the day the final judgment is entered. If partial payments are made, those payments are first applied to the accrued interest and then to the unpaid principal. For more information, read California Code of Civil Procedure sections 685.010 to 685.030.

To calculate the interest, first determine the daily amount of interest. For example, a $6,000 judgment accrues $600 of interest per year at a rate of 10 percent. Dividing $600 by 365 days gives you a daily interest rate of $1.64. Now, assume that after 145 days the debtor pays you $1,200. The following computation shows the amount of interest that will accrue after that payment is made:

After 145 days, $237.80 (145 days x $1.64/day) of interest will have accrued on the $6,000 judgment. Out of the debtor’s $1,200 payment, pay yourself the accrued interest first. You then will have $962.20 left ($1,200 - $237.80 = $962.20). Now credit the remaining $962.20 against the $6,000 judgment ($6,000 - $962.20 = $5,037.80 of unpaid principal). The new daily interest will then accrue at a rate of $1.38/day ($5037.80 x 10% = $503.78 ÷ 365).

Assume, then, that 215 days later a $504 payment is made. During the 215 days, $296.70 (215 days x $1.38/day) of interest will have accrued. Out of the $504, pay yourself the accrued interest first ($504 - $296.70 = $207.30) leaving $207.30 to apply to unpaid principal. Now credit the $207.30 against the remaining judgment principal of $5,037.80, and we find that $4,830.50 remains unpaid. The new daily interest will then accrue at a rate of $1.32/day ($4,830.50 x 10% = $483.05÷ 365).

Q: Can I collect against the wages of the debtor's spouse or domestic partner if that person was not a defendant in my case?

A: Possibly. Your local court should allow you to file a noticed motion under Code of Civil Procedure section 706.109 using a Request for Court Order and Answer (Form SC-105). The judge will make the final decision on whether to allow you to garnish the wages of the debtor's spouse or partner.

Q: What if my licensed contractor cannot pay?

A: A contractor has to pay a $12,500 bond to be able to get a license. If there is a violation of the licensing law, you can sue the company that holds the bond. Name that company as a defendant. The licensing law is at Business and Professions Code, division 3, chapter 9 (starting at section 7000). Make sure you ask the small claims judge to write a statement of decision that specifically mentions the law that was violated.

Call the Contractors State License Board online or by phone at 1-800-321-2752 to get the name of the bonding company.

Note: The bonding company is a guarantor. A "guarantor" is a person or company who promises to be responsible for what another person owes. If you are a natural person, you can only sue a guarantor for up to $6,500 ($2,500 if they do not charge for the guarantee; $4,000 if you are not a natural person). But you can sue the Registrar of Contractors (the executive officer of the Contractors State License Board) as a guarantor for up to $10,000 if you are a natural person.

Q: Can a contractor sue a homeowner?

A: Yes. If a contractor did not need a license to do the work, he or she can sue for payment. If the contractor did need a license, the contractor cannot sue unless he or she had a license when the work was done. The contractor must have the specific license for the job (for example, a licensed plumbing contractor cannot also fix the electrical wiring in your home).

Q: What happens to my security deposit if the rental property is sold while I still live there?

A: Both owners can be responsible for returning your deposit when you move. The previous owner can give the new owner your deposit and send you a letter telling you the name, address, and phone number of the new owner and how much money was transferred. Then the new owner has to return your deposit. Otherwise you should ask the previous owner to return it.

Q: What happens to the security deposit if only 1 roommate is moving out?

A: If the person moving out paid the deposit to another roommate, that roommate has to return the deposit. If the person moving out gave the deposit to the landlord, the landlord returns the deposit.

Roommate situations are complicated. Make sure your rental agreement says what everyone's rights and responsibilities are.

Q: What do I do if I cannot find the debtor (the person who owes me money)?

A: You may not need to know the debtor's location if, for example, you know the bank branch where the debtor has his or her accounts. On the other hand, you may need to do a debtor's examination at the courthouse.

Some ways to try to locate the debtor:

Use the Internet and its search tools: white pages, reverse lookup, etc.
Check with the county assessor to see if the debtor, debtor's spouse, or the debtor's domestic partner owns real property. Some county assessors will confirm if a debtor owns real property over the phone. Click to find the local tax assessor.
Search the county clerk's records to find if the person has a fictitious business name statement on file with an address.
Check with the court to see if there are any other lawsuits filed against the debtor, the debtor's spouse, or the debtor's domestic partner and see if an address is listed in that file.