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: 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 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.

 

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 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: What can I do if the debtor is supposed to pay me in installments but has stopped paying (or never paid)?

A:  If the court gave the debtor permission to pay you in installments (a payment plan) and the debtor stopped paying you, is paying you late, or never paid you, you can ask the court that the payment plan be canceled and that the entire balance become due. Basically, you are telling the court that the debtor is in default and the payment plan should be canceled so you can collect on the entire balance right away.

To do this:

  1. Fill out a Declaration of Default in Payment of Judgment (Form SC-223).
    Make sure you read page 2 of Form SC-223 before you fill out the first page. It gives you (and the debtor) information on the process. And it tells you how to calculate the interest on the payments the debtor owes you.

    • If there is more than one debtor in this case, fill out a Form SC-223 for each debtor that has failed to make an installment payment.

  2. File your form with the court clerk.

  3. The court will mail any other parties in the case a copy of your Declaration of Default in Payment of Judgment (Form SC-223) plus a blank Response to Declaration of Default in Payment of Judgment (Form SC-224) for the debtor to use if he or she wants to respond to your Declaration.

  4. The debtor has 10 days to file the Response to Declaration of Default in Payment of Judgment (Form SC-224).

  5. The court will then mail all the parties in the case (including you) an Order on Declaration of Default in Payments (Form SC-225) which will have:

    • A decision on whether or not to end the payment plan and have the full balance become due right away, OR

    • A notice to go to a court hearing to hear both sides in person and make a decision then.

  6. If the court's decision is that the full balance is due now, you can start collecting on the full amount. Click to find out how to collect.

  7. If the court sends you a notice for a court hearing, make sure you go to the court hearing. If you have any proof of late or missed payments, bring that with you.

Q: What can I do if I have a court order that lets me pay in installments and the judgment creditor has asked to cancel that payment plan?

A: If the court gave you permission to pay the judgment in installments (a payment plan) and you stop paying or never made any payments, the creditor can ask the court that the payment plan be canceled and that the entire balance become due. If this happens, you have the right to respond to the creditor's request and explain your side of the story. You MUST do this within 10 days of getting notice in the mail that the creditor has made the request.

This is what will happen:

  1. The creditor will fill out and file a Declaration of Default in Payment of Judgment (Form SC-223) saying that you are in default on the payment plan, and giving details about the payments he or she claims you made and failed to make.

  2. The court will mail you a copy of the creditor's Declaration (Form SC-223) and also mail you a blank Response to Declaration of Default in Payment of Judgment (Form SC-224) to use if you want to respond to the creditor's Declaration.

    • Make sure you read page 2 of Form SC-224. It gives you important information on the process and what you must do.

  3. If you disagree with the creditor's Declaration and/or you do not want the payment plan canceled, fill out the Response to Declaration of Default in Payment of Judgment (Form SC-224). Make copies of the Response. One for you and one for each party in the case.

  4. Have copies of your Response (Form SC-224) served on all other parties in your case. This means someone 18 or older, not you, must mail a copy of your Response. Your server must fill out a proof of service for each party he or she serves. Then, your server must return that proof of service to you. Your server can use Proof of Service by Mail (Form SC-112A).

  5. File the original of your Response to Declaration of Default in Payment of Judgment (Form SC-224) and the Proof of Service with the court clerk. You MUST do this within 10 days of receiving the Declaration (Form SC-223).

  6. The court will then mail all the parties in the case (including you) an Order on Declaration of Default in Payments (Form SC-225) which will have:

    • A decision on whether or not to end the payment plan and have the full balance become due right away, OR

    • A notice to go to a court hearing to hear both sides in person and make a decision then.

  7. If the court's decision is that the full balance is due now, the creditor can start collecting on the full amount right away.

  8. If the court sends you a notice for a court hearing, make sure you go to the court hearing. If you have proof that you made the payments the creditor claims you missed, bring that with you.

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.

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