What are the requirements to sue in small claims court?
Full Question:
I retired from the University of California (01/01/09) and a lump sum pay off ($71000) was sent to Fidelity Investments to go in my 401k. 01/16/09.I had contacted a Fidelity Retirement Counselor in November, 2008, and told her I did not want my new money to go in the any of the default mutual funds that the account had which I had chosen as investments months before.I made clear my desire that the new money was to go in a treasury money market to protect it against market fluctuation.A form was sent to me which I did not send back in until early January, 09.Fidelity maintains that The form had irregularities in the information and before anyone could contact me, the distribution was sent from the University to my default mutual funds that were still open. Finding this out, I transfered the new money to a treasury money market to save it from mutual fund losses.My losses are about $5000 from the phone transfer I made to save the new money.Yes, I should have sent the form in earlier, but I also believe that Fidelity should have contacted me when irregularities were found. I do not have the time line of this now. I requested a mailed copy of the form that was sent be mailed to me. Can I sue in Small Claims court or should I use a lawyer?
01/23/2009 |
Category: Small Claims |
State: California |
#15057
Answer:
A person can sue in small claims court in California to receive money damages up to $7,500. No person may file more than two small claims actions in which the amount demanded exceeds two thousand five hundred dollars ($2,500), anywhere in the state in any calendar year. I recommend checking the contracts involved to see if there is a clause agreeing to resolve any disputes in a particular forum.
The following are California statutes:
§ 116.210 Civ. Proc.
In each superior court there shall be a small claims division. The small claims division may be known as the small claims court.
116.220.
(a) The small claims court has jurisdiction in the following
actions:
(1) Except as provided in subdivisions (c), (e), and (f), for recovery
of money, if the amount of the demand does not exceed five thousand dollars
($5,000).
(2) Except as provided in subdivisions (c), (e), and (f), to enforce
payment of delinquent unsecured personal property taxes in an amount not to
exceed five thousand dollars ($5,000), if the legality of the tax is not
contested by the defendant.
(3) To issue the writ of possession authorized by Sections 1861.5 and
1861.10 of the Civil Code if the amount of the demand does not exceed five
thousand dollars ($5,000).
(4) To confirm, correct, or vacate a fee arbitration award not
exceeding five thousand dollars ($5,000) between an attorney and client
that is binding or has become binding, or to conduct a hearing de novo
between an attorney and client after nonbinding arbitration of a fee
dispute involving no more than five thousand dollars ($5,000) in
controversy, pursuant to Article 13 (commencing with Section 6200)
of Chapter 4 of Division 3 of the Business and Professions Code.
(b) In any action seeking relief authorized by subdivision (a), the court
may grant equitable relief in the form of rescission, restitution,
reformation, and specific performance, in lieu of, or in addition to, money
damages. The court may issue a conditional judgment. The court shall retain
jurisdiction until full payment and performance of any judgment or order.
(c) Notwithstanding subdivision (a), the small claims court has
jurisdiction over a defendant guarantor as follows:
(1) For any action brought by a natural person against the Registrar
of the Contractors' State License Board as the defendant guarantor, the
small claims jurisdictional limit stated in Section 116.221 shall apply.
(2) For any action against a defendant guarantor that does not charge a
fee for its guarantor or surety services, if the amount of the demand does
not exceed two thousand five hundred dollars ($2,500).
(3) For any action brought by a natural person against a defendant
guarantor that charges a fee for its guarantor or surety services, if the
amount of the demand does not exceed six thousand five hundred dollars
($6,500).
(4) For any action brought by an entity other than a natural person
against a defendant guarantor that charges a fee for its guarantor
or surety services or against the Registrar of the Contractors' State
License Board as the defendant guarantor, if the amount of the demand
does not exceed four thousand dollars ($4,000).
(d) In any case in which the lack of jurisdiction is due solely to an
excess in the amount of the demand, the excess may be waived, but any
waiver is not operative until judgment.
(e) Notwithstanding subdivision (a), in any action filed by a plaintiff
incarcerated in a Department of Corrections and Rehabilitation facility,
the small claims court has jurisdiction over a defendant only if the
plaintiff has alleged in the complaint that he or she has exhausted his
or her administrative remedies against that department, including compliance
with Sections 905.2 and 905.4 of the Government Code. The final
administrative adjudication or determination of the plaintiff's
administrative claim by the department may be attached to the complaint
at the time of filing in lieu of that allegation.
(f) In any action governed by subdivision (e), if the plaintiff fails to
provide proof of compliance with the requirements of subdivision (e) at the
time of trial, the judicial officer shall, at his or her discretion, either
dismiss the action or continue the action to give the plaintiff an
opportunity to provide that proof.
(g) For purposes of this section, "department" includes an employee
of a department against whom a claim has been filed under this
chapter arising out of his or her duties as an employee of that department.
§ 116.221 Civ. Proc.
[EDITORS' NOTE: SEE BELOW FOR ADDITIONAL VERSION OF THIS SECTION ADDED BY Stats. 2005 c. 618, sec. 2.]
In addition to the jurisdiction conferred by Section 116.220, the small claims court has jurisdiction in an action brought by a natural person, if the amount of the demand does not exceed seven thousand five hundred dollars ($7,500), except for actions otherwise prohibited by subdivision (c) of Section 116.220 or subdivision (a) of Section 116.231.
(Added by Stats. 2005, c. 600, sec. 2.)
§ 116.221 Civ. Proc.
[EDITORS' NOTE: SEE ABOVE FOR ADDITIONAL VERSION OF THIS SECTION ADDED BY Stats. 2005 c. 600, sec. 2.]
In addition to the jurisdiction conferred by Section 116.220, the small claims court has jurisdiction in an action brought by a natural person, if the amount of the demand does not exceed seven thousand five hundred dollars ($7,500), except for actions otherwise prohibited by subdivision (c) of Section 116.220 or subdivision (a) of Section 116.231.
§ 116.222 Civ. Proc.
[EDITORS' NOTE: SEE BELOW FOR ADDITIONAL VERSION OF THIS SECTION ADDED BY Stats. 2005 c. 618, sec. 3.]
If the action is to enforce the payment of a debt, the statement of calculation of liability shall separately state the original debt, each payment credited to the debt, each fee and charge added to the debt, each payment credited against those fees and charges, all other debits or charges to the account, and an explanation ! of the n ature of those fees, charges, debits, and all other credits to the debt, by source and amount.
(Added by Stats. 2005, c. 600, sec. 3.)
§ 116.222 Civ. Proc.
[EDITORS' NOTE: SEE ABOVE FOR ADDITIONAL VERSION OF THIS SECTION ADDED BY Stats. 2005 c. 600, sec. 3.]
If the action is to enforce the payment of a debt, the statement of calculation of liability shall separately state the original debt, each payment credited to the debt, each fee and charge added to the debt, each payment credited against those fees and charges, all other debits or charges to the account, and an explanation of the nature of those fees, charges, debits, and all other credits to the debt, by source and amount.
§ 116.225 Civ. Proc.
An agreement entered into or renewed on or after January 1, 2003, establishing a forum outside of California for an action arising from an offer or provision of goods, services, property, or extensions of credit primarily for personal, family, or household purposes that is otherwise within the jurisdiction of a small claims court of this state is contrary to public policy and is void and unenforceable.
§ 116.230 Civ. Proc.
(a) In a small claims case, the clerk of the court shall charge and collect only those fees authorized under this chapter.
(b) If the party filing a claim has filed 12 or fewer small claims in the state within the previous 12 months, the filing fee is the
following:
(1) Thirty dollars ($30) if the amount of the demand is one thousand five hundred dollars ($1,500) or less.
(2) Fifty dollars ($50) if the amount of the demand is more than one thousand five hundred dollars ($1,500) but less than or equal to five thousand dollars ($5,000).
(3) Seventy-five dollars ($75) if the amount of the demand is more than five thousand dollars ($5,000).
(c) If the party has filed more than 12 other small claims in the state within the previous 12 months, the filing fee is one hundred dollars ($100).
(d)
(1) If, after having filed a claim and paid the required fee under paragraph (1) of subdivision (b), a party files an amended claim or amendment to a claim that raises the amount of the demand so that the filing fee under paragraph (2) of subdivision (b) would be charged, the filing fee for the amended claim or amendment is twenty dollars ($20).
(2) If, after having filed a claim and paid the required fee under paragraph (2) of subdivision (b), a party files an amended claim or amendment to a claim that raises the amount of the demand so that the filing fee under paragraph (3) of subdivision (b) would be charged, the filing fee for the amended claim or amendment is twenty-five dollars ($25).
(3) If, after having filed a claim and paid the required fee under paragraph (1) of subdivision (b), a party files an amended claim or amendment to a claim that raises the amount of the demand so that the filing fee under paragraph (3) of subdivision (b) would be charged, the filing fee for the amended claim or amendment is forty-five dollars ($45).
(4) The additional fees paid under this subdivision are due upon filing. The court shall not reimburse a party if the party's claim is amended to demand a lower amount that falls within the range for a filing fee lower than that originally paid.
(e) Each party filing a claim shall file a declaration with the claim stating whether that party has filed more than 12 other small claims in the state within the last 12 months.
(f) The clerk of the court shall deposit fees collected under this section into a bank account established for this purpose by the Administrative Office of the Courts and maintained under rules adopted by or trial court financi! al polic ies and procedures authorized by the Judicial Council under subdivision (a) of Section 77206 of the Government Code. The deposits shall be made as required under Section 68085.1 of the Government Code and trial court financial policies and procedures authorized by the Judicial Council.
(g)
(1) The Administrative Office of the Courts shall distribute six dollars ($6) of each thirty-dollar ($30) fee, eight dollars ($ 8) of each fifty-dollar ($50) fee, ten dollars ($10) of each seventy-five-dollar
($75) fee, and fourteen dollars ($14) of each one hundred-dollar ($ 100) fee collected under subdivision (b) or (c) to a special account in the county in which the court is located to be used for the small claims advisory services described in Section 116.940, or, if the small claims advisory services are administered by the court, to the court. The Administrative Office of the Courts shall also distribute two dollars
($2) of each seventy-five-dollar ($75) fee collected under subdivision (b) to the law library fund in the county in which the court is located.
(2) From the fees collected under subdivision (d), the Administrative Office of the Courts shall distribute two dollars ($2) to the law library fund in the county in which the court is located, and three dollars ($3) to the small claims advisory services described in Section 116.940, or, if the small claims advisory services are administered by the court, to the court.
(3) Records of these moneys shall be available from the Administrative Office of the Courts for inspection by the public on request.
(4) Nothing in this section precludes the court or county from contracting with a third party to provide small claims advisory services as described in Section 116.940.
(h) The remainder of the fees collected under subdivisions (b), (c), and (d) shall be transmitted monthly to the Controller for de! posit in the Trial Court Trust Fund.
(i) All money distributed under this section to be used for small claims advisory services shall be used only for providing those services as described in Section 116.940. Nothing in this section shall preclude the county or the court from procuring other funding to comply with the requirements of Section 116.940.
§ 116.231 Civ. Proc.
(a) Except as provided in subdivision (d), no person may file more than two small claims actions in which the amount demanded exceeds two thousand five hundred dollars ($2,500), anywhere in the state in any calendar year.
(b) Except as provided in subdivision (d), if the amount demanded in any small claims action exceeds two thousand five hundred dollars ($2,500), the party making the demand shall file a declaration under penalty of perjury attesting to the fact that not more than two small claims actions in which the amount of the demand exceeded two thousand five hundred dollars ($2,500) have been filed by that party in this state within the calendar year.
(c) The Legislature finds and declares that the pilot project conducted under the authority of Chapter 1196 of the Statutes of 1991 demonstrated the efficacy of the removal of the limitation on the number of actions public entities may file in the small claims courts on claims exceeding two thousand five hundred dollars ($2,500).
(d) The limitation on the number of filings exceeding two thousand five hundred dollars ($2,500) does not apply to filings where the claim does not exceed five thousand dollars ($5,000) that are filed by a city, county, city and county, school district, county office of education, community college district, local district, or any other local public entity. If any small claims action is filed by a city, county, city and county, school district, county office of education, commun! ity coll ege district, local district, or any other local public entity pursuant to this section, and the defendant informs the court either in advance of the hearing by written notice or at the time of the hearing, that he or she is represented in the action by legal counsel, the action shall be transferred out of the small claims division. A city, county, city and county, school district, county office of education, community college district, local district, or any other local public entity may not file a claim within the small claims division if the amount of the demand exceeds five thousand dollars ($5,000).
§ 116.240 Civ. Proc.
(a) With the consent of the parties who appear at the hearing, the court may order a case to be heard by a temporary judge who is a member of the State Bar, and who has been sworn and empowered to act until final determination of the case.
(b) Prior to serving as a temporary judge in small claims court, on and after July 1, 2006, and at least every three years thereafter, each temporary judge shall take the course of study offered by the courts on ethics and substantive law under rules adopted by the Judicial Council.
The course shall include, but not be limited to, state and federal consumer laws, landlord-tenant law along with any applicable county specific rent deposit law, the state and federal Fair Debt Collection Practices Acts, the federal Truth in Lending Act, the federal Fair Credit Billing Act, the federal Electronic Fund Transfer Act, tort law, and contract law, including defenses to contracts and defenses to debts. On substantive law, the courts may receive assistance from the Department of Consumer Affairs, to the extent that the department is fiscally able to provide that assistance.
§ 116.250 Civ. Proc.
(a) Sessions of the small claims court may be scheduled at any time and on any d! ay, incl uding Saturdays, but excluding other judicial holidays.
(b) Each small claims division of a superior court with seven or more judicial officers shall conduct at least one night session or Saturday session each month for the purpose of hearing small claims cases other than small claims appeals. The term "session" includes, but is not limited to, a proceeding conducted by a member of the State Bar acting as a mediator or referee.
§ 116.320 Civ. Proc.
(a) A plaintiff may commence an action in the small claims court by filing a claim under oath with the clerk of the small claims court in person, by mail, by facsimile transmission if authorized pursuant to Section 1010.5, or by electronic means as authorized by Section 1010.6.
(b) The claim form shall be a simple nontechnical form approved or adopted by the Judicial Council. The claim form shall set forth a place for
(1) the name and address of the defendant, if known;
(2) the amount and the basis of the claim;
(3) that the plaintiff, where possible, has demanded payment and, in applicable cases, possession of the property;
(4) that the defendant has failed or refused to pay, and, where applicable, has refused to surrender the property; and (5) that the plaintiff understands that the judgment on his or her claim will be conclusive and without a right of appeal.
(c) The form or accompanying instructions shall include information that the plaintiff
(1) may not be represented by an attorney, (2) has no right of appeal, and (3) may ask the court to waive fees for filing and serving the claim on the ground that the plaintiff is unable to pay them, using the forms approved by the Judicial Council for that purpose
§ 116.330 Civ. Proc.
(a) When a claim is filed, the clerk shall schedule the case for hearing and shall issue an order directing the parties to appear at th!
e
t ime set for the hearing with witnesses and documents to prove their claim or defense. The case shall be scheduled for hearing no earlier than 20 days but not more than 70 days from the date of the order.
(b) In lieu of the method of setting the case for hearing described in subdivision (a), at the time a claim is filed the clerk may do all of the
following:
(1) Cause a copy of the claim to be mailed to the defendant by any form of mail providing for a return receipt.
(2) On receipt of proof that the claim was served as provided in paragraph (1), issue an order scheduling the case for hearing in accordance with subdivision (a) and directing the parties to appear at the time set for the hearing with witnesses and documents to prove their claim or defense.
(3) Cause a copy of the order setting the case for hearing and directing the parties to appear, to be served upon the parties by any form of mail providing for a return receipt.
§ 116.410 Civ. Proc.
(a) Any person who is at least 18 years of age, or legally emancipated, and mentally competent may be a party to a small claims action.
(b) A minor or incompetent person may appear by a guardian ad litem appointed by a judge of the court in which the action is filed.
