In a moment of weakness, over a few beers, a
couple of Margaritas, and a Long Island Iced Tea, which a friend
assures you has no alcoholic content, you loan $3,500 to your
friend. You thought he said he had a medical need and would
race back with the money as quickly as possible. He actually
said he had an emotional need to go to the racetrack and would
get back to you as quickly as possible.
After the gestation period for a thoroughbred
[1] passes and no
money is forthcoming, you consider alternatives of mayhem upon
his person or Small Claims Court. As a rational person, you
pick the legal alternative, Small Claims Court!
Can you sue in Small Claims Court for $3,500?
Yes! Small Claims Court has jurisdiction over cases in which
the amount demanded by the plaintiff, including interest, does
not exceed $5,000; however, you cannot file more than two actions
for more than $2,500 anywhere in California during a calendar
year. [Claims against guarantors are always limited to $2,500.]
You live in Santa Monica, the debtor lives in
Burbank, and the loan was made in an Inglewood saloon! Where
do you sue? The rules for determining venue, i.e., place of
suit, are the same in Small Claims Court as those rules prevailing
in the Municipal and Superior Courts. Although the place for
performance is frequently acceptable, the general rule and judicial
preference is that your suit be maintained in the judicial district
in which the defendant resides at the time the action is commenced.
An opportunity is thus at hand to visit beautiful downtown Burbank!
You know that the debtor's brother is an attorney.
Does that mean you can expect the debtor's brother to appear
on his behalf and that you will need a lawyer? No! No individual
other than the plaintiff and the defendant can take part in
the conduct or defense of the action. An attorney is generally
not permitted to represent a party in a Small Claims Court action,
except on appeal.
The bartender overheard your discussion with
the debtor regarding the loan and when you would be repaid.
Unfortunately, you discover that the bartender will be on vacation
at the time set for the Small Claims Court hearing. How can
you present the bartender's evidence to the Judge? In Small
Claims Court, the parties can provide evidence through their
own testimony, witnesses testifying in person, or by declarations.
In Small Claims Court, as a general rule, the
formal rules of evidence, including those limiting the admissibility
of hearsay evidence, do not apply. Judges routinely admit all
of the evidence presented and thereafter determine its credibility
and persuasiveness.
At the conclusion of the hearing, the Judge
announces that he will take the matter under submission
[2] and notify the parties by mail of the decision.
You wonder, what if you lose? It is important to remember that
a plaintiff has no right of appeal from a judgment in Small
Claims Court. It is only the defendant, who appears at the hearing,
who may appeal from the judgment. If an appeal is filed, enforcement
of the judgment is automatically suspended.
To your delight and to the consternation of
your former friend, you are successful in Small Claims Court
and receive a judgment for $3,500 plus interest. The debtor
now advises the Judge that he has lost his high-paying job,
is now working for peanuts, and desires to weekly allocate a
few peanut shells in your direction toward the debt. Translation:
the debtor requests an order authorizing payment of the judgment
by installments.
Can the debtor make this request in Small Claims
Court? Yes! An order authorizing payment of a judgment by installments
can be made at the hearing, as part of the original judgment,
at the request of the defendant or on the Court's own motion.
Such an order can also be made at any time after judgment, at
the request of the judgment debtor or on the Court's own motion.
Few judgment debtors simply hand over the money.
Collection of money sufficient to satisfy your judgment is yet
another hurdle to be crossed before you reach the finish line
of success! Perhaps a levy upon the debtor's automobile (in
which he travels to the racetrack) might get his attention!
The moral of the story? There are occasions
in which you can act as your own attorney and not have a fool
for a client!
_______________________________
1 The gestation period for a thoroughbred is within the range
of 320 days to 365 days or longer, but is typically 340 days.
If you knew the answer, tell the next person you see to pat
you on the back!
2 Since I periodically serve as a Small Claims
Court Judge Pro Tem, I can share with you that the decision
is most likely being written by the Judge as you walk out the
door, but is not announced to avoid emotional fireworks in the
courtroom!
