Article 3 - Actions

California Code of Civil Procedure — §§ 116.310-116.390

Sections (7)

Amended by Stats. 2004, Ch. 182, Sec. 7. Effective January 1, 2005. Operative July 1, 2005, by Sec. 64 of Ch. 182.

(a)No formal pleading, other than the claim described in Section 116.320 or 116.360, is necessary to initiate a small claims action.

(b)The pretrial discovery procedures described in Section 2019.010 are not permitted in small claims actions.

§ 116.320

Amended by Stats. 2007, Ch. 738, Sec. 4. Effective January 1, 2008.

(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

Amended by Stats. 2005, Ch. 706, Sec. 4. Effective January 1, 2006.

(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 the time 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.

§ 116.340

Amended by Stats. 2005, Ch. 706, Sec. 5. Effective January 1, 2006.

(a)Service of the claim and order on the defendant may be made by any one of the following methods:

(1)The clerk may cause a copy of the claim and order to be mailed to the defendant by any form of mail providing for a return receipt.

(2)The plaintiff may cause a copy of the claim and order to be delivered to the defendant in person.

(3)The

plaintiff may cause service of a copy of the claim and order to be made by substituted service as provided in subdivision (a) or (b) of Section 415.20 without the need to attempt personal service on the defendant. For these purposes, substituted service as provided in subdivision (b) of Section 415.20 may be made at the office of the sheriff or marshal who shall deliver a copy of the claim and order to any person authorized by the defendant to receive service, as provided in Section 416.90, who is at least 18 years of age, and thereafter mailing a copy of the claim and order to the defendant’s usual mailing address.

(4)The clerk may cause a copy of the claim to be mailed, the order to be issued, and a copy of the order to be mailed as provided in subdivision (b) of Section 116.330.

(b)Service of the claim and order on the defendant shall be completed at least 15 days before the

hearing date if the defendant resides within the county in which the action is filed, or at least 20 days before the hearing date if the defendant resides outside the county in which the action is filed.

(c)Proof of service of the claim and order shall be filed with the small claims court at least five days before the hearing.

(d)Service by the methods described in subdivision (a) shall be deemed complete on the date that the defendant signs the mail return receipt, on the date of the personal service, as provided in Section 415.20, or as established by other competent evidence, whichever applies to the method of service used.

(e)Service shall be made within this state, except as provided in subdivisions (f) and (g).

(f)The owner of record of real

property in California who resides in another state and who has no lawfully designated agent in California for service of process may be served by any of the methods described in this section if the claim relates to that property.

(g)A nonresident owner or operator of a motor vehicle involved in an accident within this state may be served pursuant to the provisions on constructive service in Sections 17450 to 17461, inclusive, of the Vehicle Code without regard to whether the defendant was a nonresident at the time of the accident or when the claim was filed. Service shall be made by serving both the Director of the California Department of Motor Vehicles and the defendant, and may be made by any of the methods authorized by this chapter or by registered mail as authorized by Section 17454 or 17455 of the Vehicle Code.

(h)If an action is filed against a principal and his or her

guaranty or surety pursuant to a guarantor or suretyship agreement, a reasonable attempt shall be made to complete service on the principal. If service is not completed on the principal, the action shall be transferred to the court of appropriate jurisdiction.

§ 116.360

Amended by Stats. 2006, Ch. 167, Sec. 4. Effective January 1, 2007.

(a)The defendant may file a claim against the plaintiff in the same action in an amount not to exceed the jurisdictional limits stated in Sections 116.220, 116.221, and 116.231. The claim need not relate to the same subject or event as the plaintiff’s claim.

(b)The defendant’s claim shall be filed and served in the manner provided for filing and serving a claim of the plaintiff under Sections 116.330 and 116.340.

(c)The defendant shall cause a copy of the claim and order to be served on the plaintiff at least five days before the hearing date, unless the defendant was served 10 days or less before the hearing date, in which event the defendant shall cause a copy of the defendant’s claim and order to be served on the plaintiff at least one day before the hearing date.

§ 116.370

Amended by Stats. 2002, Ch. 806, Sec. 4. Effective January 1, 2003.

(a)Venue and court location requirements in small claims actions shall be the same as in other civil actions. The court may prescribe by local rule the proper court locations for small claims actions.

(b)A defendant may challenge venue or court location by writing to the court and mailing a copy of the challenge to each of the other parties to the action, without personally appearing at the hearing.

(c)In

all cases, including those in which the defendant does not either challenge venue or court location or appear at the hearing, the court shall inquire into the facts sufficiently to determine whether venue and court location are proper, and shall make its determination accordingly.

(1)If the court determines that the action was not commenced in the proper venue, the court, on its own motion, shall dismiss the action without prejudice, unless all defendants are present and agree that the action may be heard. If the court determines that the action was not commenced in the proper court location, the court may transfer the action to a proper location pursuant to local rule.

(2)If the court determines that the action was commenced in the proper venue and court location, the court may hear the case if all parties are present. If the defendant challenged venue or court location and all

parties are not present, the court shall postpone the hearing for at least 15 days and shall notify all parties by mail of the court’s decision and the new hearing date, time, and place.

§ 116.390

Amended by Stats. 2006, Ch. 167, Sec. 5. Effective January 1, 2007.

(a)If a defendant has a claim against a plaintiff that exceeds the jurisdictional limits stated in Sections 116.220, 116.221, and 116.231, and the claim relates to the contract, transaction, matter, or event which is the subject of the plaintiff’s claim, the defendant may commence an action against the plaintiff in a court of competent jurisdiction and request the small claims court to transfer the small claims action to that court.

(b)The defendant may make the request

by filing with the small claims court in which the plaintiff commenced the action, at or before the time set for the hearing of that action, a declaration stating the facts concerning the defendant’s action against the plaintiff with a true copy of the complaint so filed by the defendant against the plaintiff. The defendant shall cause a copy of the declaration and complaint to be personally delivered to the plaintiff at or before the time set for the hearing of the small claims action.

(c)In ruling on a motion to transfer, the small claims court may do any of the following:

(1)render judgment on the small claims case prior to the transfer; (2) not render judgment and transfer the small claims case; (3) refuse to transfer the small claims case on the grounds that the ends of justice would not be served. If the small claims action is transferred prior to judgment, both actions shall be tried together in the transferee court.

(d)When the small claims court orders the action transferred, it shall transmit all files and papers to the transferee court.

(e)The plaintiff in the small claims action shall not be required to pay to the clerk of the transferee court any transmittal, appearance, or filing fee unless the plaintiff appears in the transferee court, in which event the plaintiff shall be required to pay the filing fee and any other fee required of a defendant in the transferee court. However, if the transferee court rules against the plaintiff in the action filed in that court, the court may award to the defendant in that action the costs incurred as a consequence of the transfer, including attorney’s fees and filing fees.