Small-claims court is designed to provide a legal forum for resolving disputes over relatively small sums of money in an informal setting. Lawyers are generally prohibited from representing parties in small-claims court. (See Code Civ. Proc, § 116.530(a).) Nonetheless, attorneys can play an important role in the process, both before and after the small claims dispute resolution procedure.
The objective of this article is to familiarize bench officers and lawyers with small claims procedures and the extent that attorneys are permitted to participate. Readers will learn about the nuts and bolts of small-claims court procedures, the general bar to parties being represented by lawyers, and exceptions to the bar, including, attorneys’ ability to counsel parties in small claim actions, being authorized to appear to represent their own interests, said a personal injury lawyer in Los Angeles, such as collection of delinquent legal fees, and being able to represent parties in judgment enforcement procedures and on appeal.
Whirlwind review of small-claims procedures
Small-claims actions are delineated almost entirely by statute. (See Code Civ. Proc., §§ 116.110, et. seq.; all further citations to this code unless otherwise stated.) Specific provisions cover jurisdiction, venue, service, trials, recovery of costs, and appeals. Due to the informal nature of the proceedings, under CCP 116.310 normal discovery mechanisms available in regular civil actions are not available in small-claims court, advised Mr. Wade, a Los Angeles business attorney.
The jurisdictional limit for any action in small-claims court in California for natural persons is $7,500. (§ 116.221.) When the litigant is a corporation, partnership or other entity, the limit is even less, just $5,000. (§ 116.220(a) (1).) Even without the general bar to attorneys representing litigants, economics greatly restrict attorneys’ practice in small-claims court because it often costs more than the jurisdictional limit just to hire a lawyer
In addition to being able to award monetary damages, the small-claims court also has some equitable powers. For example, the court can “grant equitable relief in the form of rescission, restitution, reformation, and specific performance, in lieu of, or in addition to, monetary damages.” (§ 116.220(b).)
The proper venue or place to file the small-claim action is generally the same as in any civil case. (See § 116.370(a).) This is normally the place closest to where a defendant resides, where a contract was signed, or where an accident occurred. (See §§ 392-395, 1812.10, 2984.4.) Local courts are expressly allowed to provide for the proper location to file the suit. (§ 116.370(a).) For example, Los Angeles County’ requires that small-claims actions be filed in accordance with the rules for other civil cases set forth above, and then has the plaintiff use a chart to determine which court to use. (See Sup. Ct. L-A. County, Local Rules, rule 2.0(b) (2).)
Regarding service, once the action is filed, the clerk sets a date for the hearing on the small claims case and can send the order directing the parties to appear by certified mail. (§§ 116.330, 116.340(a) (1).) Another way of serving the order is to have the plaintiff effectuate service through a sheriff’s deputy, by a hired process server, or by a friend or family member. (See § 414.10.) Service can be made to the person of the defendant or by substituted service. (See § 415.20(a)’ (b).)
No formal answer by a defendant is necessary; (§ 116.310(a).) However, the defendant may choose to file his or her own claim against the plaintiff in the same proceeding, so long as it does not exceed the jurisdictional limit. (§ 360(a).) The defendant must file and serve the claim in the same manner provided for the plaintiff. (§ 360(b).)
The trial in the case is conducted by a bench officer, not a jury. (See § 116.510.) If the defendant fails to appear, the court must still have the plaintiff present evidence to prove the claim. (§ 520(b).) Hearsay is admissible, although it must be relevant, and is subject to being excluded if too time-consuming or possessing little probative value. {Hightailing v. Superior Court (1993) 17 Cal.App.4th 1128, 1137 [21 Cal.Rptr.2d 855].)
A prevailing party can recover its costs in the case. (§ 116.610(g) (1).) Some costs, such as those for service, are always recoverable (§ 116.610(g) (1)); some costs, such as for investigation, are never recoverable (§ 1035(b) (2)); and others can be recovered only upon determination by the court they were necessary, such as subpoenaed witness’s fees (Gov. Code, § 68093).
A plaintiff who loses has no right to appeal, although a plaintiff may appeal an adverse judgment on a defendant’s claim. (§ 116.710(a), (b).) The defendant may appeal a judgment in favor of a plaintiff’s claim. (§ 116.710(b).) “Appeal” is a misnomer here because no actual review is undertaken of the underlying proceeding; the appeal simply consists of a brand new trial before a different bench officer than the one that heard the original trial. (§ 116.770(a).)
General bar to attorney representation
Due to the low jurisdictional limit, attorneys will not want to get involved in small-claims cases simply for pecuniary gain. Attorneys may, however, want to participate pro bono, or they may have claims based on their own injuries or damages, or may need to testify as witnesses.
Section 115.530(a) states that “no attorney may take part in the conduct or defense of a small-claims action,” except as specifically provided for in the statute’s further provisions. Each of these exceptions is discussed below.
An additional bar to attorneys appearing in small claims cases is provided when they seek to participate as interpreters for parties. Unlike in criminal cases, a litigant does not have the automatic right to a free interpreter, but the court can allow the non-English speaking person to bring his or her own interpreter to court. (See § 116.550(a).) However, under this same code provision, the interpreter cannot be an attorney. Allis bar prevents lawyers from representing parties under the guise of acting as interpreters.
Consultation exception
Section 116.530(c) (1) states that the general bar shall not prevent the attorney from “Providing advice to a party to a small-claims action, either before or after commencement of the action.” Even without this statutory exception, litigants may have a constitutional right to consultation.
In City and County of San Francisco u Small Claims Court (1983) 141 Cal.App.3d 470 [190 Cal.Rptr. 340], the Court of Appeal held that a group of plaintiffs that sued an airport for damages due to airplane noise had a constitutional right to consult with attorneys regarding how to file their actions in small-claims court. The Court of Appeal reasoned that the plaintiffs could consult with attorneys as part of their right to assembly under the First Amendment and the right to petition the courts to address their grievances.
Exception for attorneys representing their own interests or to testify
Occasionally an attorney will be the named as a defendant in a small claims case. Sometimes, the attorney will be the plaintiff: seeking to secure payment of an attorney’s retainer or delinquent fees is a common example.
It would be grossly unfair to prevent attorneys from representing themselves in these situations, said many San Diego small business lawyer. The small-claims statute sets forth an exception applicable here.
Under Section 116.530(b), there is no bar to attorneys appearing to maintain or defend an action in any of the following capacities: “(1) by or against himself or herself. (2) By or against a partnership in which he or she is a general partner and in which all the partners are attorneys. (3) By or against a professional corporation of which he or she is an officer or director and of which all other officers and directors are attorneys.”
Additionally, an attorney will some-times be a witness to the subject matter of a small-claims case. This could include instances where the attorney is also a litigant as described above, or when the attorney has no interest in the underlying matter and is simply a bystander.
There is no bar to attorney’s appearing as witnesses. The bar does not prevent an attorney from “Testifying to facts of which he or she has personal knowledge and about which he or she is competent to testify.” (§ 116.530(c) (2).)
Exception to appearing to enforce judgments
Once a judgment has been entered against a party, a big issue becomes its enforcement. Winning a case against a person with zero assets is the epitome of a hollow victory.
The bar to attorneys appearing in small claims cases does not prevent the attorney from “Representing a party in connection with the enforcement of a judgment.” (§ 116.530(c) (4).) Care must be taken that the representation is strictly related to the judgment.
For example, an attorney can definitely represent a party in many proceedings which are directly related to enforcing the judgment, such as obtaining a writ of execution and examining a judgment debtor. (§§ 680.010, ET seq; 116.830.) Yet, an attorney cannot represent a party’ in moving to vacate a judgment. (See 28 Ops. Cal. Attny. Gen. 359 (1956).)
Exception to representation on “appeal”
The general bar does not prevent an attorney from representing a party in an appeal of a small-claims case. (§ 116.530(c) (4).) The “appeal” here is really a trial de novo (See § 116.770(a)), so attorneys may become fully involved in legal representation once an original trial has occurred.
Attorneys on appeal are still restricted by the informal nature of the proceedings: there are no discovery procedures available on appeal, no right to jury trial, and the court need not provide a tentative decision. (§ 116.770(b).)
Attorney’s fees are recoverable by a party following an appeal, however, they are extremely modest. “For good cause and where necessary to achieve substantial justice between the parties,” the court may award attorney’s fees actually spent up to $150. (§ 116.770(c).) If the court believes that the appeal was without merit and not based on good faith, the court may award up to $1,000 in attorney’s fees actually spent. (§ 116.790.)
A last word on legal representation
Legal help is available even without a person hiring a lawyer. Counties must provide all small-claims litigants with a free legal advisor. (§ 116.260.)
Attorneys are not barred from being hired by a county as advisors or from volunteering for this public service. (See § 116.940(e).)
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