Ten tips for winning your personal injury or diminished value in small claims court

Some personal injury and property damage claims, including diminished value, are not large enough to hire a lawyer. Small Claims Court is often an excellent alternative. Here are ten tips for successfully winning your claim:

  1. How much can I request?

    An individual in California can bring a claim for personal injuries or property damage, including diminished value, for up to $10,000 (C.C.P. § 116.221). If you win your case, you’re entitled to reimbursement of the costs of the action, including the costs of serving the defendant (C.C.P. § 116.610 (g)(1)).

  2. How do I file my claim?

    Claims for personal injuries or property damage, including diminished value, should be brought in the Small Claims Court nearest where the accident occurred, or where the responsible driver lives (C.C.P. § 116.370). A claim is begun by filing a simple, nontechnical form approved or adopted by the Judicial Council under oath that includes (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, demanded payment; (4) that the defendant failed or refused to pay; and (5) that the plaintiff understands that the judgment will be conclusive and without a right of appeal (C.C.P. § 116.320).

  3. Who do I sue?

    Claims for personal injuries or property damage (including diminished value) should be filed against the responsible driver and/or the registered owner. Do not name their insurer. Insurance companies are not parties to the action, but are required to pay if your claim is successful.

  4. How do I serve my claim on the responsible driver and/or the registered owner?

    There are several ways to serve a claim. The most common way is to request service by the sheriff or marshal’s office. Service of the claim must be completed at least fifteen days before the hearing date if the defendant resides within the county in which the action is filed, or at least twenty days before the hearing date if the defendant resides outside the county (C.C.P. § 116.340).

  5. Who will be representing the other driver at the hearing?

    Attorneys are not permitted to represent either party in Small Claims Court (C.C.P. § 116.530). An insurer may render “assistance” except during the actual hearing. Insurers can also testify to facts which they have personal knowledge and are competent to testify (C.C.P. § 116.531). Even during the hearing, the adjuster may assist a party that cannot “properly present” a defense and needs “assistance” (C.C.P. § 116.540(l)).

  6. How long does it take?

    Once a claim is filed in Small Claims Court the hearing will be scheduled no earlier than twenty days nor more than seventy days (C.C.P. § 116.360). When necessary, the Court may grant a postponement of the hearing (C.C.P. § 116.570). The hearings themselves are relatively quick and informal, the object being to dispense justice promptly, fairly, and inexpensively.

  7. How do I prove my personal injury case?

    Be prepared! Bring three copies of everything you may need, including: an outline of the facts and itemization of your damages; the Police Report; photos of the damage to the vehicles; car repair estimates; proof of your insurance coverage; copies of your medical and/or chiropractic records and bills; and, verification of your lost wages. If the other party denies fault, bring photos of the scene, a diagram, or anything else that may explain how the accident happened and why the other driver is at fault.

  8. How do I prove my property damage and diminished value claim?

    The same suggestions apply for winning your property damage claim and/or diminished value claim, except there’s no need to bring medical information. Bring three copies of the repair estimate, rental receipts, itemization of any days for which you’re seeking Loss of Use of your vehicle, and your Diminished Value Appraisal Report. Many judges are unfamiliar with diminished value claims so bring a copy of the jury instruction to show the judge so he doesn’t have to research the law. Visit our website to download a copy of the current jury instruction.

  9. Can I appeal?

    No, a party bringing a claim cannot appeal. Only a defendant has the right to appeal the judgment. A defendant who fails to appear at the hearing has no right to appeal, unless he successfully files a motion to vacate the judgment. An insurance company has its own right to appeal if a Plaintiff’s small claims judgment exceeds $2500 (C.C.P. § 116.710).

  10. What if I win and the other party or their insurance company appeals?

    Appeals to the superior court must be filed no later than thirty days after notice of the judgement to the parties. The superior court will then schedule a hearing before a new judge. The appeal hearing is conducted informally, but an attorney can assist either party at the appeal hearing (C.C.P. § 116.530(c) (3)). The superior court can award reimbursement of attorney fees not exceeding $150 for good cause. If the court finds the other party and/or insurance company’s appeal was “without substantial merit and not based on good faith” but was intended to harass or delay the claim or to encourage you to abandon the claim” the court may award up to $1,000 in attorney fees (C.C.P. § 116.790).

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There are several online sites you can also visit to find information to assist you in pursuing Small Claims Court matters, including: http://www.courts.ca.gov/selfhelp-smallclaims.htm

If the case is in Orange County you can find additional information at: http://www.occourts.org/directory/small-claims/.

For forms, visit eFiling directly by using this link towards the bottom that states “CLICK HERE to begin and eFile your Small Claims action (Plaintiff’s Claim): http://www.occourts.org/directory/small-claims/efiling.html

Please feel free to contact our office with any other questions and let us know how things go at Small Claims Court so we can advise future clients of your experience. If you win at Small Claims Court but the insurer appeals the decision, Kerr & Sheldon can assist you with fighting the appeal.