Judge Roderic Duncan Win Your Lawsuit 4TH EDITION “Nolo is always there in a jam as the nation’s premier publisher of do-it-yourself legal books.” NEWSWEEK Sue in California Superior Court Without a Lawyer • Fill out court forms • Prepare for court • Present your winning case to a judge Free Legal Updates at Nolo.com N O L O ® SUE FOR $25,000 WITHOUT A LAWYER  e Story Dear friends, Founded in 1971, and based in an old clock factory in Berkeley, California, Nolo has always strived to off er clear legal information and solutions. Today we are proud to off er a full range of plain- English law books, legal forms, software and an award-winning website. Everything we publish is relentlessly researched and tested by a dedicated group of in-house legal editors, who together have more than 150 years’ experience. And when legal changes occur after publication, we promptly post free updates at Nolo.com. 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Products & Services “ In Nolo you can trust.” THE NEW YORK TIMES “ Nolo is always there in a jam as the nation’s premier publisher of do-it-yourself legal books.” NEWSWEEK “ Nolo publications…guide people simply through the how, when, where and why of the law.” THE WASHINGTON POST “ [Nolo’s]…material is developed by experienced attorneys who have a knack for making complicated material accessible.” LIBRARY JOURNAL “ When it comes to self-help legal stuff , nobody does a better job than Nolo…” USA TODAY “  e most prominent U.S. publisher of self-help legal aids.” TIME MAGAZINE “ Nolo is a pioneer in both consumer and business self-help books and software.” LOS ANGELES TIMES  e Trusted Name (but don’t take our word for it) Win Your Lawsuit Sue in California Superior Court Without a Lawyer 4th edition by Judge Roderic Duncan Fourth Edition AUGUST 2010 Book Design TERRI HEARSH Cover Design SUSAN PUTNEY Proofreading ROBERT WELLS Index JANET PERLMAN Printing DELTA PRINTING SOLUTIONS, INC. Duncan, Roderic, 1932- Win your lawsuit : sue in California Superior Court without a lawyer / by Roderic Duncan. 4th ed. p. cm. Includes index. Summary: “Many lawsuits involve too much money for Small Claims Court, but the participants cannot a ord an attorney.  is book shows how to prepare and try a case in Califorina Superior Court.  is edition has been completely updated and re ects current court procedures and all forms are explained in detail” Provided by publisher. ISBN-13: 978-1-4133-1075-7 (pbk.) ISBN-10: 1-4133-1075-3 (pbk.) 1. District courts California Popular works. 2. Civil procedure California Popular works. 3. Small claims courts California Popular works. 4. Pro se representation California Popular works. I. Title. KFC968.D86 2010 347.794'05 dc22 2010009292 Copyright © 2003, 2005, 2007, and 2010 by Nolo. All rights reserved.  e NOLO trademark is registered in the U.S. Patent and Trademark O ce. Printed in the U.S.A. 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Dedication One of the most important things a person venturing into court without a lawyer can hope for is an understanding judge. So this book is dedicated to the many understanding California judges who will try to make your experience in their courtroom as easy as possible. e next most important thing I wish for you is a courtroom clerk sympathetic to the problems of a newcomer in this foreign land. In my 20 plus years as a judge, I’ve been fortunate to work with many such clerks. is book is dedicated to all of the user-friendly courtroom clerks in this state—in particular, to former Municipal Court clerks Barbara Bliefert, Jackie Eklund, Connie Harvey, Mike and Leslye Robey, Mark Montgomery, Suzy Johnston, Bernice Garcia, Mary Trafton-Oxendine, and Geny Fabella, and to my Superior Court regulars, Nancy Regas, Leo Tungohan, Miranda Edgerly, and Mary McGlothin. In retirement, I have been fortunate to work with three excellent and consumer-friendly clerks, Deborah Wanzo in Oakland, Angelique Andreozzi in San Francisco, and Jami Jacobson in Siskiyou County. And to my wife, Carol B. ompson, who always made coming home from a harrowing day on the bench something to look forward to. Acknowledgments e author gratefully acknowledges the assistance of: Judge Robert Freedman and attorney Walter Stemmler (both of my alma mater, the Alameda County Superior Court) who carefully guided me through the ever-changing rules and procedures of the California courts. On the statewide scene, Patrick O’Donnell, sta attorney for the California Administrative Oce of the Courts, likewise was invaluable in keeping me up to date on new and anticipated changes in the forms that are displayed throughout the book and in the appendix. Bonnie Hough, Supervising Attorney for the Equal Access Program of the Administrative Oce of the Courts. On top of all of her other accomplishments in making courts more accessible, Ms. Hough designed the “Welcome to the Superior Court” form reproduced in Chapter One after a suggestion I’m proud to have made to her. Nolo Executive Publisher Jake Warner, who conceived the idea for this book and contributed many important suggestions as it went through the editing process; and Steve Elias, who helped form the concept and edited numerous drafts. And, nally, Janet Portman, who edited this book and contributed immensely to making sure the book speaks understandably to those who have never before ventured into a system developed by lawyers for lawyers. Table of Contents Your Courtroom Companion 1 1 Is is Book for You? 3 Who Can Use is Book 4 Lawsuits Covered in is Book 5 Lawsuits is Book Does Not Cover 10 When You Have a Choice: Small Claims Court 12 e Pros and Cons of Representing Yourself 13 e Course of a Typical Limited Jurisdiction Case 17 Finding the Law, on Paper and Online 18 General Instructions for Filling Out Your Forms 19 2 Do You Have a Good Case? 21 Is Your Case Fresh Enough? 22 Evaluating the Evidence 23 Preserve Your Evidence Now 26 Can You Collect the Judgment If You Win? 29 How Much Should You Sue For? 30 3 Can’t We Settle Somehow? 35 Why Would You Want to Settle Out of Court? 36 How Much Are You Willing to Settle For? 36 Should You Use a ird Person to Help You Settle? 37 Making a Settlement Offer 39 Taking Care of the Details 43 Should a Lawyer Review the Settlement Agreement? 45 If You’re Worried About Getting Paid 48 4 Deciding Where and Whom to Sue 49 Selecting the Plaintiff(s) 50 Selecting the Defendant(s) 51 Making Sure You Can Sue in California 63 Selecting the Right Court 65 5 Preparing the Complaint 69 Beginning Your Tort or Contract Complaint 70 Tort Complaints: Personal Injury, Property Damage, and Wrongful Death 73 Contract Complaints 92 Complaints for Other Types of Lawsuits 108 Preparing the Summons and Cover Sheet 110 Preparing a Case Questionnaire 112 Requesting a Waiver of the Filing Fee 113 Preparing an Attachment 117 6 Filing the Papers 119 Call the Clerk’s Office 120 Photocopy Your Documents 120 Filing the Papers 121 7 Serving the Papers on the Defendants 125 Completing the Summons 126 Serve Your Papers by Mail 126 Selecting a Process Server 128 Serving the Summons and Complaint 128 Completing the Proof of Service 130 Serving Other Papers as the Case Proceeds 134 8 Lawsuits from the Defendant’s Point of View 135 Initial Steps 136 Decide Whether to Represent Yourself 142 Ask for More Time 143 Prepare an Answer 144 Prepare a Cross-Complaint 160 File and Serve the Answer and Cross-Complaint 164 What Happens Next? 164 [...]... necessary, it may even provide a lawyer to sue on your behalf You can find more information, including office locations, at www.dir.ca.gov/DLSE • Lawsuits involving an issue covered by federal law, such as the patent laws or the bankruptcy laws Cases involving federal laws cannot be heard in state Superior Court They must be brought in a federal court • Cases brought against you by the government for back... the amount of the interest already paid Gambling All gambling is illegal in California except horse racing, the casinos operated by some Indian tribes, card rooms permitted by some cities, and the state lottery Lawsuits to collect debts based on gambling are usually unenforceable If you want to sue on a contract involving illegal gambling or some other criminal activity, consult a lawyer Services by an... Lawsuits Covered in This Book Most of the cases this book deals with are what the law calls tort or contract cases A tort case involves personal injury or property damage, the result of an intentional or negligent act by another person For example, a lawsuit arising out of a traffic accident is a tort case So is a lawsuit involving a slip and fall at a supermarket A contract case is normally one in. .. up The dealer had claimed that the car was almost new and that the engine was in great shape But Elaine’s mechanic told her that the engine was shot and that replacement and repairs will cost more than $8,000 The dealer won’t discuss it Example 6: Francisco told a salesperson at a computer store that he needed a system to handle a sizable database and state-of-theart software The salesperson talked him... of Superior Court and you lose, you can appeal if you believe the judge has made a legal mistake (As explained in Chapter 16, an appeal can be quite expensive and complicated, but in the right case it can be an important protection.) The Losing Defendant Can Get a Second Shot A second disadvantage for Small Claims Court plaintiffs is that if the defendant loses, the defendant can ask that the case... any tactical advantage you enjoyed in the first trial will be lost By contrast, either a defendant or plaintiff can appeal after losing a limited jurisdiction case This appeal won’t involve arguing the facts again, and will be confined to arguing whether the judge made a legal mistake No Frequent Visitors California s Small Claims Court has one more wrinkle: You can sue for over $2,500 only twice in. .. plaintiffs to win In addition, it’s usually hard for the plaintiff to prove that the defendant’s writings or statements caused an actual loss Winning such cases (and successfully defending against them) usually ChaPter 1  |  Is This Book for You?  |  7 requires a lawyer who knows this area of the law • Fraud Here, a plaintiff claims that a defendant misrepresented or concealed a fact, usually in connection... “punitive” damages are rarely awarded, and usually only in cases involving more than $25,000 Chapter 5 includes a discussion of punitive damages • Cases in which your auto or homeowner’s insurance company has already paid you some money for your damages If this describes your situation, talk to your company before suing The company may have negotiated a settlement with the defendant that legally prevents... suing Breach of Contract Cases A contract is an agreement between individuals, businesses, or an individual and a business Many transactions involve contracts, even if nothing is written down A plaintiff might bring a breach of contract lawsuit after buying something that wasn’t what it was represented to be, or after hiring someone who didn’t do what he or she was supposed to do In general, your case... Tort Cases When a plaintiff claims that a defendant intentionally or carelessly caused injury or damage, the plaintiff’s case is called a tort case Tort cases have three basic legal requirements (lawyers call them elements): • the defendant acted either carelessly or intentionally • the plaintiff was injured physically or emotionally, or the plaintiff’s property was damaged, or both, and • the defendant’s . Duncan Win Your Lawsuit 4TH EDITION “Nolo is always there in a jam as the nation’s premier publisher of do-it-yourself legal books.” NEWSWEEK Sue in California Superior Court Without a Lawyer •. Sure You Can Sue in California 63 Selecting the Right Court 65 5 Preparing the Complaint 69 Beginning Your Tort or Contract Complaint 70 Tort Complaints: Personal Injury, Property Damage, and Wrongful. Self-Representation 14 e Course of a Typical Limited Jurisdiction Case 17 Finding the Law, on Paper and Online 18 California Statutes 18 California and Local Court Rules 19 Cases 19 Getting Information About