5 minute read
A Manager's Guide to Small Claims Court
By Stephen Levine, Esq.
Small claims court can be simple if you are prepared. You should ask a lawyer for advice before you go to court, but you cannot have a lawyer with you in court. Owners can sue associations for claims up to $12,500 and associations are limited to $6,250. ADR is not required before a small claims case is filed.
TYPES OF CASES:
Homeowners as Plaintiffs
Homeowners typically file cases related to elections, records, and/or property damage.
Elections
Homeowners file small claims election lawsuits (i) if the association has restricted access to association resources, (ii) regarding issues concerning receipt of ballots, (iii) concerning the counting, tabulation, reporting of, or access to ballots for inspection, (iv) concerning review of ballots after tabulation and (v) concerning alleged violations of election rules.
Records Inspection
Homeowners file small claims lawsuits to enforce their right to inspect and copy the association’s records.
Property Damage
Homeowners sue associations for damage to their property caused by association property (e.g., pipe bursting, roof leaks). Many courts attempt to “bend over backwards” to accommodate homeowners against associations even where negligence is absent. Therefore, even though the association may be legally correct and not liable, there is a possibility that the association could lose in court. PRACTICE TIP: The association may wish to reach a settlement with a release so that it does not become involved in litigation over a relatively minor matter.
Association As Plaintiff
Associations may file a case if a homeowner fails to pay properly levied fines. Similarly, if assessment debt is less than $1,800 the association may not collect the debt through judicial or nonjudicial foreclosure but can file a small claims lawsuit to collect that debt. (Civil Code §5720(b).)
Who May Appear
Associations may appear and participate in small claims trials through an agent, property manager, bookkeeper, officer or director. If the case is fact intensive, where a homeowner claims disparate treatment or association is acting unreasonably, board members with knowledge of such facts should attend. The board should not simply delegate the association’s defense to the manager as it is the board that makes the association’s binding decisions.
Case Preparation
Consult with counsel regarding applicable laws and preparation for trial. Counsel can assist with drafting direct and cross-examination questions, a script, bullet points for arguments and preparing witnesses. Distill the essential elements of your case and how you will prove them. Then present them to the court in a clear and concise manner. Many courts require that trial evidence be submitted to the opposing side and courtroom at least 10 days before trial and indexed on a court filing (i.e., LA Superior Court Form Civ 278.) Failure to comply could result in evidence being excluded, or a trial continuance. PRACTICE TIP: Have counsel check the local court rules and provide advice and any required forms.
You must be prepared with all your witnesses and evidence to prove your case. If your witnesses are unwilling to come to court, you can request the court clerk issue a subpoena. If you require records or papers from a third party, you may request the court clerk issue a subpoena duces tecum, which orders the documents be brought to court for the trial. PRACTICE TIP: Counsel can assist in the preparation of these subpoenas.
Postponing The Trial Date
Continuances may be requested for good cause by either party. It must be requested on a court form but does not guarantee the continuance will be granted. If the judge grants the request, the clerk will send out notice of the continuance. If the judge denies the request, the parties must appear on the scheduled trial date.
PRACTICE TIP: Request a continuance at least two weeks before the trial; if the request is submitted too close to trial date, the judge will decide whether to grant the request on the day of trial. The parties should be prepared to proceed with the case if the continuance request is denied.
Judge Pro Tem/Commissioner
Small claims courts frequently use pro tem judges, who are lawyers trained to hear and decide small claims cases. A small claims commissioner is a step above a pro tem and a step below a judge. Commissioners are hired full-time to hear small claims cases.
The court clerk will ask you to stipulate to the judge pro tem or commissioner.
PRACTICE TIP: You do not have to stipulate to use a judge pro tem or commissioner. Many of the judge pro tems and commissioners do not understand CID law. You can request that a sitting judge hear the case. If a sitting judge is unavailable, you may have to come back another day.
Erroneous Ruling
Even though a losing plaintiff cannot appeal, either party can move to vacate a small claims judgment on the basis of clerical error or an incorrect or erroneous legal basis.
What Happens After The Judgement is Entered?
The defendant has 30 days to appeal a small claims decision. The plaintiff has no right to appeal. Enforcement of the judgment is stayed (postponed) until after the time for appeal ends or until after the appeal is decided.
If a small claims decision is appealed, the matter is heard in Superior Court and each side may be represented by an attorney. The case is heard de novo, i.e., brand new as if it had not been heard before. There is no right of discovery and the matter is heard without a jury. The decision by the Superior Court judge is final and binding with no right to appeal.
How Can the Association Enforces Its Judgment?
An abstract of judgment form is prepared and issued by the court, to be recorded in any county where the losing party owns or may own property. This creates a lien against the property. The judgment may be satisfied by levying against bank accounts, garnishing wages, selling personal property (vehicles, boats), levying any rental income, and recording a judgment lien against real property.
