(Wow, a New Years resolution to lay off posting and it lasted a day.)
Ok, I can name them both. But do I have enough evidence with the emails he replied to me against him?
No, actually you don’t, but do it. Rules of procedure and evidence are relaxed in Small Claims. They’re not ignored or abandoned but they are “elastic”. The judge is likely to receive evidence that is not otherwise admissible (like emails, text messages, recorded conversations and videos). He/she is expected to self-monitor. The evidence may be given some weight or may be mentally disregarded in reaching a decision. You’ll never know. Fortunately, in your state, courts are bound by law and equity. Equity will give you more latitude.
Much will depend on how you present your case. Use the “search” function to see the numerous times that has been addressed. You won’t have much time (10-20 min. total). Presentation is critical. It will make or break the poor case that you’re stuck with. Then LISTEN to what the other guy is saying. To prevail, it’s your job to refute it. You need to prove that it’s at least 51% (to his 49%) that you have a valid claim. If you can’t, he wins without saying a word.
Since there were no written contract, am I taking a big risk on taking him to court and end up with nothing?
Any litigation is a risk. Hypothetically, the odds are 50/50 starting any case. Anyone who tells you differently is someone you should run from, and only your knowledge and preparation changes the odds. That’s why 95% of civil cases settle. 85% of Small Claims cases go to hearing. People think right makes might. You shouldn't end up with nothing, but there may be a small cost.
If you take both to court you’re taking a risk. Unless the company is a sole proprietorship, you loaned money to him or to the company. When you take them both, you have one defendant that is not liable. It’s axiomatic. If the company is not a sole proprietorship, there is the likelihood that one defendant will be cut free. That defendant can claim the costs of defense. Since costs are the filing fee and only about $50, that’s you’re risk. Plus, if it’s him, he has to remember to claim it. You’re-out-of-pocket enough to justify the risk, based on what’s posted. We don’t know if the company is or isn’t a sole proprietorship. If it is, you don’t have “both”; you only have one defendant: “John Doe dba Acme Sales”.
The amount totals about $5500 including fees, interest and principle.
It may but, without a written agreement, it’s unlikely that a CA SC court will add loan fees and interest. Ask for interest from date of default. If you get an award and you’re lucky, the court may grant it, but you have no proof that the loan was to earn interest. Get a judgment for the loan (principal) and consider yourself lucky.
I do have couple emails saying that he was going to pay $1000 of it by December 1st
I hope that I’m mistaken, but this sounds like 12/1/08. If that’s true, you have a problem and you best hope is that the court doesn’t catch it or looks the other way. This is the problem: you made a loan of $5K. It was not memorialized, so no repayment provisions are spelled out. You have emails that you want to use to prove your claim, and one of the emails specifies repayment of 1/5 in one year. Nothing shows any other time period. Why can’t I infer that the loan was to be repaid over 5 years? If I can infer that, why can’t I, as the judge, conclude that your claim is not “ripe” for adjudication and won’t be until December, 2012, when all $5K will be due? If I decide that, I ask you to come back later.
I think that you have to go for it, but your blocks are about 20 yds. behind the starting line and these are the obstacles that you have to overcome. There is limited discovery in CA SC, but I’d use proof of the transfer of funds from you to your boss/company, and I’d subpoena records of a concurrent deposit into his/its account. It’s some help.
OP – I’m not picking on you. I don’t post to do that, and you can trust that these are things the court will consider, if your defendant(s) respond and it goes to trial.
(People, you can buy a form Promissory Note, specific to your state, for about $10 in any stationery store. It is getting so boring to see on this site the repeated posts of those who have lent/shared/agreed to split/helped/were promised money from roommates/friends/BFs/GFs/relatives/co-workers and want to recover using email/text messaging/promises/receipts/answering machine tapes that you’re better getting the same 100s of responses without registering. Just use the “search” function. The responses don’t change.)
