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A few basic Small Claims questions

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What is the name of your state (only U.S. law)? CA

I will be filing a claim against my former landlord for about $800 in security deposit deductions, as well as twice that in treble damages as a bad faith penalty. In going through the paperwork, here are a few questions I have:

1) I lived in the apartment with my wife. Are we both required to be listed as plaintiff's, or can I be the only person listed? She will have difficulty getting off of work in order to show up, and I'm the one who has done all of the legwork in looking up various laws, so I'd rather go it alone if I can. Since her name is on the lease though, I wasn't sure if she's required to be there for the court case.

2) I'll pay $10 to have the court send a certified letter to the defendant in order to serve him the documents. I've read that it's 50/50 whether this method is successful. For those who have experience with these cases, is that typically frowned upon (and used against them) by the judge if they try to avoid being served?

3) If he does not sign the certified mail card, then I'll need to serve him another way. The San Francisco paperwork is clear that I cannot serve him myself (it has to be someone not listed on the case, 18 years or older). Can I be there for the serving though? The documents aren't clear about this part. I assume I can be there as long as I'm not the one who hands him the letter.

4) If he goes out of his way to avoid me and I have to hire a process server, what's the success rate in recovering that cost when the trial is over? I guess this is related to question 2, where the judge might charge him the process server cost as a penalty for trying to avoid being served.


Ideally, I can serve on my own and he signs the certified letter - but I'm just trying to get my ducks in a row in case I run into any issues.

Thanks!
 


Ok, I can post it in the other thread instead. I went back and forth about where to post it, and figured I'd post it here because people with Small Claim's knowledge were more likely to view this forum, and the question at hand doesn't really have anything to do with specific Landlord/Tenant laws. I'll update my old thread in a minute or two.
 

dcatz

Senior Member
Zigner, you're right. That said, let's elevate substance over form. It has happened many times before that duplicate threads get answered or even threads where no state is identified but the only response is obvious. There is no true uniformity.

OP - a question in a like vein was recently posted and an appropriate response was "why continue to kick the can down the road" (when the result was a foregone conclusion)?

1) It's not clear from your question whether the lease was in both your names or was in your wife's name and you intend her to be the only named plaintiff. Either way, You should list the parties on the lease and you can appear without your wife.. If it was in her name alone, you should articulate to the court that you were a tenant at all times relevant ad that you are appearing with her authorization. If it was in both your names, you're still ok; you're just depriving yourself of a percipient supporting witness and that may be superfluous anyway.

2) Nobody can speak to the mindset of the bench officer, but I've never seen it be a problem. The certified mail receipt will either be returned unsigned or not returned at all. If you can establish that it is where the manager resides (by where you were instructed to deliver rent payments or similar evidence, the court should consider that sufficient. If it doesn't, nobody will know until the day of the hearing (the court won't notify you in advance that mail came back unsigned). The worst result is that defendant appears and contests service. The worst result of that is that the court says "Ok, now you know. Are you prepared to go forward today or do you need more time? We'll set another date in X days."

3/4) You can be there, but it's not clear why you'd want to be. As long as the server is otherwise qualified, he/she will have to attest to that fact under penalty of perjury. That will create an evidentiary presumption that service was made and the defendant will have to overcome that. It works or it doesn't (99.9% likely that it does) and there is very little that you contribute. I would be more concerned that you are naming the correct defendant. If you're only naming John Doe, the building manager, you're probably not. Unless John is the building owner, to whom the rent actually goes, you're definitely not. You'd only be naming an employee, who would have a defense and from whom you couldn't collect. Check your lease to make sure your suing the person/entity you actually contracted with.

5) If you win and don't get paid, research an Assignment Order (CCP sect 708.510). It's a court order directing debtors of a (judgment) debtor to pay a judgment creditor and it includes rents. You're the judgment creditor and the other tenants are the debtors of a debtor. Collections should be easy. I'd expect your landlord to offer as soon as you filed the application rather than let other tenants think they were going to have to pay you.
 
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