CLIPBOARD : FILE IN MUNICIPAL COURT

When secret agent Maxwell Smart uttered those famous words, “missed it by that much,” he said it all for the limits of small claims court.

The dollar cutoff for small claims court is $2,000, but if you have an action worth $2,100, you have “missed it by that much.” Maybe you have decided that you’re willing to forgive $100, but what happens if your claim is worth $3,000? Can you bring yourself to write off $1,000?

Take heart, Maxwell Smart, it may not be necessary to eat $1,000 or $100 or even $10.

Municipal Court, Civil Division, will accept cases up to $25,000. However, be aware that there are a few fundamental differences that separate a small claims action from a civil court matter. The filing fee jumps from $8 to $40. Lawyers are allowed by either or both parties through all phases of the case. More paper work is involved, unless the defendant fails to respond to your summons, and therein lies the final difference. In small claims, court dates are scheduled the same day that claims are filed, and you must make a court appearance to win a judgment--default or otherwise. In civil court, the defendant’s failure to respond to your summons will automatically net you a default judgment without having to set foot in court.

There are also a couple of cautions:

-- Be certain that whoever serves your summons and complaint is competent. Your whole case can fall apart because proof of service is inadequate.

-- Be aware that clerks cannot help you fill out the paper work. Most forms are self-explanatory, but a call to a legal clinic should get you over rough spots.

Here is a thumbnail sketch of the filing procedure:

* Fill out the appropriate complaint, summons and statement of venue forms and file them with the court. (For monetary cases, you must file a complaint-contract form and summons. For an eviction, you must first file a three-day pay-or-quit notice before you can file your complaint-unlawful detainer and summons.)

* Have the defendant served by a process server, a county marshal or a disinterested party who will fill out the proof-of-service form on the back of the summons. (There are different forms for contract summonses and unlawful detainer summonses.)

* Now you wait for the defendant to respond--either five days for an unlawful detainer or 30 days for a contract summons.

* If your summons is not answered within the specified time, you are home free and can go through the default-judgment procedure. If your complaint is answered, you must go back to the court clerk and file a memorandum to set case for trial.

* The last step: Go to court.

HOW TO COLLECT

Assuming you prevail, it’s time to collect. Judgments are good for just 10 years, but they are renewable. A writ of execution is good until all monies due are paid; thanks to recent changes in policy, there is no need to refile every six months. For contracts, prepare a judgment statement (an accounting of damages) on pleading paper. It’s the paper with numbers down the side and is available at better stationery stores. Submit it to the court clerk, who will enter your judgment and issue a writ of execution for $3.50.

There are several options available to collect on your judgment:

* Garnish wages. Take the writ of execution to the county marshal, who will give you a form asking the defendant’s employer and address. For a $20 fee, the marshal will serve the defendant’s employer and wages will be garnished, up to 25% per payday until the judgment is satisfied.

* Attach the defendant’s bank account. Again, take the writ of execution to the marshal. You will be given a form asking where the defendant banks; account numbers are helpful but not essential. You need only to fill out the form; the marshal will take care of the rest for a $20 fee.

* File an abstract of judgment. It costs $3.50 to the county recorder. If the defendant has real estate, the property cannot be sold until your judgment has been satisfied. You may take this step in conjunction with either of the two actions outlined above.

* File a writ of possession. If you are successful in an unlawful detainer case, you can return to the court clerk and fill out the form for a writ of possession. The clerk will check your case number and your paper work; if everything is in order, the clerk will issue a writ of possession for a $3.50 fee. Take your writ to the county marshal. For a $35 fee, a notice will be posted on the door of your property, giving the tenants five days to move.

Source: Orange County marshal’s office and county municipal court