THE TRIAL

What if I cannot appear at the scheduled date?
What can I do to prepare for the trial?
Can I get a statement from witnesses that cannot appear at trial?
How do I subpoena witnesses and documents?
Do I have to pay the witness I subpoena?
Who can serve a subpoena?
Can I subpoena private personal information like bank or employment records?
Can I have the subpoenaed information sent to me?
What should I do on the day of trial?
Who hears and decides my case?
Can I ask the other party questions?
Can I show a videotape in trial?
Do I have to file another lawsuit if I did not file or bring to trial a valid proof of service and the case was dropped?
What happens to the evidence I give to the court?
Is there a recording made of the trial?

What if I cannot appear at the scheduled date?

If you find out sufficiently ahead of time that you cannot come to court, then you should file for a postponement at least 10 days prior to trial. You need to file a Request for Continuance (Form SC-52) and pay $10 filing fee.

If you cannot file the request at least 10 days prior to trial, you should still contact the court at (916) 875-7701 and let the court know that you cannot appear on the scheduled date and time. The court will probably enter a judgment against you anyway, but your prior contact with the clerk could help when you try to set aside the default judgment for not appearing. You do that by submitting to the court a Notice of Motion to Vacate and Declaration (Form SC-23) along with a $15.40 filing fee.

 

What can I do to prepare for the trial?

Put together all the evidence you have to prove your case or defense. Any documents you have (such as contracts, receipts, letters, written estimates, photographs, etc.) should be put in a binder and tabbed, with an index of tabs as the cover page. You should then make two additional sets with photocopies of those documents - 1 for the judicial officer and 1 for the other party.

If you have witnesses you can bring to support your argument then do so. But be careful you do not bring too many witnesses who will say the same thing.

Can I get a statement from witnesses that cannot appear at trial?

You can use a blank Declaration (Form SC-6) in which a witness can give a statement in support of your argument. If the statement is from an expert witness who is giving testimony on technical issues, make sure the witness lays out his/her qualifications that make him/her an expert on those issues. At the end of every statement, be sure the witness adds the following language:

"I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct"

and sign it.

 

How do I subpoena witnesses and documents?

For those witnesses that will not come to court voluntarily, you can fill out and ask the court the issue a Small Claims Subpoena for Personal Appearnce and Production of Documents and Things at Trial or Hearing and Declaration (Form SC-107). Of course you must weigh carefully whether forcing someone to come to court to testify would benefit your case more than the possibility the witness may give unfavorable testimony.

You can also subpoena documents by filing the same Small Claims Subpoena (Form SC-107). You can have the subpoenaed party just provide the documents to the court without appearing or to bring the documents to court and testify.

Do I have to pay the witness I subpoena?

A witness who is subpoenaed to appear and give testimony in court can ask for fees up to $35 per day plus 20 cents per mile each way. Witness fees for government employees and law enforcement personnel is $150 per day.

Who can serve a subpoena?

Anyone 18 years of age or older, including a party to the lawsuit, can serve a subpoena.

Can I subpoena private personal information like bank or employment records?

It may be possible for you to subpoena certain private, sensitive information. However, anytime you are subpoenaing someone's consumer information, financial records, or employee files, you must give notice to the person whose records are being sought. Use a form called Notice to Consumer or Employee (Judicial Council Form 982(a)(15.5)) to give the required notice and also to prove to the party being subpoenaed that you have given due notice to the person whose records are being sought.

The person whose records are being subpoenaed can then file an objection to the release of his information to you and the court will have to ultimately decide whether the records are material and can be subpoenaed.

Can I have the subpoenaed information sent to me?

No. The law does not allow any pre-trial discovery in a small claims action. That means any subpoenaed information will be sent directly to the court in a sealed envelope to be opened only by a judicial officer, normally at the time of the trial.

What should I do on the day of trial?

You should come a bit earlier than scheduled and first check the court’s schedule (docket) posted next to the courtroom doors located on the third floor of the courthouse. If your case is listed, then wait in the courtroom where your case is to be heard. A few minutes before the scheduled time, you will be shown a short video where a brief overview of the trial procedure is explained. After the courtroom clerk takes a roll call, you will be asked to sign a consent form to have your case heard by a pro tem. If you decline, your case may be heard by a commissioner that day or may be postponed to a later date when one is available. Then you and the other party will be told to go out in the hallway to exchange evidence and to possibly settle the dispute. If you do not settle your case then you would proceed with the trial when your case is called before the judicial officer.

During the trial, the plaintiff will argue his case first then the defendant will put on her defense. Some judicial officers will take an active role in asking questions, others may not. Reasonable and calm behavior is highly recommended during the trial.

Who hears and decides my case?

Normally a pro tem judicial officer will hear your case. A pro tem judicial officer is an attorney with at least 5 years of experience who volunteers her time and legal knowledge. Otherwise, your case will be heard by a commissioner, who is a judicial officer appointed by the court to decide cases.

Before your case can go to trial, you and the other party will be asked to consent to a pro tem judicial officer hearing your case. If either of you decline, then a commissioner will hear your case. However, because of the great demand on the commissioners' time, your case may have to be postponed to another date.

Can I ask the other party questions?

No. All presentations and questions must be directed to the judicial officer in a polite and reasonable fashion.

Can I show a videotape in trial?

You may bring one in a VHS format, but you should let the courtroom clerk or the bailiff know that you wish to show a videotape. You should then ask for the judicial officer's permission before offering the videotape as evidence.

Do I have to file another lawsuit if I did not file or bring to trial a valid proof of service and the case was dropped?

If your  case was dropped because you failed to file before or bring to the trial a valid, completed proof of service for each defendant, then you must get another trial date; you do not have to re-file your lawsuit.  When you receive the lawsuit papers with the new trial date on them, have each defendant be served and be sure your process server fills out and signs the proof(s) of service. You should then make certain that the proof(s) is/are filed with the court clerk or bring it/them to the trial.

What happens to the evidence I give to the court?

Normally, any document in a case file that was not created by the court will be destroyed after about a week. It is very important that you get any original documents you gave to the judicial officer back at the end of the trial. If the judicial officer wants to keep the evidence until she decides the case at a later time, then make a clear arrangement how the judicial officer will return your documents back to you.

Is there a recording made of the trial?

An audio recording can be made of a trial upon a request made prior to trial. For further details on how you can obtain a transcript, please contact the court clerk's office at (916) 875-7701.