Serving a Nonresident Defendant in A Califorina Small Claims Case
[This is a transcript is a result of automated audio transcription from the video posted below. For help from a California small claims attorney, The Small Claims Lawyer, visit www.TheSmallClaimsLawyer.com or call 888-632-6623. Grammatical and other errors are present in the transcript below. This transcript is for informational purposes only and may not be relied on as legal advice.]
Hey everyone this is attorney Brian Russ. The Small Claims lawyer, coming to you today with another video on small claims topics for the state of California, as you know I’m a California Attorney helping California clients with California cases. So if you’re looking for help with small claims in another state, I recommend you reach out, Google, Google, you know small claims lawyer for whatever your state is these videos are made just for California topics, And do not apply to other states now. The topic today is service a process on an out of state defendant or, or what also is called a non resident defendant. So what this is is when you’re in the small you want to make a small claims case in California. And, but the person you want to sue is in a different state. So maybe it’s an individual person and they live in that other state, or it’s a corporation that is based in that other state but they did something wrong in California. Now before I get in any further. I’ll give you a few disclaimers first disclaimer is that this video is not legal advice, it is informational and educational only. I’m not making this purpose video for any particular person or any particular situation so again this is not legal advice. If you need legal advice, I encourage you to retain an attorney to help you with your situation do not rely solely on free YouTube videos, or blogs, because they’re not facts specific, they’re not applying the case, your facts to the law, so help get an attorney to help you through situation again by viewing of your video by you viewing this video, no attorney client relationship forms. I don’t know you. You don’t know me besides this video no attorney client relationship forms. And finally, to the extent this video can be considered an advertisement should be considered an advertisement I’m an attorney, and I sell my services, and if you give my office a call, the numbers above 888-632-6623 Or you visit my website The Small Claims lawyer, calm. You know I might be able to help you with your case but once you reach out, schedule a call with our team. We’ll do an evaluation, a case evaluation and take consultation, and we’ll see what happens. Now under the topic is how do you make out of service, out of state, Service, Small Claims in California. Now again, one of the things you have to remember is that, you know, really for a case to be valid in small claims in California, and almost for any claim really in California, is that the harm must have occurred in California, again there’s exceptions to this always but but but as a general rule of thumb, you should have happen in California so if you’re on vacation in Wisconsin, and you get into a car accident in Wisconsin. You know, it’s, it’s unlikely that you would be allowed to bring a claim in California small claims court, even though you may be a California resident. Now again, there’s lots of new civil procedure cases, examining the nuance of these cases, but I’m gonna say as a general rule of thumb 99.9% of time in California Small Claims beginning California small claims, you know, the incident had to arise in California. In order to take advantage of the small claims process in California. So, first of all, so there’s, you know small claims, you know, again, the thing had to happen in California so assuming it happened in California. You know the Code of Civil Procedure section 116 point three four subsection E says that service must be made within California so this is from the Small Claims Act. It says in the Small Claims Act service must be made within California. Except, then it gives you two exceptions. So that means, unless it falls in one of the two exceptions, you know, everything happened in California, you have to serve the person in California person or entity in California, with two exceptions, the first exception is if the owner, if the claim is against the owner of real property, and that owner of the Real Property resides within another state, then you may serve that party in the other state as long as the claim pertains to the real property here in California. So say you know you’re let onto a property maybe maybe an Airbnb or something or BRB oh you’re renting a property and you fall in a hole, and you want to sue them for, you know, personal injury, you know negligence all this stuff. And but the owner lives in Oregon, and they’re not going to California time soon. You know if you want to make a small claim against them, you can because that owner of real property they reside in another state. And the claim is related to that real property. The real property in California, so the owner of real property in California resides in another state and the claim relates back to that real property. So, so that’s that’s one of the exceptions the other exception is that if there’s a non resident owner operator of a motor vehicle, You know you’re bringing a claim against them for some of their conduct with that motor vehicle. So you know think about this like you have tourists right get a lot tourists here in California. Maybe one of them’s rented a car, they’re driving down five whatever you can do a fender bender, they say sorry I got to go back home to Texas to New York wherever you can still sue them in small claims now there’s, you have to go look at the code on this one, they’re very specific steps that you need to follow to suit a non resident, or I should say to properly serve a non resident owner operator of a motor vehicle small claims in California, but those are really the two exceptions. You know, if you have a case where you have you know a company, you contracted with them to come out and do work in California. And they come here and they mess something up, and then you want to sue them it’s gonna be really difficult because the code doesn’t allow, you know, out of state Service of Process on a non resident Corporation, The only kind of way you can get to there is if that non resident Corporation has a registered agent here in the state of California where they registered with the, with the Secretary of State to do business here in the state of California, and they have a registered agent but if it’s an out of state corporation, they don’t have registered agent, you know, you probably have no means of, you know, pursuing a suit against them because you can’t serve them, you know, serving them a copy of the summons, serving, copy the suit is you know, it’s like, step two of the process step one is filing your claim. Step two is actually serving them in the code doesn’t, you know The Small Claims Act doesn’t allow you to serve an out of state, or non resident Corporation,
really unless they have a registered agent here in California because you have to serve them within the state. So it can be a non starter. Now I will say, I guess my last point I want to back up. I will say I know some people will still attempt to sue them in the state, with the hopes that they will come to the state and they will essentially make make an argument in small claims and thereby waive defects and service a process where they don’t bring it up as a defense. That’s the way to go about it sometimes you still file a suit to encourage the other party to settle, you know, obviously you can’t sue a suit, you can’t sue a party with the intent to harass or delay or abuse. The justice system, but in some cases, I’m not saying some cases okay it’s not okay. You can’t do that. But in some cases, you know, I’ve seen people, they still file the suit, in the hopes that the the party will waive service a processor helps me to come to a resolution sooner. You can always attempt to remove to a higher General Court or dismiss. Let’s say you accidentally sued a party Estate, LLC Corporation, and you want to, you know, then dismiss your sheet without prejudice and take it higher general court that’s always possible to, you know, sometimes you want to file a suit just to get, you know, the statute and you get it within the statute of limitations then you remove removals another topic, and how it does it does done in small places, you know, outside the scope of this video. So anyways, you know, obviously there is an exception work around this, but I really wanted to get to, was that you know if, if you have a non resident individual so again you’re somebody who lives in Oregon, and we lived in Idaho, and you want to sue them for something they didn’t California and they’re small, it’s under small claims in California. And there’s a problem like where you know you can’t sue serve them in that other state what you can do is you can wait for them to come to California so say it’s your auntie, you know, she lives in Georgia, or wherever and you know she’s coming out to visit. And you want to sue her. Just wait till her plane touches down and get her personally served here in state of California. She served within the state of California, then it’s an it’s proper, you can serve a non resident, individual in the state of California. And that’s property just can’t serve them, you know, outside of the state of California to be valid in a small claims. So that’s, you know, a little exception there, it’s a little bit more difficult to coordinate because you don’t necessarily know people’s travel schedules are and so on. And it doesn’t apply to a non resident Corporation, Because a non resident corporation doesn’t necessarily travel right maybe they’re their corporate officers travel, but they’re not the registered agent to accept Service of Process on behalf of the corporation, so it’s a little more difficult there again, obviously an exception if there’s a sole proprietorship, then you make the argument the sole prop, you know the person is the sole property you can serve them but you know those are topics that we can get into another time. Again, if you feel a crazy case you want to discuss how to do this, give my office a call 888-632-6623, you can visit me online at thesmallclaimslawyer.com. I want you to schedule a free conversation once you schedule a free call. You can talk to somebody, our team. We’ll see if we can help you out. Alright have a good one.