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As the Defendant - You've Been Sued!

This page tells you about:

  1. Introduction
  2. Is this claim legitimate?
  3. Was the claim filed in the right court?
  4. Did they name the right person in the lawsuit?
  5. Did they serve the claim in time?
  6. Did the plaintiff ask me for money before filing the claim?
  7. What if I owe some of the money?
  8. Was I served properly? Do I have to go to court?
  9. Other options: Can I settle in mediation or arbitration?
  10. What if the plaintiff owes me money? Should I file a counter claim?
  11. How can I file a claim against the plaintiff?
  12. How do I ask for a transfer to a higher court?
  13. More help for before, during and after the hearing...
  1. Introduction

    Someone named you as a defendant in a small claims action. You got an order to appear at a small claims hearing. This means you're the defendant and that someone (the plaintiff) is suing you. You probably know why you have been sued. If you don't, get in touch with the plaintiff right away for an explanation. Their name and address is on the Plaintiff's Claim and Order to Defendant (SC - 100 ) form that you got.

  2. Is this claim legitimate?

    Never ignore an order to go to court. Go, even if you think the case is wrong, unfair, or has no basis. If you don't go to court when you’re supposed to:

    • The court can decide the case without you.
    • You can lose the suit by default.
    • The court can make a default judgment against you, without you being there and without the judge ever hearing your side of the story.
    • The person who wins, called the judgment creditor can legally take your money or property and maybe part of the money you make to pay the judgment.
    • The judgment can show up on your credit record.
    • If you have a license to do your job, the judgment can go on the record of the agency that gives you your license.
  3. Was the claim filed in the right court?

    If you think the plaintiff filed in the wrong court, or venue, you can:
     

    Go to the hearing and not challenge the location:

    If you don’t mind having the hearing in the county the plaintiff chose (because, for example, you live close by or in a district only 5 miles from the court), you can go to the hearing and give up (waive) your right to challenge the location.

    Challenge the location at the hearing:

    You can challenge the location at the hearing. If the judge decides that plaintiff was right to choose that location, then you’ll have the hearing. If the judge decides that the plaintiff was wrong to choose that location, he/she will dismiss the case without prejudice. The plaintiff can file the case again.

    Writing to the court to challenge the location:

    This is probably the easiest thing to do, especially if you live far away from the court. Just write a letter to the court saying why the plaintiff didn’t choose the right location. If the judge doesn’t agree with you and you don’t go to the hearing, the judge has to postpone the hearing for at least 15 days. If you challenge the location, the judge can't make a decision on the claim without you there. If the judge thinks the location is wrong, the case has to be dismissed without prejudice.

    Even if you don't challenge the location:

    The judge has to decide that the plaintiff filed the case in the right location. Also, even if the plaintiff chose the right court, the judge might, rarely, move the case to another court that is better for the parties and witnesses. For example, if you have a lot of witnesses who have to travel to the court from far away, the judge can move the case to a court near them. The courts give more importance to individuals than they do corporations, partnerships, or public agencies.

  4. Did they name the right person in the lawsuit?

    If you think you’re not the right person to be named in the suit you can write to the court to explain. For example, if the defendant is a corporation and you are not an officer, you’re just an employee. You may still have to go to the hearing and explain this.

  5. Did they serve the claim in time?

    By law, you have to be served at least 15 days before the hearing if you live in the county or 20 days if you live outside the county. If you weren’t served in time, and you need more time to get ready, write the clerk and ask to postpone the case.
     
  6. Did the plaintiff ask me for the money before filing the claim?

    If the 1st time you heard about the problem was when you were served, get in touch with the plaintiff and try to reach a settlement. You have to go to the hearing and tell the judge that the plaintiff never asked you for the money. Ask the judge to move the hearing to another day to give you enough time to try to solve the problem.

  7. What if I owe some of the money?

    If the plaintiff's telling the truth, you can save money, time, and hassle if you solve the problem before the hearing. If you go to court and lose, you'll probably have to pay the plaintiff's court costs, and maybe interest, plus what you already owe. The judgment can go on your credit record, even after you've paid it. Try to settle with the plaintiff before you let the court decide the case.

    If you can’t solve the problem with the other party, go to the hearing, unless you:

    • Ask for a new court date,
    • Ask to transfer to another court, or
    • The court takes some other action.

      It's always a good idea to talk or write to the plaintiff before the hearing. It might just be a misunderstanding. You might be able to clear it up. If you think you owe the plaintiff something but you can’t pay it now, offer to pay the amount you owe in weekly or monthly payments.

      Take the following steps:

      • Ask the plaintiff to “dismiss the case without prejudice”. This means the plaintiff can file the claim again if you don't do what you promised

      • Make a specific agreement to pay what you owe. It will say what you agree to about:

        • How much you agree to pay, including interest and court costs.
        • How much each payment will be.
        • How many payments you’ll make.
        • The date, like "the first of each month", that you’ll make the payments on.
        • The exact date when the payments will start.
        • Set the length of the "grace period" for paying and say what happens if you don’t pay. For example: “If any payment isn’t made within 10 days after the due date, the part of the debt that hasn’t been paid will be due immediately”.
      • If you can convince the plaintiff to dismiss the case without prejudice, and you pay what you agree to pay, the claim won’t go on your credit report as a judgment.

      Don’t forget that by agreeing to pay in installments you are probably giving up your right to have the court decide if you actually owe anything. If you don't pay, the plaintiff can just take the agreement to court and ask the court to make a judgment that says you owe what the agreement says.

  8. Have I been served properly? Do I have to go to court?

    You have to get at least 15 days' notice of the hearing. If you live outside the county where the court is, you have to get 20 days notice.

    If you didn't get enough notice, legally you don’t have to go to the hearing. But, if you got some notice and don't plan to go, write the court to explain why. If you didn’t get notice in time, the court will reschedule your hearing. You may still want to go, though. You shouldn't refuse to go just because you were served late. Only postpone if the late notice has made it much harder to get ready for the hearing or to go to it.

    For example: they may have dropped the claim at your doorstep, instead of giving it to you personally, or they may have given it to your neighbor, who gave it to you. In both cases, service wasn’t proper, but you knew about the claim and had enough time to prepare.

    By going to the hearing, even if service of process was late or improper, you can give your defense and maybe solve the problem. If you don't go, the plaintiff may have to pay more to serve you, and then if you lose, you may have to pay these costs. If you don't go, the judge can make a default judgment against you. Then, you’d have to prepare and file a request to challenge or cancel the judgment.

  9. Other options: can I settle in mediation or arbitration?

    Even if:
    • You may have a defense to all or part of the claim, and
    • You think you owe nothing, or
    • You think you owe less than what the plaintiff's asking for and
    • You told the plaintiff your position

    The plaintiff can still refuse to ask for less or withdraw the claim.

    Try calling a local mediation center to try to convince the plaintiff to choose a neutral person to help you solve the problem without going to court. Most neighborhood problem resolution centers have mediation services.

    If you don’t have enough time to get help from a neutral person or a problem solving center before your hearing, you can go to the hearing and ask the judge to put off the hearing so you can try to solve the problem in mediation, arbitration, or some other informal way. The judge can postpone the hearing if either party asks to try to settle.

  10. What if the plaintiff owes me money? Should I file a counter claim?

    If you think the plaintiff caused you injury or owes you money for any reason, you can file a claim in the same court action. If your case has to do with the same subject as the plaintiff's case, you can solve it at the same hearing. File a Defendant’s Claim and Order to Plaintiff (SC - 120 ).

    Your claim against the plaintiff doesn’t have to be related to the plaintiff's claim. The small claims court can solve both problems at the same time.

  11. How can I file a claim against the plaintiff?

    You must follow the same basic rules and procedures and the same laws like, statutes of limitations. In general, the plaintiff has to get the Defendant's Claim and Order to Plaintiff at least 5 days before the hearing.

    But, if you got the Plaintiff's Claim and Order to Defendant less than 10 days before the hearing, you can serve the Defendant's Claim and Order to Plaintiff as late as 1 day before the hearing.

    Always serve the papers as soon as possible. Follow the same rules for the defendant’s claim as for the plaintiff’s claim.

  12. How do I ask for a transfer to a higher court?

    • If you are filing as an individual, or as an individual who owns a business (i.e. sole proprietor), and your case is worth more than $10,000 (or $2,500 if you filed more than 2 small claims actions for more than $2,500 in California this year), consider asking for a transfer to the court level above small claims court.

    • Or, if you are filing as a corporation, partnership, or any other type of business other than a sole proprietorship, and your case is worth more than $5,000 (or $2,500 if you filed more than 2 small claims actions for more than $2,500 in California this year), consider asking for a transfer to the court level above small claims court.

    You may be able to transfer your case or both cases to superior court. If your claim is worth more than $10,000 (for an individual) or $5,000 (for a business), talk to a lawyer before you file the Defendant's Claim and Order to Plaintiff .

  13. More help for before, during and after the hearing...

    See the "Checklist for the Defendant page" for more help.

    Also see the Small Claims Advisor and Small Claims FAQs pages, as well as the pages for both the defendant and plaintiff: About Small Claims Court, Alternatives to Lawsuits, Prepare for your Day in Court, Judgment - Judicial Decision and Property/Money Collection.
© 2014 Superior Court of California, County of Santa Clara