Imagine that you’ve just spent several thousand dollars to do targeted renovations on your apartment in San Francisco or your suburban Santa Monica home. Despite planning and coordinating, your contractor messed up the job. Perhaps he used the wrong materials, painted with the wrong color, or broke a water pipe along the way. How can you recover from your contractor? Fortunately, California has one of the most developed small claims court systems in the county.
California’s small claims court allows individuals to sue other individuals or businesses for up to $10,000. Small claims courts are designed for use without an attorney; this makes sense on disputes for smaller construction projects, such as kitchen remodeling or exterior painting, where the amount in controversy will likely be a few thousand dollars. Your lawsuit can be under different “theories of liability,” which is just a different way of saying that you can sue your contractor for multiple wrongs. Perhaps he breached your written contract. Perhaps he also damaged your carpet. Perhaps he negligently set a fire in your garage. Your lawsuit can enumerate all of the various ways that your contractor damaged you, so long as those damages add up to no more than $10,000.
California also offers Small Claims Advisors in each of its counties. These state employees cannot give you legal advice, or tell you what strategy to pursue. But they can be extremely helpful in reviewing your paperwork and documentation to ensure your best chance of success. California also has free, publicly accessible law libraries where librarians will be able to direct you to specific resources about lawsuits in small claims courts and lawsuits against contractors.
California has an unusual rule: As a plaintiff, you are required to try to settle your claim before you file a lawsuit. You’ll need to actually tell the court that you tried, but were unable, to settle before you will be permitted to proceed. The purpose of this rule, of course, is to encourage you to negotiate. This makes sense, since even the relatively simple procedures of the small claims court are still stressful and time-consuming. If you and your contractor can negotiate – determine a new construction schedule, a payment plan, etc. – you will both be better off than having to slog through the litigation process.
If merely talking to your contractor doesn’t work, try sending a demand letter. Such a letter tends to be taken more earnestly than an oral complaint, particularly if you note that you are “reserving all legal rights should a resolution not be worked out.” This can later be used as evidence that you did your best to avoid court, which busy small claims judges will appreciate. You gave your contractor a reasonable chance to fix the error, or refund your money, rather than burden the court system.
Statutes of limitations restrict the amount of time that a plaintiff has in which to file a lawsuit. Their purpose is to give certainty, so that folks know when they’re “off the hook” for legal liability.
As a homeowner, however, it’s important that you remember to file your claim within California’s limitations periods, or your contractor will be able to evade responsibility. The most common legal causes of action against a contractor are breach of contract (“He said he would repaint my garage white, and repainted it orange!”) and property damage (“She broke my heating system when she was supposed to be doing water repairs!”).
California has a four-year limit under Cal. Civ. Proc. § 337 or breach of contract and a three-year limit under Cal. Civ. Proc. § 338 for property damage. Do not make the mistake of waiting until it’s too late.
Once you’ve considered the statutes of limitations, made your attempts at negotiation, and considered your likelihood of success, you are ready to begin the next step: filing your lawsuit. California’s court system offers ahandy checklist for suing in small claims court. In brief, you’ll need to fill out a Plaintiff’s Claim Form. This is the central document of your small claims filing. You’ll need to provide names, addresses, and phone numbers for both yourself and the defendant contractor (or his business entity name).
You’ll then need to describe your claim and state the amount of money you believe you are owed. Don’t exaggerate beyond what you can prove based on your contract or other evidence; you will need to prove every dollar of those damages.
Next, you’ll need to serve the defendant contractor. Usually this is done through a process server, who will hand-deliver your lawsuit paperwork. You’ll then need to fill out a Proof of Service Form, which essentially proves to the court that the defendant is aware of the lawsuit.
Keep in mind that you’ll need to pay certain fees in connection with filing your small claims case. California charges $30 if the claim is $1,500 or less; $50 if the claim is for more than $1,500 but less than or equal to $5,000; and $75 if the claim is for more than $5,000. (2015 figures.) You may also incur other fees if you decide to subpoena witnesses, like subcontractors, for example.
Judges will not decide your case purely based on your Claim Form. Rather, they will listen to both you and your contractor at a trial, on a date set by the clerk when you file the lawsuit. This trial won’t be as formal as the ones you’ve seen on television. More likely, you and your contractor will stand next to one another, with the judge sitting on the bench, and you will be asked to orally explain your case. Your contractor will have an opportunity to do the same, and defend against your allegations.
Do not go to court unprepared. California offers a helpful guide on how to ready yourself, and what to expect. Try explaining your case in one to two minutes to friends, and practice until it makes sense.
It will also be important to bring various documents to court. You’ll want to bring copies of your Claim Form and Proof of Service Form.
You’ll also want to bring evidence. In home-improvement litigation with a contractor, documentary forms of proof are crucial to avoiding a he-said/she-said situation. Typically, the most important evidence will include: 1) Any written contracts between you and the contractor outlining the work he promised to perform, the timeline for performance, and the payment agreed upon; 2) Any proof of payments from you to the contractor, showing how much money you’ve already paid; 3) Any emails, letters, or other correspondence you’ve sent to the contractor outlining your dispute; 4) Photographs of your home before and after the construction work, especially photos that show shoddy or inadequate workmanship.
In some circumstances, you might also bring witnesses with you to court to describe elements of the story to the judge.
If the judge agrees with your version of the facts, and believes your contractor breached your agreement or damaged your property, you will receive a piece of paper called a judgment. This indicates that you are owed a certain amount of money – perhaps everything that you asked for, or perhaps a portion of it.
The next step will be collecting your judgment. A reputable contractors should pay up immediately, so as to maintain a good reputation with banks, lenders, and the community. However, some contractors will not be so forthcoming.
If 30 days have elapsed since your judgment, and you still have not been paid, California’s courts will provide you with resources to force the contractor to pay you. This is often accomplished by attaching assets in bank accounts or repossessing property, such as vehicles. The first step will be filling out the Writ of Execution Form, and getting it entered by the clerk.
Note that you will sometimes need to hire an outside collection agency, which will cost additional fees. If your claim is large, this effort might be worthwhile. If your claim is small, though, you will need to internally evaluate whether it’s worth the time, effort, and expense involved in chasing after the contractor.