I have Been Sued
What to Do When You Have Been Sued
Someone named you as a "defendant" in a Small Claims action. If you do not understand why you are being sued, 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. You may be able to resolve the matter outside of court with the plaintiff.
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 do not go to court when you are supposed to:
- The court can decide the case without you.
- 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 to pay the judgment.
- If you have a license to do your job, the judgment can go on the record of the agency that gives you your license.
Was the Claim Filed in the Right Court?
A case must be filed in the correct courthouse. This is called venue. The appropriate venue is usually one of the following:
- Where the defendant lives or defendant’s business is located.
- Where the plaintiff’s property was damaged.
- Where the plaintiff was injured.
- Where a contract (written or spoken) was made, signed, performed, or broken by the defendant or where the defendant lived or did business when the defendant made the contract.
- Where the buyer or lessee signed the contract, lives now, or lived when the contract was made, if this claims is about an offer or contract for personal, family, or household goods, services, or loans.
- Where the buyer signed the contract, lives now, or lived when the contract was made, if the claim is about a retail installment contract (like a credit card).
- Where the buyer signed the contract, lives now, or lived when the contract was made, or where the vehicle is permanently garaged, if the claim is about a vehicle sale.
You can look up the venue for each court on the Court Designation List . For example, if the claim says that the plaintiff selected the courthouse to file the claim at because you live within that court’s venue, but this is incorrect, you have several options.
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 do not mind having the hearing in the court the plaintiff chose (because, for example, you live close by 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 will have the hearing. If the judge decides that the plaintiff was wrong to choose that location, he/she may dismiss the case without prejudice. The plaintiff can file the case again in the correct court.
Write 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 where the trial is scheduled saying why the plaintiff did not choose the right location. If the judge does not agree with you and you do not go to the trial, the judge has to postpone the hearing for at least 15 days and notify you of the new trial date. If the judge thinks the location is wrong, the case may be dismissed without prejudice. The plaintiff can file the case again in the correct court.
Did They Name the Right Person in the Lawsuit?
If you think you are not the right person to be named in the suit it is important that you appear at the trial to defend yourself. For example, if the defendant is a corporation and you are just an employee, you will want to explain this to the judge.
Can I Request that the Trial Date be Changed?
IF YOU WERE NOT SERVED IN TIME:
By law, you have to be served at least 15 days before the trial date if you live in the county or 20 days if you live outside the country. If service was performed by giving a copy of the claim to someone else to give to you (called substitute service), add an additional 10 days to the time in which the claim must be served by. If you were not served in time, and you need more time to get ready for trial, you can ask the judge for a postponement. There is no charge to make this request. To request a postponement:
- Fill out a Request To Postpone Trial (SC-150) or write a letter.
- Have the other parties "served" with a copy of the request either by mail or in person.
- Have the server fill out a:
- File the Request to Postpone Trial and Proof of Service with the court where the trial is scheduled at least 10 days prior to the trial date if possible. If you file the documents less than 10 days prior to the trial be sure to complete section 5 on the form and attach any supporting evidence you may have that caused the delay in filing.
If you do not receive a written response, contact the court where your case was filed for the status of your request.
IF YOU WERE TIMELY SERVED:
If you were timely served, but you cannot appear on the trial date, you can also ask the judge to change the trial date. To request a postponement:
- Fill out a Request To Postpone Trial (SC-150) , or write a letter
- Have the other parties "served" with a copy of the Request or letter either by mail or in person
- Have the server fill out a:
- File the Request to Postpone Trial and Proof of Service with the court where the trial is scheduled no later than 10 days prior to the trial. If you file the documents less than 10 days prior to the trial be sure to complete section 5 on the form and attach any supporting evidence you may have that caused the delay in filing.
- Pay a fee at the time you file the documents. If you cannot afford to pay the fee you may fill out a Request to Waiver Court Fees.
If you do not receive a written response, contact the court where your case was filed for the status of your Request.
Does a Demand for the Money Need to Be Made?
If the first time you heard about the problem was when you were served, get in touch with the plaintiff and try to reach a settlement. If you need more time to do this, you can request a postponement of the trial as noted above. However, there is a fee for this type of postponement. See above section for requesting that the trial date be postponed.
You can also 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.
What If I Owe Some of the Money?
If the plaintiff is telling the truth, you can save money, time, and hassle if you solve the problem before the trial. Try to settle with the plaintiff before you let the court decide the case. It might also just be a misunderstanding that you can clear up before the trial.
If you think you owe the plaintiff something but you cannot pay it now, be sure to tell the Small Claims mediator or judge at the trial. If you and the plaintiff can agree to a payment plan, you will be asked to fill out a Stipulation for Time Payments After Judgment (L-1094) .
Other Options: Can I Settle in Mediation?
- 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 is asking for and you told the plaintiff your position
...the plaintiff can still refuse to ask for less or withdraw the claim. You may ask the plaintiff if they are willing to mediate the claim. The court has mediators who will work with you and the plaintiff to settle the matter without having a trial. If the plaintiff refuses, mediators will be available in the courtroom on your trial date.
What If the Plaintiff Owes Me Money?
Figure out if you have a claim against the plaintiff and how much they owe you. You may want to file a countersuit against the plaintiff. To do so, you will need to fill out and file the Defendant’s Claim and Order to Plaintiff (SC-120) at the same courthouse where the plaintiff filed the initial case. You may counter sue up to $10,000 if you are countersuing as an individual or sole proprietor. If you are countersuing as a corporation, partnership, or any other kind of business, you are limited to $5,000. If you are doing business under a fictitious business name, fill out a Fictitious Business Name (SC-103) and file it along with your Defendant’s Claim.
If the claim is about an attorney fee dispute and you have had arbitration, fill out an Attorney Fee Dispute (SC-101) and file it along with your Defendant’s Claim.
You can fill out and file the Defendant’s Claim:
- In person at the court
- eFile your claim
After you file your countersuit, you will need to serve the Defendant’s Claim on each person or business you are countersuing. It can be served by:
- The Orange County Sheriff, or
- A process server (check the yellow pages or web), or
- A person of your own choosing who is not named in the Small Claims action.
The fee to serve the document depends on who you have serve the documents.
The plaintiff must be served at least 5 days prior to the trial if you were served at least 10 days prior to the trial. If you were served less than 10 days prior to the trial, then the plaintiff only needs to be served 1 day prior to the trial.
The server must file a Proof of Service (SC-104) with the court prior to the trial so that the judge knows that the plaintiff received notice of your Defendant’s claim.
The following information will help you serve your countersuit properly:
- What Is "Proof of Service"?(SC-104B)
- How to Serve a Business or Public Entity (SC-104C)
- California Courts website
What If My Claim Is for More Than I Can Sue for in Small Claims Court?
If you have a claim against the plaintiff for more than you can sue for in Small Claims court (see above) you can:
- Waive the difference and file a countersuit (Defendant’s Claim) in Small Claims court (see above)
- File a formal complaint in Civil court
If you decide to file a formal civil complaint you may wish to consult an attorney. The laws and procedures are more complicated than Small Claims court. Act quickly. If your civil case is filed prior to the Small Claims trial, you or your attorney can ask that the Small Claims case be transferred and heard with the civil case.
What If I Settle My Claim before the Trial Date?
If you settle your case before the trial date and want to "dismiss" (cancel) the case, the plaintiff should fill out and sign a Request For Dismissal (L-1203) . If you have filed a Defendant’s Claim which has also been settled, you should also sign the form.
THERE ARE TWO WAYS TO DISMISS A CASE:
- With prejudice (cannot sue again for the same reason). Typically a case is dismissed with prejudice when the parties have completely settled the case or it has been paid in full and there are no outstanding issues.
- Without prejudice (can sue again for the same reason). Sometimes the parties dismiss a case without prejudice because the case has settled but the terms of the settlement may not be completed for a period of time. If one of the parties breaches the terms of the settlement, another Small Claims could be filed if the original case was dismissed without prejudice.
File the form with the court before the trial.
How to Get More Information
- Small Claims Advisor
- Superior Court of Orange County Self-Help and Small Claims Division staff
- California Courts website on bankruptcy
- Bankruptcy Basics-Administrative Office of the U.S. Courts