You were sued by someone in small claims court but, actually, they owe you money. Now what? You can file a lawsuit against the person who initially sued you. This is called a countersuit.
In this article, learn how to file a countersuit in California small claims using formSC-120 "Defendant's Claim and Order to Go to Small Claims Court."
Things to consider as you prepare for your countersuit.
How to prepare form SC-120 "Defendant's Claim and Order to Go to Small Claims Court."
How to file the small claims countersuit.
How to serve the small claims countersuit.
How to prepare for the hearing.
Fun fact, lawyers are not allowed at the initial small claims hearing! This is to even the playing field so that each party has an equal chance of obtaining justice.
Before Filing Your Case
Before filing your small claims countersuit against the person who sued you, make sure to review the following sections.
Review the Lawsuit Your Received
You likely were just served with a small claims lawsuit as that is how you found out you were sued in small claims. The document "Plaintiff's Claim and Order to Go to Small Claims Court" (Form SC-100) is the small claims lawsuit filed against you. At a minimum, if you were sued in California small claims, you should have received 5 pages. Make you review each page you received. On page 2 of that document, under #3, you can see how much you are being sued for ("the plaintiff claims the defendant owes $____). You can also see why you are being sued in small claims and how they calculated the amount you are being sued for.
Costs of Filing a Countersuit
How much will it cost to sue the person who sued you in California small claims?
Filing fees can range from $30- $75.
Serving Costs can range from $0-$75 per person or business you sue.
If you qualify for a waiver of your court fees, then you pay $0 for court fees and serving costs.
If you win, you can request that the losing party pay for your court fees and serving costs.
Before you can file formSC-120 in California small claims, the court requires that you request your money or your property back from the person you intend to sue. You will have to confirm you have done this when you file your countersuit.
California Small Claims Court Limits
This is also known as, how much can you sue someone for in California small claims. In California small claims, you can sue for the following maximum amounts:
If you are owed for more than the amount you can sue for, you can still sue for the maximum amount allowed but you waive any additional amount over the limit.
Example: You are an individual and you paid $11,000 for someone to paint your home. They didn't paint your home. You can sue in small claims court for $10,000 and waive $1,000.
Changing the Hearing Date
If the hearing date is less than 30 days away, consider asking the court to first change your hearing date so you can have more time to prepare and later serve the countersuit. You don't want to be rushing as you will also have to prepare for the hearing date.
How to prepare form SC-120
California courts use a separate form than theSC-100 for filing a lawsuit against someone who has sued you ,Form SC-120 "Defendant's Claim and Order to Go to Small Claims Court."
You will need the following information to complete form SC-120:
The name and address of the person or business who sued you (called the "plaintiff"). Found on page 2 of form SC-100.
How much you are suing for and how you calculated how much money you are suing for.
Why does the person you are suing owe you money?
The date when the event that caused the person you are suing to owe you money happened.
Page 1 of formSC-120:
Page 2 of form SC-120:
"Defendant (list names)": Enter your name or business name.
"Case Number": Enter your case number.
"#1 The Plaintiff (the person, business, or public entity that sued first) is:" The name and address of the person or business who sued you (called the "plaintiff"). Found on page 2 of form SC-100.
"#2 The Defendant (the person, business, or public entity suing now) is:" This is your information. You are the defendant. Make sure you enter your legal name or if you are a business, your legal entity name. If you are a business, and you are doing business using a trade name or a fictitious business name, make sure to check the box under #2 and also complete formSC-103- Fictitious Business Name.
"#3 The Defendant claims the Plaintiff owes $_______" This is your time to shine. How much money are you owed? Remember, if you are an individual you can sue for a maximum of $10,000. The judge will determine at the hearing how much you can actually win.
"#3(a) Why does the plaintiff owe the Defendant money" this is the same as saying: why does the person who sued you actually owe you money? Make sure to write enough so that the judge can understand quickly why you are suing. Try to be as succinct as possible.
"3(b) When did this happen" Enter the date or time period when the event that caused the person you are suing to owe you money happened. Keep in mind that this date affects the statute of limitations, known as the deadline for when you can sue.
"3(c) How did you calculate the money owed to you?" For example, you have 3 receipts that show how much you had to spend to fix what the other person did wrong and you added those receipts to calculate the amount you are suing for. Small claims judges like you to be as concrete as possible. You will want to make sure you can justify each amount.
Page 3 of form SC-120:
"#4 You may ask the Plaintiff (in person, in writing, or by phone) to pay you before you sue." In order words, have you asked the person you are suing to pay you back before suing them. Small claims judges want to make sure that you have tried to get your money back before suing in small claims. In this article, we cover how to request payment.
"#5 Is your claims about an attorney-client fee dispute?" If you are suing an attorney/lawyer over their fees, you would select yes.
"#6 Are you suing a public entity" means are you suing the government.
"#7 Have you filed more than 12 other small claims within the last 12 months in California?" If you have filed more than 12 cases, the filing fee is $100.
Don't forget to review your answers in detail. Once you are done, make sure to sign and date the form.
If you intend to request a waiver of your court fees, make sure to also prepare FW-001 "Request to Waive Court Fees" and FW-003 "Order on Court Fee Waiver."
How to file the small claims countersuit
Each court has a different procedure (in person, by mail, electronically, or by fax).Check with the court you are filing your lawsuit in see what options are available. Make sure to also ask the court whether they take credit card payments or if you can only pay by check and who to make the check out to.
If you are filing in person, bring the original and an additional copy of yourSC-120. If you do not bring enough copies, most courts charge you to make additional copies.
How to Serve the Small Claims Countersuit
Serving is the act of notifying the person that you sued that they have been sued. It doesn't mean sending a text message or email, as there are rules around how you can complete this notification process.
The basic rule is that you, the person suing, cannot be the one to serve the lawsuit.
In general, there are 4 ways to serve a small claims countersuit in California:
Process Server. A process server is a person licensed to serve lawsuits do the serving. Their fees range depending on the county you are serving in.
Sheriff. You have to confirm with the sheriff in the county you are suing in whether they can serve your small claims countersuit. If you qualify for a waiver of your court fees, the sheriff will serve for free.
Friend/Family member. You have friend or family member that can serve the lawsuit as long as they are over 18 years old. Ideally, they have nothing to win if you win the lawsuit.
Court Clerk. Some counties offer the option of the court clerk serving using certified mail. This is not recommended as it doesn't work most of the time as the person being sued has to sign for the lawsuit and their signature has to be legible.
Once the lawsuit is served, the Proof of Service (form SC-104) has to be filed with the court.
How to Prepare for the Small Claims Hearing
The person who sued you in small claims court is responsible for proving to the judge that they should win. They will bring evidence to help them prove their small claims case. In order to prepare for your small claims hearing, it is good to begin anticipating how the person who sued you is going to prove to the judge that they should win.
Here are some tips:
Write down a list of items you think the person who sued you will tell the judge. For each item, write down your response and evidence you can show the judge. Here are some examples:
Security Deposits. If you think the person who sued you is going to tell the judge that they left their room extremely clean, your response may be that they didn't leave their room clean and that you had to pay $500 for professional cleaners. Evidence: Pictures of the room after they moved out and the receipt for professional cleaning fees.
Car Accident. If you think the person who sued you is going to tell the judge that you ran a red light, your response may be that the light was green. Evidence: A witness that was with you in the car.
Contracts. If you think the person who sued you is going to tell the judge that you didn't do what was agreed to based on the contract, your response may be that you did do exactly what the contract said. Evidence: A copy of the contract and proof that you did do what the contract said.
Research defenses based on the law. Did you do what was required of you under the law? Here are some examples:
Security Deposits. Did you follow the rules surrounding the return of the tenant's security deposit?
Auto Repair. Did you follow the rules around providing an estimate before conducting the repairs?
A quick google search should pull up what you are looking for. When in doubt, consult a lawyer!
Talk to a lawyer. Don't know how to defend your lawsuit or there is too much money at stake?
If you stand to lose $10,000 it may be a good time to invest in talking to a lawyer. While lawyers are not allowed to represent you or the person who sued you at the initial small claims hearing, you can consult a lawyer before the hearing.
How much does a lawyer cost? It varies but you can begin to reduce your cost by preparing all your evidence beforehand so that they can quickly review your case.
We can help you prepare! Learn more.
Chief Legal Architect & Co-Founder @ People Clerk. Camila is an attorney, consumer advocate, and certified mediator. Her passion is breaking down complicated legal processes so that people without an attorney can get justice.