Small Claims Court

Small Claims Court

by John R. Schneider

I have had the opportunity to work with several contractors and home owners who have chosen little used methods of successfully resolving issues and complaints pertaining to workmanship and contract disputes. Two of the methods I will be discussing in this column will only work in certain situations, but the results are often fair and equitable. The first method is by using the availability of Small Claims Court, and the second is the use of a facilitator to resolve the complaints. Today I will discuss the option of using Small Claims Court to settle disputes with workmanship and terms of a contract.

Probably the best option that most consumers have when trying to resolve workmanship issues with contractors is Small Claims Court. The only drawback to Small Claims Court is the judgement is limited to $5,000.00. However, if your claim falls within that category, Small Claims Court can offer consumers a speedy resolution in most cases. The secret to being successful in a claim is the ability to prove a case and present the facts in a concise manner.

There are three matters that must be evaluated when considering the legalities of a contract or agreement between a licensed contractor and a consumer. They are, the contract, the contractor’s responsibilities, and the consumer’s responsibilities. Each of these items must be reviewed to determine what legal issues will be raised.

Let’s start with the contractor’s responsibilities. For a person to engage in work involving more than $500.00 of material and labor (in the State of California), he or she must have an appropriate license for the work they are performing. In order to hold a license, a contractor must abide by Contractor License Law. This basically means that the contractor has the required liability insurance, workmen compensation insurance, and license bond. The contractor must also offer a contract with the required notices to the owner, obtain permits for the work, and perform the work in a manner that reflects industry standards. These are legal obligations of the contractor.

Now let’s consider the contract. The contract is the most important piece of evidence for your case. It contains the contract amount, responsibilities of the contractor, specifications for the work, a start date, and terms of payment. It should also contain the contractor’s license number, the number for the State License Board, and the “Notice to Owner” statement about lien rights. If any of the required notices are not in the contract, the contractor may be in violation of license law. If the start date or specifications for the job are not written down, it may be a disadvantage to the consumer in trying to establish their claim.

The responsibilities of the consumer will revolve around the fact that they requested the contract, agreed to the contract price and terms. This means that as long as the contractor performs the work, the consumer shall pay the agreed upon price.

Knowing these facts, a person can begin to build their case. Were there any violations of license laws, any contract provisions not fulfilled, or deviations from workmanship standards? Whatever your complaint is, it must be documented either with written evidence or photographs. Often times a consumer will have all the written documentation regarding the contract and receipts, but they won’t have evidence of violation of workmanship standards.

This is when it is best to hire the services of an expert in the field, a contractor of a similar trade or industry professional to evaluate the situation and provide written documentation to substantiate your claim. An expert can evaluate the work, reference code sections and standards of acceptable levels of workmanship to prove that the work is not acceptable. Usually small claim cases can involve two to four hours of an expert’s time to provide this service.

Once your documentation is in order, you must file a claim with the court. Once the claim is filed with the Clerk of the Court, the other party must be served notice of the claim. This can be done via the mail, or through the services of a process server. If you suspect that the person being served will not be forthcoming in accepting the notice, you will want to use a process server. The costs of serving an individual is usually collectable as court costs.

When you go to Small Claims Court, you will want to bring three copies of all documentation. Before your case is heard, you will be asked to share all of your evidence with the other party, so they will know what information you will be presenting. You will then need to present a copy to the judge. This brings up an important point.

Sometimes if a judge is absent for some reason, the court will provide a “Pro-Tem” to preside over the hearings. A Pro-Tem is not a legal judge, but rather an attorney filling in for a judge. Often this person does not have the experience in handling small claim cases that a judge would. Always insist that a judge hear your case. If a judge is not available that day, the case can be rescheduled.

Following these guidelines will almost guarantee success in small claims court. Next week I will discuss how the use of a facilitator can help contractors and home owners resolve issues in a mutually agreeable manner.

John R. Schneider is a licensed general building contractor and a certified residential code specialist. He is president of All About Homes, a residential inspection company, and has been performing code and construction consultations since 1985. Readers may address their comments to John Schneider, 24326 Mission Blvd. Suite 7, Hayward, Ca 94544. Fax number: 510 537-8666. Please include your phone number. Schneider will answer questions of general interest in the paper. He reserves the right to edit the letter for brevity and clarity. Readers are encouraged to contact a competent contractor or code consultant for specific information regarding questions they may have about their homes.