Expert Witness Report
Expert Witness Report Article
Filing a Small ClaimsCourt Construction ClaimThis pamphlet supplements the Department ofConsumer Affairs publication, Using the SmallClaims Court, and is intended to help you file a suitagainst a contractor in Small Claims Court whenrestitution is your intent.Small Claims Court is a special court in whichdisputes are resolved inexpensively and quickly forclaims that are limited to $5,000 or less. The rulesare simple, the proceedings are informal, andattorneys are not allowed. Details about fees,timelines, and procedures can be found in theDepartment of Consumer Affairs’ publication,Using the Small Claims Court, which you maydownload at www.dca.ca.gov.The Contractors State License Board (CSLB)investigates complaints against contractors;however, CSLB’s mandate is to address violationsof Contractor License Law. Proving theseviolations results in the CSLB taking disciplinaryaction against the license. Administrativedisciplinary actions can range from issuing acitation to suspending or revoking the license.On the other hand, Small Claims Court is the bestoption for consumers whose primary interest isrestitution and whose claim is for damages of$5,000 or less.How to name the defendantsIn order for the Small Claims Court judgment to beenforced, you must name the defendants (thosewho are being sued) correctly. You should nameevery person you believe is liable—individuals,businesses, and corporations—and let the courtdecide whether those you name are properdefendants and are legally responsible.When suing a contractor, you should take thefollowing steps:1. Check on the CSLB Web site under “LicenseStatus Check” for the contractor’s name and thelicense number. Note the business name, a DBA(doing business as), if there is one, and anypersonnel listed for each license.2. Identify the type of contractor’s license yourcontractor holds. They can be:• Sole Owner—one person owns and is named ona license.• Partnership—more than one person owns and isnamed on a license.• Corporation—the contracting business has beenincorporated by the Secretary of State’s officeand there are officers named on the license.• Joint Venture—two licensed entities (sole owner,partnership, or corporation) get together to workon projects and those named on each entity arealso named on the joint venture.3. Based on the type of license the defendant holds,here are the persons you should name:• Sole Owner—name the owner and a qualifier, ifthere is one, as defendants. A qualifier is anindividual who is responsible for the licensedcontractor’s construction operations.• Partnership—name all of the partners and aqualifier, if there is one.• Corporation—name all of the corporate officersand a qualifier, if there is one.• Joint Venture—name all of the individuals andqualifiers listed for both companies in the jointventure.How to name individuals and businessesYou can name individuals, and you can namebusinesses as defendants, but it is best to name themseparately. For example, if you are suing a contractorwho holds a sole owner license, write “Joe Contractor,individually, and doing business as Contractor’sConstruction.” For a partnership, you may write “JoeContractor and Jane Contractor, individually, anddoing business as Contractor’s Construction.”Others you can name as defendantsIn addition to the owners, partners, officers, andqualifiers on a license, you can name other individualswho were associated with the project when yourdamage occurred. For example, you can name thosewho are no longer part of the business, homeimprovement salespersons, or construction sitesupervisors.Naming the surety company as a defendantYou can also name the surety company thatcarries the contractor’s license bond. Somesurety companies won’t pay the judgmentunless they are named as a defendant. Check theCSLB Web site to be sure you name the suretycompany that carried the bond at the timedamages occurred. Claims against a suretycompany must be made within two years afterthe damage occurred.If you are including the surety company in yourclaim, you must prove:• You are one of the beneficiaries of the bond.If you are a homeowner, you must prove youare a homeowner contracting for homeimprovements made to your personal familyresidence;• The damages you are claiming; and• That the damages you are claiming arose outof violations of Contractors License Law.Request that the court include in its order thespecific Contractor’s License Law codeviolations that the contractor committed.The court can order the surety to pay up to$4,000. (Code of Civil Procedure Section116.220(c)). (Claims above $5,000 must be filedin Superior Court.)Naming the Registrar as a defendantIf the CSLB Web site says the Registrar holds acash deposit, you must name the Registrar as adefendant in your Small Claims Court suit inorder to be paid.Notifying defendantsEach defendant you name must be properlynotified of the lawsuit. For more information onnaming and notifying defendants, see Using theSmall Claims Court chapters “How Do YouName the Defendant?” and “How Do YouNotify the Defendant?” -------------------------------------------------------------------------------- Page 2 2/04Contractors State License BoardP.O. Box 26000, Sacramento, CA 95826-0026www.cslb.ca.govHow CSLB’s Judgment Unit canhelp you collect on the judgmentAfter you’ve prevailed in Small Claims Court andreceived a judgment against a contractor, collectingon that judgment may be problematic. In addition tousing the methods described in Using the SmallClaims Court booklet to collect on a judgment, youcan use the services of CSLB’s Judgment Unit. Theunit cannot collect a judgment for you or force acontractor to pay, but it can suspend the contractor’slicense until the judgment has been satisfied. Acontractor cannot legally work with a suspendedlicense.To notify the CSLB of an unpaid judgment send acopy of the judgment from the Small Claims Courtto CSLB at: Contractors State License BoardJudgment Unit, P.O. Box 26000, Sacramento, CA95826.The judgment must properly identify the contractorand be both monetary and construction-related.The court will identify the contractor based on howyou named the defendants, so be sure you do soproperly by using the names listed on CSLB’s Website. If a defendant is improperly identified in ajudgment, you can request a corrected judgment, butthey are rarely granted.Construction-related judgments can go beyondviolations of Contractor’s License Law; they caninclude secondary damage to your property, such aslawn damaged by work trucks. Such construction-related judgments should be sent to CSLB’sJudgment Unit, as well.If CSLB receives an acceptable copy of anunsatisfied judgment within 90 days of thejudgment, CSLB gives the contractor 90 days to paythe judgment. If it is not paid within 90 days, thelicense is suspended until paid. If CSLB receives anacceptable copy of an unsatisfied judgment 91 daysor longer after the judgment, the license isimmediately suspended until paid.The CSLB cannot suspend the license if thecontractor files bankruptcy and cannot pay ajudgment. In that case, collecting from the suretycompany may be your only recourse.A Consumer Guide toFiling aSmall Claims CourtConstructionClaimOther ResourcesCalifornia Department of Consumer Affairs (DCA)www.dca.ca.govThe publication, Using the Small Claims Court, isavailable on the DCA Web site.Contractors State License Boardwww.cslb.ca.govThe pamphlet, A Guide to Contractor License Bonds, isavailable on the CSLB Web site or can be ordered fromthe address below.
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