How can I sue the Plaintiff using a counterclaim?
Updated: Apr 26
If you think the person suing you (called "the plaintiff") owes you money or hurts you, you can file a “defendant’s claim” or “counterclaim” and ask the court to decide your claim and the plaintiff’s claim at the same time. You can only file a defendant's claim against those who are suing you. For example, if you were sued only by the owner of a car over a car accident you were in (and not by the driver of that car), then you could file a defendant's claim against the owner but not against the driver.
Keep in mind that if you want to sue the plaintiff as part of the claim he or she filed against you, you have to meet the requirements for the same court. For example, if a plaintiff is suing you in a California small claims court (only for disputes under $10,000 in damages) then your countersuit must also be appropriate in small claims court. (That means that you cannot ask for more than $10,000 in your claim. If you are a business or other entity, such as a government entity, you cannot ask for more than $5,000. You cannot have a lawyer represent you in small claims court, but you can talk to a lawyer before and/or after your court trial.
If you want to ask for more than $10,000 (as an individual) or $5,000 (as a business or other entity), you need to sue in the civil division of the superior court and not in small claims court. In the civil division, lawyers can represent each side.
You must prepare, file, and then serve your defendant's claim.
First, fill out your court forms:
You must fill out and file Defendant's Claim and ORDER to Go to Small Claims Court (Form SC-120)
If there are more than 2 plaintiffs or 2 defendants, also fill out Other Plaintiffs or Defendants (Attachment to Defendant's Claim and ORDER to Go to Small Claims Court) (Form SC-120A)
If you need more space to describe your claim and what happened, or you need to include witness statements, fill out a Declaration (Form MC-030)
If you are a business, you may also have to fill out a Fictitious Business Name (Small Claims) (Form SC-103)
After you fill out your forms, the next step is to file your forms at the court. You must give your forms to the clerk of the court to file your defendant's claim.
Once you file your claim, the other side needs to find out about the case and the court hearing. That happens when you “serve” your forms. "Service" is VERY important and can be confusing. Read about Service of Process on your court’s website.
Serve your papers before the deadline. The deadline by which you have to serve your Defendant's Claim (Form SC-120) depends on when you were served with the Plaintiff's Claim (Form SC-100):
If you received a copy of the Plaintiff's Claim more than 10 days before the trial date, you must serve the plaintiff at least 5 days before the hearing
If you received a copy of the Plaintiff's Claim 10 days or fewer before the trial date, you must serve the plaintiff at least 1 day before the hearing
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