Legal Question in Construction Law in California

Re: Builder Negligence

Small claims would be heard by a judge and not a jury. As far as it coming down to the opinion of the judge -that is true but his opinion is based on the evidence presented. You as the plaintiff would have the burden of proof so that if the case is split 50/50-you would lose. If you have estimates, reports, pictures, witnesses, etc. indicating that his work was at fault then you may be able to win. If you do not then you will probably lose. It would be good to get the person who repaired the chimney as a witness for you and make sure they will state it was from his negligence and not something you did. From the sound of your question it sounds as if both of you may have contributed to the problem so that you are both responsible legally. The judge may assign a percentage of fault to you and him so that he is responsible for less than 100% of the damages. If you proceed then have the total cost of repair for the court so that if the judge states that there is comparative fault (as indicated above) then you recover the most you can (Example: $15K damages for total cost to repair chimney including what the insurance paid and he is 50% at fault then judgment would be for $7500.00 to you.-You may have to reimburse your insurance company for some of those proceedings under your agreement with them)

I would suggest you go for a small claims suit. You have nothing to lose compared to what you have now which is zero. Good luck.

Re: Builder Negligence

Possibly the builder might defend on the basis that wood-burning fireplaces are illegal in your area. Is that true? If so, your case is somewhat weakened.

In any event, I think you are unlikely to recover more than your actual monetary loss (now $5,000) in any court. Punitive or exemplary damages are not given in pure negligence matters, as this seems to be; fraud, malice or oppression must be pled and proven.

Small claims judges usually try to be careful and fair, but they do indeed have a reputation for occasionally producing the wrong result, and a plaintiff cannot appeal from an unfavorable decision (with very rare exceptions).

Re: Builder Negligence

Yes, it would be a judge (i.e. not jury) decision in small claims court. Sometimes a letter from an attorney can help to avoid the necessity of filing litigation. It would be worth talking to an attorney to determine if there are additional damages that you may be entitled to recover. Many attorneys will provide a free initial consultation at no risk to you.