Legal Question in Real Estate Law in California

I have attached the relevant code section below. basically, what it says is that if the defendant has a claim for more than $7,500 arising from the same matter the plaintiff is suing for, the defendant can sue in superior court and file a motion to transfer the small claims case to the case the defendant has filed but that the small claims judge can first issue a judgment in the small claims case or refuse to make the transfer [it used to be mandatory that the transfer had to be made].

I think the seller is bluffing.

i will finish my response later today.

116.390. (a) If a defendant has a claim against a plaintiff that

exceeds the jurisdictional limits stated in Sections 116.220,

116.221, and 116.231, and the claim relates to the contract,

transaction, matter, or event which is the subject of the plaintiff's

claim, the defendant may commence an action against the plaintiff in

a court of competent jurisdiction and request the small claims court

to transfer the small claims action to that court.

(b) The defendant may make the request by filing with the small

claims court in which the plaintiff commenced the action, at or

before the time set for the hearing of that action, a declaration

stating the facts concerning the defendant's action against the

plaintiff with a true copy of the complaint so filed by the defendant

against the plaintiff. The defendant shall cause a copy of the

declaration and complaint to be personally delivered to the plaintiff

at or before the time set for the hearing of the small claims

action.

(c) In ruling on a motion to transfer, the small claims court may

do any of the following: (1) render judgment on the small claims case

prior to the transfer; (2) not render judgment and transfer the

small claims case; (3) refuse to transfer the small claims case on

the grounds that the ends of justice would not be served. If the

small claims action is transferred prior to judgment, both actions

shall be tried together in the transferee court.

(d) When the small claims court orders the action transferred, it

shall transmit all files and papers to the transferee court.

(e) The plaintiff in the small claims action shall not be required

to pay to the clerk of the transferee court any transmittal,

appearance, or filing fee unless the plaintiff appears in the

transferee court, in which event the plaintiff shall be required to

pay the filing fee and any other fee required of a defendant in the

transferee court. However, if the transferee court rules against the

plaintiff in the action filed in that court, the court may award to

the defendant in that action the costs incurred as a consequence of

the transfer, including attorney's fees and filing fees.

The fact that you want to sue in small claims for flood damage to your home tells me that you don't want to have an attorney and don't want them to have an attorney. That alone tells me volumes, including a huge presumption that you don't really have a very strong case.

Before initiating litigation, there are several things you need to research, including:

(1) Will an expert say under oath that the flood damage was caused by the concrete?

(2) Does your community require a permit for the concrete work?

(3) Is there an attorney-fee provision in your home purchase agreement?

(4) Does your home purchase agreement require mediation or arbitration of disputes?

(5) Consider the argument "The concrete is obvious, and it didn't fail from a theretofore undiscovered defect, so It's doubtful that you can claim a "latent defect." The house, concrete, yard, etc. just did what they were bound to do in a rainstorm of a given intensity. The damage is the result of an act of God."

As Mr. Shers' response points out, a defendant can cross-complain and take the case out of Small Claims and into Superior Court by asserting a claim exceeding the Small Claims jurisdictional limit, here probably $7,500.