Legal Question in Real Estate Law in California

Re: statute of limitations and small calims

if your ex g/f files suit on the basis of the facts u have submitted thus far, you can reply in your small claims court answer to her complaint that the applicable statute of limitations period has run full course thus wiping out her claim entirely at this point. this is your procedural defense that should stop the case from ever being heard. if you have to appear in court regardless, use the statute of limitations as your procedural defense there as well, but also include as your substantive defenses counterclaims for abuse of process and wrongful use of civil proceedings since she is only suing you now because you have threatened to sue her for the $350 she owes you. this would be bad cause on her part in which you may be entitled additional recovery against her should she proceed in court against you now. if you would like further assistance on this matter, email me the specifics of your case today.

Re: statute of limitations and small calims

The two year period begins on the day on which suit could first be brought, or to use the legal phrase, 'when the cause of action arises.' When a debt arises over time, such as failure to make payments due every month for a year, there are in theory 12 separate causes of action and each has its own two-year clock, so the potential recovery on the earlier indebtedness keeps dropping off; every month the oldest claim becomes unrecoverable. When the entire debt is at least two years old, the statute of limitations is a complete defense.

There are some technicalities in applying the statute of limitations defense. It can be 'tolled' (the clock temporarily stops running) by certain factors, e.g. where the plaintiff is a minor, out of state, incarcerated, etc.

The statute of limitations is an affirmative defense and must be asserted in court. Since small claims doesn't use demurrers or answers, you have to show up. Be prepared to present some testimony to establish your defense. Do not, however, specifically admit the debt or present anything in writing that evidences the debt; this can waive your statute of limitations defense.

There is another informal way to use the statute of limitations, and that is to persuade the adverse party to settle or not to bother to sue in the first place. If suit is nevertheless served on you and not dismissed, however, you still need to show up and assert the defense in court.

Re: statute of limitations and small calims

The statute of limitations is a defense to a claim as stated in the previous responses. An interesting question is can your ex girlfriend use the fact that you owed her rent as a defense against YOUR claim of $350? You say she will only sue you if you pursue your claim against her. So is it worth it to pursue your claim against her? Even though the statute of limitations has run and your girlfriend is prohibited from suing you for the back rent, if you try to sue HER for the $350 she still may be able to bring up the back rent as a defense to YOUR claim that she owes you $350. Consider HER defense if you decide to sue her.