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Transferring a Case Out of California Small Claims

[This is a transcript is a result of automated audio transcription from the video posted below. For help from The Small Claims Lawyer, a California small claims lawyer, visit www.TheSmallClaimsLawyer.com or call 888-632-6623. Grammatical errors may be present in the transcript below. This transcript is for informational purposes only and may not be relied on as legal advice.]

Hey everyone is attorney Brian Russ I’m a small claims lawyer in California helping California clients with California cases. Now, today’s topic is about small claims and how transfer a small claims case out of the small claims court into higher court. In California we have several different types of courts, different types of jurisdictions we have small claims which is generally 10,000 and below unless you’re a corporation then it’s $5,000 and below. Then we have what’s called a limited civil is where it’s a case at $25,000 or below, and we have unlimited civil which is $25,000 and above. Each level has their own different procedural rules and applications and benefits. So today, specifically we’re talking about how to transfer a case out of small claims into a higher court, whether it’s unlimited or limited but again just getting it out of small claims.

 Now before I get any further, I have to give you a few disclaimers. The first disclaimer is that this video is not legal advice – it’s for informational and educational purposes only. I’m not creating this video for any particular person or any particular situation. The next is if you have a legal situation, I highly encourage you to retain an attorney to help you with your situation and help you work through the case help you work through the facts and applying the law to the facts. Next is, you know by your viewing this video no attorney-client relationship forms. Again, I’m not your attorney. I’m not helping you. You know this video is not meant for any particular person or any particular situation so just make sure you remember that. The next disclaimer is that this video is an advertisement. To the extent it can be considered advertisement it should be considered an advertisement. I’m an attorney and I sell my services and I will probably want to work with you. Maybe. Give me a call. My number is up there 888-632-6623. You can visit me online at http://www.TheSmallClaimsLawyer.com. Set up a time to talk to my team, and we’ll figure out if we can help you with your case.

Now, to the topic of the video, transferring out. So the first thing you have to remember, the first thing you have to consider is what your status is, in the case, if you’re the plaintiff. So that means if you’re the person bringing the case, there’s kind of different rules you have to follow, so if you’re suing somebody, and you’ve already filed in small claims, but now you want to bring it to a higher court. The first thing you have to know is that you need to avoid what’s called res judicata. Avoid res judicata. Res judicata is the theory that, you know somebody cannot proceed with a claim if it’s already been adjudicated, so if you’ve brought a claim in small claims, and you lose, you know, you cannot then take that same claim to higher general court, it’d be barred on the theory of res judicata.

And so, so I see that sometimes people think oh they lose a small claims well they’re not going to appeal that there’s going to take it higher court you can’t do it. So if you want to remove your case from small claims to higher general court and again take advantage of expanded discovery appeal rights, things like that, I mean it’s more costly but you know it’s available. You have to transfer it out before the judgment is rendered.

So, you know, generally, the way I recommend it or I should say the way I’ve seen it done, and this is much easier this way, essentially you just request, you know your case be dismissed without prejudice, there’s a judicial council form for you to request dismissal, make sure it’s dismissed without prejudice. If you dismiss with prejudice, it means you can’t bring it again, because you’re barred from bringing it again so request it be dismissed without prejudice, and that takes you know that essentially closes the case and then allows you to refile. So it’s not a true transfer because it’s not like it’s going from small claims to higher general court, it is completely ending the small claims case, and then you are then allowed to refile higher general courts. So if you’re the plaintiff, again, if you want to transfer out make sure you do it before you get a judgment. And before you know if you do, you can just request a dismissal without prejudice.

Now if you’re a defendant, it’s a little more complicated, because you’re not the one bringing the claim so you can’t request the dismissal. So if you’re the defendant, the first thing, if you’ve been sued or if you’ve been served. And you want to file a counterclaim, and take the thing to higher court. So if you’ve been sued in small claims and you want to get higher court.

The first thing you have to do is you have to remember that you must have your own claim that is above the small claims threshold. So again the small claims threshold for an individual is $10,000, for a corporation or an entity, it’s $5,000. So if you’ve been sued in small claims say for 2,500 bucks, you know, say a painter sues you because you didn’t pay the bill, but you’re gonna claim that the painter, messed up the siding on your house can cost you more than $10,000. What you have to do is first you have to have that claim, above your small claims threshold so in this example you have a claim for $15,000 or $12,000. It meets that threshold. Now, if you didn’t pay the painter and you claim that painter caused you know $5,000 In damages you can’t remove it – you can’t transfer it – to higher court because it doesn’t meet and doesn’t exceed the small claims threshold. So assuming you do have your own separate claim so a counter claim against the party, you know, same, same subject matter, same facts, same incident, and you have your own counterclaim, that is above the small claims threshold then what you have to do is you have to file a suit at higher court, you actually have to go ahead and you have to file your, your suit in higher court, you have to prove that you have the suit filed there.

And then after that, you’re going to file a motion to transfer. Now there’s other interim steps likes serving notices, again this is a high level overview, this isn’t supposed to be an exhaustive lesson. But you essentially have to file a suit in higher court and then you have to file a motion to transfer and the small claims court, because essentially what you have to do is you have to prove the small claims court, like, “Look, I have my own case, it’s already been filed, you know, it’s been served on the other party they know about it”, then you’re requesting the court to then transfer it out to the higher general court now.

There’s also procedures where you can transfer, on the basis of venue so venue is essentially you know the idea of, you know, the court hearing the case is in the wrong spot so say you live in Bakersfield and you get into a car accident in Eureka, and the person driving the car lives in Eureka, but you file a suit in Bakersfield, you know, essentially what the courts going to do and what the other party should do is they’re gonna say no, you know this this claim should be held up in Eureka, because that’s where the incident occurred so it’s still in the small claims threshold in the state of California, it’s just a matter of transferring the venue, from down in Bakersfield to up in Eureka, for the topic today this is a pretty complicated topic, transferring out, especially if you’re the defendant if you’re the plaintiff. I see it happen, do it yourself all the time, or I should say, I can see this happening all time to do it yourself setting but if you’re the defendant I really recommend you if you work with an attorney and make sure you transfer it out correctly. Now the judge can transfer it out after you after they’ve issued judgment in the small claims court, it is statutorily allowed.

But again, you want to make sure you’re not setting yourself up for failure on the res judicata front right because if you’ve already defended yourself on the claim and maybe you tried to bring the counterclaim in small claims and the judge considered it like and you lose, you know, and you try bring that same claim again a higher General Court, you record these transfer procedures I can see the court, you know essentially saying no, your small claims court not allowing it on the basis of fresh truth caught up or if it does get transferred. You know it still eventually fails in superior court, on the basis registry because I think res judicata is really one of the most important considerations here is making sure that you’re not trying to get a second bite of the apple, that you’re not trying to bring the claim again because you lost in small claims you’re trying to figure out another way to do it, because small things, I mean, it’s court man, it’s, it’s, it’s, it’s a judicial decision to judgment.

And you’re not allowed to do it twice, so that’s it if you have questions, again, reach out to my office. The Small Claims lawyer calm my phone numbers above 886326623 Reach out, we’ll get you on a call with our team, we’ll figure out what we can do to help, and we’ll talk to you later. All right.