How to Sue the Person Suing You

If you think the person suing you (called "the plaintiff") owes you money or hurt you, you can ask the court to decide your claim and the plaintiff’s claim at the same time. If you want to do this, you must normally file and serve a defendant's claim using form SC-120 at least 5 days before the hearing date. But, if you were served with the Plaintiff's Claim (Form SC-100) ten days or less before the hearing date you must file and serve your defendant's claim at least 1 day before the hearing date. The instructions below will give you more information about filing and serving your claim and links to the forms you need.

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 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 (like a government entity) you cannot ask for more than $5,000. And you cannot have a lawyer represent you in court.  But you can talk to a lawyer before or after your court trial.

  • If you want to ask for more than $10,000 (for individuals) or $5,000 (businesses and other entities), 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. Click for information on lawsuits in the civil division.

Note: You can only file a defendant's claim against those who have sued you. For example, if you were only sued by the owner of a car for a car accident you were in (and not by the driver of that car), then you cannot file a defendant's claim against both the owner and the driver. AND, there is an exception to the $10,000 limit you should keep in mind: If you are suing the plaintiff for bodily injuries that were the result of a car accident, and the plaintiff has car insurance that includes a "duty to defend," you can only file a claim for a maximum of $7,500.

If you decide file a defendant's claim against the plaintiff

If you decide to file a defendant’s claim, there are 3 steps you must take before your court hearing. 

Before you start with step 1, think about whether you want to ask the plaintiff to pay you the money you claim he or she owes you.  This is a “demand for payment,” and you can do it in person, by phone, or in writing.  It is NOT required for a defendant’s claim, but you can do it if you would like.

Then, you are ready to follow the steps below. Click on each step for more information.


Step 1. Fill Out Your Defendant's Claim

To prepare your defendant's claim, you need to fill out court forms that include a Defendant's Claim (Form SC-120). These forms tell the court and the plaintiff (the person or business you are suing back) about your claim.

To fill out your papers:

  1. Read Information for the Plaintiff (Small Claims) (Form SC-100-INFO) and the "Information for the Defendant" on page 4 (in English) and page 5 (in Spanish) of Form SC-100

  2. Get help from your court’s small claims legal advisor
    Your court’s small claims legal advisor may be able to help you figure out how much to sue for as well as help you fill out your court forms.

  3. Fill out your court forms
    Fill out: 
    • 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 witness statements, you can use 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) declaration.

  4. Fill out your court’s local forms (if any)
    Ask your local court clerk if there are local forms you have to fill out. Some courts also have forms on the court's website.

  5. Have your forms reviewed 
    You can ask a small claims advisor to review your paperwork after you filled it out. They can help you make sure you filled it out properly before you file it.  You can also go to a public law library and ask a librarian for self-help books to help you fill out your forms.

  6. File your defendant's claim
    After you fill out your forms, the next step is to take your forms to the court (called "filing your claim").

Step 2. File Your Defendant's Claim

After you finish your court forms, you must give your forms to the clerk of the court to file your defendant's claim.

Follow these steps to file your claim:

  1. Figure out how much you have to pay to file
    You will have to pay a fee to file papers with the court. The amount of your fee depends on how much you are suing for.

    • If you cannot afford the filing fee, you can ask the court for a fee waiver.  If you get a fee waiver, you will not have to pay the filing fees.  

  2. Take your forms to the clerk of the small claims division at your superior court
    Take your:
    • Defendant’s Claim and ORDER to Go to Small Claims Court (Form SC-120);
    • Other forms you filled out (if any); and 
    • Payment or fee waiver forms to the court clerk.
    • Some courts also require you to bring 2 or more copies of your Form SC-120 and other forms.

  3. File your forms with the clerk 
    When you take your forms to the court, the clerk will look at your forms and may ask you a few questions. After looking at your forms, the clerk will usually stamp the forms "Filed" and fill in the date, time, and location of your court trial (it should be the same date as on the Plaintiff's Claim that you were served with). The clerk will keep the originals of theforms and give you a copy for yourself and other copies for each plaintiff you are suing.

    • If you do not speak English well, ask the clerk for an interpreter for your hearing date.  If a court interpreter is not available, bring someone to interpret for you. Do not ask a child, a protected person, or a witness to interpret for you. Get tips to help you work with a court interpreter.

  4. Mark your calendar with the date of your court hearing
    It is very important you go to your court hearing. If you do not go, the judge will probably make a decision without hearing your side.

  5. Keep your court papers safe in a separate folder
    Be sure you keep a clean copy of all of your court papers in this folder.
    • If you realize, after you file your defendant’s claim, that you want to change something you asked for in your claim or want to add more information, you may be able to correct your Form SC-120. To change your Form SC-120, you can write a letter or fill out a Declaration (Form MC-030) and explain what you want to change or clarify from your Form SC-120. File the letter or form with the clerk and mail a copy to the plaintiff. Bring extra copies to your trial.
    • You may also be able to change your court date if you need to postpone it for a valid reason. Click to find out how to change your court date.

  6. Serve your forms
    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.

Step 3. Serve Your Defendant's Claim

"Service" is when someone—NOT you or anyone else listed in this case—gives a copy of your court papers to the person, business, or public entity you are filing a defendant's claim against. Service lets the other side know:

  • What you are asking for;
  • When and where the trial will be; and
  • What they can do.

"Service" is VERY important and can be confusing. Read the Service of Process section to learn more about serving court papers. You can also ask your small claims advisor for help with service.

There are also 2 court forms that can help you understand service in your small claims case and make sure you follow the right steps.  Read:

  • What is Proof of Service? (Small Claims) (Form SC-104B); and
  • How to Serve a Business or Public Entity (Small Claims) (Form SC-104C).

To make sure you serve your papers properly:

 


Serve Your Papers Before the Deadline
The deadline 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 have to serve the plaintiff at least 5 days before the hearing.
  • If you received a copy of the Plaintiff's Claim 10 days or less before the trial date, you have to serve the plaintiff at least 1 day before the hearing.


Serve Your Claim in the Proper Legal Way
The server must be at least 18 and not listed in the case. He or she can be:

  • A friend, relative or co-worker.
  • A "process server," who is someone you pay to deliver court forms. Look in the Yellow Pages under "Process Serving."
  • The sheriff (or marshal if your county has one) can also deliver court forms. Find the sheriff's office online or ask the court clerk how to contact the sheriff. Or look in the county section of your phone book under "sheriff." You must pay the sheriff, unless you qualify for a fee waiver.

There are 3 different ways to serve a Defendant's Claim in a small claims case:

    1. Personal Service
    2. Substituted Service 
    3. Service by Certified Mail by the Court Clerk

 

Personal Service
Ask your server to personally "serve" (give) a copy of your court papers to the plaintiff, or to the agent legally authorized to accept court papers for the plaintiff.    Tell the server to:

  • Walk up to the person to be served.
  • Say, "These are court papers."
  • Give the person copies of all the court papers. If the person will not take the papers, just leave them near the person. It does not matter if the person tears them up or throws them away.
  • Fill out the Proof of Service (Small Claims) (Form SC-104), sign it on page 2, and return the completed form to you so that you can file it.



Substituted Service
If the plaintiff is not at home or work when your server goes there, your server can give the court papers to:

  • A competent adult (at least 18) living at the home with the person to be served (the plaintiff);
  • An adult who seems to be in charge where the plaintiff usually works; or
  • An adult who seems to be in charge where the plaintiff receives mail.

Your server also has to:

  • Tell the person he or she is leaving the court papers with to give them to the plaintiff.
  • Write down the name of the person he or she gave the court papers to. If the person will not give his or her name, your server must write down a physical description of the person who took the papers.
  • Mail another copy of the court papers by first-class mail to the plaintiff at the same address where your server left the papers. 
  • Fill out the Proof of Service (Small Claims) (Form SC-104), and sign it on page 2. The server MUST also fill out and sign the Proof of Mailing (Substituted Service) (Form SC-104A) for the second step of mailing a copy of the Defendant's Claim. Once the server fills out both forms, he or she must return the completed forms to you so that you can file them with the clerk.

 

Service by Certified Mail by the Court Clerk
You can pay the court clerk to mail your claim to the plaintiff by certified mail. This can be very convenient and the fee is low.

But this type of service can also be very unreliable. The court will probably not accept it and will make you serve again (with personal or substituted service) if:

  • The plaintiff or the plaintiff's agent for service does not sign the certified mail receipt with his or her complete name;
  • The judge cannot read the signature on the certified mail receipt and cannot tell who signed it; or
  • Someone else signed the receipt.


Serve the right person
If you are filing a Defendant's Claim against a person (or people) — not a business or public entity — serve each person you are suing. For example, if you were in a car accident and you are filing a Defendant's Claim against the owner and the driver of the car, you must serve both people.

If you are filing a Defendant's Claim against a business or public entity, click on a topic below:

 

If you are suing a partnership:

  • If you are just filing a Defendant's Claim against the business, serve 1 of the partners.
  • If you are filing a Defendant's Claim against a business and the partners, serve each partner.
  • If you are filing a Defendant's Claim against a limited partnership, serve the general partner or general manager.
  • If the business has an agent for service, you can serve the agent.  


If you are suing a corporation or limited liability company (LLC):

  • Serve an officer of the corporation or LLC or their agent for service.
  • Keep in mind that you can find information about the corporation or LLC on the Plaintiff's Claim (Form SC-100).
  • You can find out the name of the corporation's or LLC's agent for service at the website of the California Secretary of State.
  • The website can also tell you how to write to the Secretary of State to get more information about the corporation or LLC, such as a list of the company's officers.


If you are suing your landlord:

  • Serve the owner of the property you are renting.
  • Your landlord's name, address, and phone number should be on the landlord's Plaintiff's Claim (Form SC-100).
  • If it is not, the information should be on your lease or posted on 2 conspicuous places on the property you are renting.


If you are suing the county

  • Serve the county clerk or agent authorized to accept service.
  • The address and phone number for the agency should be on the Plaintiff's Claim (Form SC-100) that you were served with.
  • If it is not, check your county's website for the clerk's address and telephone number.
  • Or find the address and phone number in the government pages of your phone book.


If you are suing the city

  • Serve the city clerk or agent authorized to accept service.
  • The address and phone number for the agency should be on the Plaintiff's Claim (Form SC-100) that you were served with.
  • If it is not, find the address and phone number in the government pages of your phone book. This information is usually listed in the city section, under CLERK.


If you are suing the state

  • The address and phone number for the agency you need to serve should be on the Plaintiff's Claim (Form SC-100) that you were served with.
  • If it is not, you can serve the state Attorney General's office if you are filing a Defendant's Claim against the California Highway Patrol or most consumer affairs boards.
  • If you are filing a Defendant’s Claim against Caltrans, you must serve the California Department of Transportation. Click for the headquarters' address.
  • Click for the mailing address of the Office of the Attorney General or call the office at 1-800-952-5225 for more information. 
  • Keep in mind you must serve the person authorized to receive service for each individual state entity. That person is usually the head of the state entity.
     

File a Proof of Service in court
Once your server has served the plaintiff with a copy of your Defendant’s Claim, your server has to fill out a Proof of Service (Small Claims) (Form SC-104), for each person, business, or public entity served. The proof of service tells the court who was served and when, where, and how they were served. If any of the plaintiffs were served by substituted service, your server MUST also fill out and sign the Proof of Mailing (Substituted Service) (Form SC-104A) for the second step of mailing a copy of the Defendant's Claim

When the server fills out and signs the Proof of Service, you must file it with the court before your court date (at least 5 days before), or if you do not have time, take the proof of service to your trial.

If you do not have a Proof of Service for each person served, or if the Proof of Service is not filled out correctly, the judge may not be able to hear your defendant’s claim.  Have the small claims advisor look over the proof of service to make sure it was filled out correctly.

After you serve the plaintiff and file your Proof of Service with the court, you should get ready to Go to Court.

Site Map | Careers | Contact Us | Accessibility | Public Access to Records | Terms of Use | Privacy