Legal Question in Civil Litigation in California

Hi:

This is my situation:

Previous owner of the house hired a contractor in February to do some work on the house. The contractor believed he was underpaid (or not paid?), filed a claim in the small claim court, the claim was dismissed in June.

I bought the house in July (closing date is in July).

This week I was served a civil lawsuit notice and all the docs that the contractor filed a case in civil court against the previous owner; his RE agent, me and my wife are also named as defendants. He claims breach of contract and fraud (conspiracy to not pay for the work).

This is happening in San Jose, CA.

I need to file a response and I want me and my wife excluded from this lawsuit. I was told that I need to file a demurrer but the demurrer does not dispute the facts implied in the lawsuit (like my breaching of contract, but I never had a contract with the plaintiff.) so I am concerned if that is the right type of response in my case.

What is my best course of actions?


Asked on 12/15/11, 12:25 am

4 Answers from Attorneys
Michael Stone Law Offices of Michael B. Stone Toll Free 1-855-USE-MIKE

The answer to your question depends on whether the contractor is 1) licensed; and/or 2) represented by an attorney. Best guess is that you should have a lawyer file an appropriate responsive pleading, and also send the plaintiff (or counsel) a letter demanding that the lawsuit be dropped and threatening monetary sanctions for filing a frivolous lawsuit. Do not attempt to file papers with the court by yourself, especially if he is represented by an attorney.

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Answered on 12/15/11, 1:39 am
Edward Hoffman Law Offices of Edward A. Hoffman

Your best course of action is to get a lawyer. Your situation is complex, and there are many ways you could make matters worse by trying to handle this yourself. If you have homeowner's insurance and properly notify the insurer of the lawsuit, it may provide a lawyer for you.

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Answered on 12/15/11, 12:38 pm

I agree with Mr. Stone and Mr. Hoffman. I would be happy to meet with you in my San Jose office for a no-obligation initial consultation. I have nearly 25 years experience in construction and real estate law, an have handled hundreds of cases like yours.

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Answered on 12/15/11, 12:44 pm
Anthony Roach Law Office of Anthony A. Roach

Based on what you have provided in your post, it would appear that a demurrer may be appropriate. A demurrer assumes the truth of any matters alleged in the complaint, and also any matters subject to judicial notice. It would appear that your demurrer is based on two grounds:

1. Plaintiff, the contractor, filed a small claims case against the previous owner and the case was dismissed. If the case was dismissed by the court, then the matter may be res judicata, and a new lawsuit barred. If he dismissed it himself, then res judicata will not apply. A party cannot file a lawsuit in small claims, lose, and then file again in Superior Court.

2. It does not appear that you were parties to the contract, and were not owners of the property at the time the work was done. It is fundamental that a person cannot be sued for breach of contract if they were not a party to the contract.

Demurrers are very technical, and involve tricky rules and skilled legal writing. I suggest speaking to a competent attorney who handles pre-trial litigation on a regular basis. Your best bet would probably be to contact Mr. McCormick and consult on these issues.

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Answered on 12/16/11, 9:17 am


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