Can I go to Small Claims Court to pay less than what I owe a contractor in California?

Can I go to Small Claims Court to pay less than what I owe a contractor in California? I terminated a bath remodel contract after the licensed GC made several costly mistakes. The last was our discovery of the shower plumbing not done to CA code. We went from a bath/shower to a shower stall, which requires a drain move. We’ve paid him 3/4 of the contract, but now have to hire someone to finish the remodel and redo the shower plumbing. We also discovered he did not pull permits for any of the work. We offered to pay the remaining amount owed after the remodel is done by someone else, and plumbing fixed. He refused. He has sent a Cert. letter with a Mechanic’s Lien notice, a new invoice for more monies he feels we owe him, and a promise to take us to small claims court. I have filed a complaint with the CSLB regarding all his mistakes but have not heard back yet.

You should obtain estimates of the cost to complete the work correctly. If he sues in Small Claims Court, you should file a counter claim for the amount of the estimates. You might want to send him a letter enclosing the estimates and demanding that he pay the amount of the difference between the balance owed on the contract and the cost of properly completing the work.

If he files a lien, he must file suit in Superior Court (not Small Claims Court) to foreclose the lien within 90 days of its recording, or the lien becomes void. You may then petition the Court to remove the lien and recover your reasonable attorneys fees and costs. Good luck!

Shaun K. Boss, San Diego Legal Firm, AV Rating

Call (619) 293-7937 to learn more about this Martindale-Hubbell® AV® Preeminent™ Rated attorney. Shaun K. Boss of Shaun K. Boss APC 306 Upas St., San Diego, CA, 92103. Practice areas include Real Estate, Estate Planning, Business Law and Construction Law.
For more than 130 years, lawyers have relied on the AV® Preeminent™ rating while searching for their own expert attorneys. The Martindale-Hubbell® AV® Preeminent™ rating is the highest possible rating for an attorney for both ethical standards and legal ability. This rating represents the pinnacle of professional excellence. It is achieved only after an attorney has been reviewed and recommended by their peers – members of the bar and the judiciary. Shaun K. Boss has achieved an AV® Preeminent™ Rating from Martindale-Hubbell®. visit: for more information.

Welcome to San Diego Legal Firm!

Welcome to San Diego Legal Firm!

Thank you for visiting our blog today. If you have a question concerning construction law, real estate, business law or estate planning and would like to speak to Shaun directly, please contact him at our San Diego local office (619) 293-7937 or send email to

The Process of Selling Residential Real Estate


Listing a Property – List the property with a local real estate agent.

Typically, the first thing a seller of property does is locate and retain a realtor to “list” the property for sale with the objective of marketing the property both through advertising and through the “multiple listing service” of which most realtors are members. The seller will want to get the broker’s agreement to market the property through advertising, open houses, broker’s caravans and the like. Broker’s commissions are not fixed by law and may be negotiated. The typical real estate commission in San Diego County is 6% of the purchase price, unless a lower rate is negotiated. If a buyer is procured through another realtor, the commission is split between the listing office and the buyer’s broker.


The Offer – Once a potential buyer expresses an interest in purchasing the property, a “written offer” is created and presented to the seller.

The “written offer” covers such subjects as the purchase price, down payment, terms of conventional financing or financing to be provided by the seller; and covers such other subjects as the location and duration of the escrow, title insurance issues, termite and other inspections, seller’s disclosure concerning the property and any contingencies upon which the parties’ obligation of performance depends.


The Contract – If the seller accepts the offer as written, a contract is formed.

Once the contract is formed, the seller signs the “acceptance” portion of the offer. If the seller makes changes in the terms of the offer, a “counter offer” is prepared. There may be several counter offers between the parties. Once both parties have accepted and signed an acceptable counter offer, an enforceable contract is formed.


Setting Up An Escrow Account – Once both parties have made a binding agreement, escrow is “opened” and the buyer’s deposit is placed in escrow.

The escrow holder creates a set of “escrow instructions” that set forth the terms of the transaction. Once the instructions are signed, the escrow holder obtains information and creates documents necessary to carry out the terms of the transaction. During the escrow period, the following events occur: a. The escrow holder orders and obtains a preliminary report of title for the buyer’s approval that shows all liens and encumbrances on the property; b. The brokers arrange a structural pest control report which identifies “required” repairs which are performed at the expense of the seller and “recommended” repairs. c. Other inspections, including a home inspection, are provided at the expense of the seller, and optional inspections by contractors, engineers or geologists are performed. d. “Contingencies” of the transaction are removed so that the transaction may close or are disapproved by the buyer. e.Condominiums require specific records from the condomium associations.


Property Disclosures – In the early stages of the transaction, the seller is required by law to make disclosures concerning the property.

Property disclosure includes listing the properties amenities and physical condition. The seller and the brokers complete a “Real Estate Transfer Disclosure Statement” to be reviewed and approved by the buyer. The seller also is required to make disclosures concerning flood, fire and seismic hazards. It is the seller’s legal obligation to disclose to the buyer any condition affecting the property that might be material to the buyer’s decision to purchase it. Failure to make these disclosures may have significant legal consequences.


Satisfying Contingencies – Before the escrow closing, the seller may be required to meet certain buyer requirements.

Before the escrow closing, the seller may be required to perform various steps such as: “strap” the water heater, install smoke detectors and low-flow toilets. Some local government regulations require additional“retrofits”.


The Closing – The escrow holder orders all loan documents to be prepared for the closing of the real estate sale.

The escrow company prepares the following documents for the clients: a deed for signature by the seller in favor of the buyer, and requires the buyer to deposit the balance of the cash consideration. At the “closing”, the escrow records the deed in favor of the buyer and tenders the net proceeds of sale to the seller after paying real estate commissions and seller’s closing costs, typically including the cost of the buyer’s policy of title insurance; one-half the escrow fees; and document preparation and recording fees. The buyer’s “closing costs” which are deposited in escrow along with the cash consideration required to complete the purchase, include one-half of the escrow fees; the cost of the lender’s policy of title insurance; document preparation and recording fees; and prorations for secured property taxes and homeowner’s insurance. Following the closing, the buyer becomes the owner of the property and takes possession.

The materials in this blogsite have been prepared by Shaun K. Boss, APC for informational purposes only and do not constitute legal advice. The information on this blog is furnished “as is” and without warranty of any kind.

Transmission of the information is not intended to create and receipt does not constitute an attorney-client relationship between the sender and receiver.

Shaun K. Boss, APC does not provide any warranties whatsoever with respect to any hyperlinks found throughout this blog site.

Readers should not act upon this information without first seeking professional legal counsel. Do not send us information until you speak with us and have obtained authorization to send that information to us.

Shaun K. Boss, APC’s legal practice is limited exclusively to representation of clients in the state and federal courts of California, USA. While the firm represents clients from other states and countries in transactional matters, in the event this communication does not conform to the laws and regulations of any state or country in which it may be received, the firm will not accept legal representation based on this communication from a person or entity located in such a state or country. If you have questions regarding this site, please contact us at

Shaun K. Boss
306 Upas Street
San Diego, CA 92103