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Can defendant sue plaintiff if the item is not working.

Berkeley, CA |

Let say that I bought an item, seller sue me because I dispute it is not working. Then small claim court said I have to buy the item because some bizare E*ay contract. So I pay the plaintiff, but since the item is not really working , can I now sue plaintiff for selling me an item that is not working, and I did not counter sue him in small claim court

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Attorney answers 3


Technically, you should have brought your counterclaim in the previous small claims case. If you claimed at the hearing that the item was not working, you might be barred from bringing a claim for that reason now. It is called res judicata or collateral estoppel, which essentially means that if your dispute was heard and decided on the merits, you cannot bring it again.
You should probably take all the information and court papers to an attorney for a consultation to be sure.
It may also depend on the value of the item. It may not be worth your time and energy to fight over something with a low value. Only you can make that determination.


No - typically, in any lawsuit, at the end of the claim, everybody agrees to a mutual release, which means that neither party can sue the other party with regards to the same claim ever again. This would include what you are thinking about suing the seller of the item for. You needed to counter-sue him in the small claims lawsuit.


You may not be aware that you do have a right to appeal the Small Claims Court decision and have a trial de novo in front of a Superior Court judge. Otherwise, I think your Cross Complaint would have been a mandatory claim that had to be brought when the original action was heard. Your best path to take unless the time period has run would be to file your appeal.

I hope this is helpful.

John N. Kitta

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