Home > Research Legal Advice > Litigation > Can I use the "common count" argument to re-file a small claims action t...
Asked 10 months ago - Glendale, CA
FlagMy (California) company did some work and supplied documents for which we were never paid in 2009. We sued in small claims in 2010, but the judge dismissed it based on information that the defendant had filed bankruptcy. The information was wrong - the defendant never filed bankruptcy. We petitioned the judge to reverse the ruling, but were denied. We would like to re-file small claims. What are our chances of prevailing?
This sounds like a breach of contract case. If so, there is a two year statute of limitations if the contract was oral and four years if it was written. The question is: Where did the information that the defendant filed BK come from? If you simply got a letter telling you that was what was going to happen, and never received any written confirmation of the BK Petition, your cause may be barred by the statute if the contract was oral. If you had something more that seemed to confirm a filing, what was it? Generally, if a BK is filed, it stays all litigation. Once the BK is dismissed, without a discharge, the statute begins to run again.
More clear information is necessary.
Of course, no one can really predict the outcome of any case. But even for a general question regarding res judicata, I think more information is needed regarding the "information" regarding the bankruptcy and also whether the contract was written or oral. One would probably also need to examine the prior small claims court case to see what the specific rulings were.
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