Clark v. Superior Court

Opinion

SMITH, J.

Petitioner is the defendant in a small claims action brought against her by real party in interest, a dentist, pursuant to the

[867]

provisions of section 116 et seq. of Code of Civil Procedure

1

to recover his fee for services, and judgment has been entered against her in the sum of $500. She appealed to the superior court pursuant to the provisions of section 117.8 and seeks review by extraordinary writ of an order of respondent court denying her motion for a continuance to allow the commencement of an action for malpractice against real party and for an order consolidating the actions for trial.

Although this court does not ordinarily interfere in matters arising in the small claims court, there is precedent for intervention in extraordinary situations requiring review of important issues

(Davis

v.

Superior Court

(1980) 102 Cal.App.3d 164, 168 [162 Cal.Rptr. 167]).

Code of Civil Procedure section 116.2 provides that “The small claims division shall have jurisdiction in actions: (a) For recovery of money only where the amount of the demand does not exceed seven hundred fifty dollars ($750);.. .”

Code of Civil Procedure section 116.8 provides “.. .(b) If defendant has a claim against plaintiff in an amount over the jurisdiction of the small claims court as set forth in Section 116.2, but of a nature which would be the subject of a cross-complaint under the rules of pleading and practice governing the superior court, then defendant may commence an action against plaintiff in a court of competent jurisdiction and file with the small claims court wherein plaintiff has commenced his action, at or before the time set for the trial of the small claims action, an affidavit setting forth the facts of the commencement of such action by such defendant. He shall attach to such affidavit a true copy of the complaint so filed by defendant against plaintiff, and pay to the clerk of the small claims court the sum of one dollar ($1) for a transmittal fee, and shall deliver to plaintiff in person a copy of the affidavit and complaint at or before the time above stated.