Help on small claim court preparation

[sako]

I'm representing our company in a small claim court. We did a PM for the client which was recorded in June of 2023. The surveyor's statement states that we will set corners by "before December of 2023". We assume there will be construction on the property and waited until the client informs us of the time to set the corners. Fast forward until January of 2025, where the client calls us to inform his intention of selling the subdivided part of his property, he demands we set the corners. We prepare a new contract for setting corners. The original contract has not mentioned setting corners.
We set corners 2 days later when we realize he will not pay, so we file a lien no his property. He asks to remove the lien, instead he puts money in Suerty company. Now we take him to small claim court to get the judgement and get paid.
Meanwhile he wants to sue us for damages 3X more than what we demand ( even though he sold the property).
I have printed all the contracts, emails and asking if anybody has any advise on how to present my case, thanks.

[sako]

66496. Interior monuments need not be set at the time the map is recorded, if the engineer or surveyor certifies on the map that the monuments will be set on or before a specified later date, and if the subdivider furnishes to the legislative body security guaranteeing the payment of the cost of setting such monuments.

In our case the City failed to collect the bond!!

[DWoolley]

Do you belong to a CLSA chapter?

DWoolley

[sako]

Do you belong to a CLSA chapter?

DWoolley

Yes, sir!

[DWoolley]

Orange County has a "Guide to Small Claims Court" for our members.

I was hoping to get you to claim OC as your home chapter and you would get you a copy.

Send me email and I will get you a copy [don't tell anyone].

DWoolley

[sako]

sent email to info@d....

[sako]

The owner's claim is that since we " violated" the term in " Surveyor's statement" regarding setting the corners by a certain date, he doesn't need to pay us.
Our reasoning is that most of time, construction of new home affects the time when we set those corners, we would rather set the corners when everything is set and done, to avoid corners being obliterated or destroyed. This is to the benefit of the owner.
Is there any explanation about the "Surveyor's statement" specifically about the time limit of setting corners?

[PLS7393]

When reading the SMA, it is my interpretation that Sect. 66496 you referenced is directed more towards a Final Map that has interior streets with monuments. This is the common practice to defer until the streets are improved, thus the required Bonds are collected by the city, if they understand the concept. Most cities do not get this right, lol.

As for a Parcel Map, you typically do not have interior monuments, unless there is a common driveway, and deferring the setting of monuments is needed. You do not need to make a statement in the Owner's Statement, as long as you send a letter to the City explaining the deferring to set monuments. Did you at least set the exterior monuments and send a letter to the City to satisfy Sect. 66497?

I have said for years that Sect. 66496 & 66497 are poorly written because they are not clear pertaining monuments for a Parcel Map compared to a Final Map.

Not sure about your current situation where you did not include the setting of monuments in your original contract? Why did you not address monumentation in the initial contract? Sounds to me you wanted to get the project, then add an additional charge for something that should have been identified from the beginning. Maybe that's why your client isn't happy, as your trying to add charges? That could bite you in small claims court.

Good Luck!

[sako]

Keith,
How could you add the cost of setting corners in the initial contract where you don't know how the property will be subdivided? (how many corners?)

[PLS7393]

Keith,
How could you add the cost of setting corners in the initial contract where you don't know how the property will be subdivided? (how many corners?)

The same way you prepare an estimate to know how many lots your potential client plans to create. Don't you get a rough sketch showing the intention of the property owner? I have never prepared an estimate not understanding the job I am taking, just saying. I don't charge by the number of corners set, rather an estimate of how long it will take, and that's why it is called an estimate (educated guess).

[sako]

An estimate could be changed any time, that's what makes the clients unhappy. It's noble from you accusing me of jacking up the price after the initial contract is signed.

[PLS7393]

An estimate could be changed any time, that's what makes the clients unhappy. It's noble from you accusing me of jacking up the price after the initial contract is signed.

It wasn't my intention, but I have been involved with clients where their initial surveyor added costs that were not identified, and gave them a negative feeling, as the mentioned it. My estimates are typically for a complete project, and very seldom have I had to add costs. If it takes me less time, my clients like the discount on the final invoice, even if I only reduce it $150+/-

As long as your contract identifies additional fee for setting monuments, I'm sure they will understand, and you have nothing to worry about.

[CBarrett]

Keith,
How could you add the cost of setting corners in the initial contract where you don't know how the property will be subdivided? (how many corners?)

You stipulate the assumptions in your contract. For example, an average parcel map may mean you need to set about 20 monuments, let's say 4 centerline monuments and 18 Iron pipes for parcel corners.

You put in your contract what you based your estimate on, that this is a not to exceed amount for the stipulated volume. If the volume is less, the client could be charged less, and you DEFINITELY stipulate that if the number of monuments exceeds your assumptions by 5%
(or 10% or whatever is financially reasonable for you) or more that additional fees will be needed, and additional costs estimate will be based on time and materials.

Writing a contract and explaining it to a client at the level the client is still confident is a skill, sometimes hard earned skill, unfortunately.

If your original contract included monumentation of the parcel map, and you got paid in full for that contract, you are very likely on the hook to set those monuments. It is your responsibility to ensure that the client understands what the quote is for and how to read it. Estimate from an expert carries some weight, in most cases clients don't expect that estimates will vary greatly at the time of payment.

[Jim Frame]

in most cases clients don't expect that estimates will vary greatly at the time of payment.

When I underestimate a project cost even though my assumptions were met, I bill for the estimated amount and chalk the difference up to yet another learning experience. But if my assumptions turn out to be significantly wrong, I contact the client ASAP to explain the situation and prepare him/her for a revised estimate. If the client objects at that point -- a situation I have yet to encounter -- we can invoke the termination clause and stop the damage before it gets any worse. In no event would I continue to rack up charges beyond the contract estimate and then present the client with an unexpectedly large bill. That would be unprofessional and just bad business.

[CBarrett]

in most cases clients don't expect that estimates will vary greatly at the time of payment.

When I underestimate a project cost even though my assumptions were met, I bill for the estimated amount and chalk the difference up to yet another learning experience. But if my assumptions turn out to be significantly wrong, I contact the client ASAP to explain the situation and prepare him/her for a revised estimate. If the client objects at that point -- a situation I have yet to encounter -- we can invoke the termination clause and stop the damage before it gets any worse. In no event would I continue to rack up charges beyond the contract estimate and then present the client with an unexpectedly large bill. That would be unprofessional and just bad business.

Precisely!!!!!!!!!
I am glad to hear that you use the termination clause. I have had discussions with local surveyors a fair amount and there is a good amount of pushback, people being uncomfortable approaching contracts in this manner.

Unfortunately, my current position working on massive projects with highly detailed contracts don't give me the opportunity to gain more experience on the level discussed here.

In the past when I did sole proprietor projects, It was always either a flat fee, or a not to exceed number. If I miscalculate it, I'd eat it, so you learn to be carful about how you estimate things.