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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Business Law
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Experience:  Run my own successful business/contract law practice.
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I won a small claims for breach of contract, where a business

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I won a small claims for breach of contract, where a business that contracted me for work didn't pay me full amount. The defendant filed an appeal and I just just got a letter in the mail for notice of small claims appeal trial de novo. Do I have to go to the appeal trial or can an attorney go on my behalf? If I win again how much can I ask for attorney's fees?

Also, are there attorneys that will take my case and agree to get paid only if we win? The reason I ask is because I will be traveling the dates of the new trial and the defendant only owes me $3000.
Submitted: 1 year ago.
Category: Business Law
Expert:  Dimitry K., Esq. replied 1 year ago.

Thank you for your question. Please permit me to assist you with your concerns.

To answer directly, while you do not have to appear, it would be most wise of you to do so. A "trial de novo" is a request for a brand new trial, with all past rulings against the parties ignored and treated as if they do not exist. As for small claims, generally small claims does not grant attorney fees, they only grant direct damages and not additional expenses. If you retain counsel it will be out of pocket. Furthermore, it is highly unlikely that any attorney would choose to pursue this on contingency as the amount is so small. Typical contingency fees are 40% so here it really would not make sense to retain counsel. If you are going to be traveling consider seeking a formal continuance and a request to reschedule the hearing for when you are able to formally appeal.

Good luck.

Customer: replied 1 year ago.

I do not understand, the trial de novo is again a small claims trial?


 


I understand that contingency is too low that is why I was asking about attorney's fees, can't I pay the lawyer with the awarded attorney's fees?

Expert:  Dimitry K., Esq. replied 1 year ago.

Simon,

Thank you for your follow-up. A 'de novo' trial means that it is a 'new' trial. That is what 'de novo' means, it is a trial request to have a brand new hearing which would igore all past hearings. Here is a formal legal definition for your review:

http://legal-dictionary.thefreedictionary.com/trial+de+novo

As for paying attorneys with attorney fees, small claims court does not permit you to sue or seek attorney fees as part of your award. Only higher courts permit you to do that, not small claims. As there won't be attorney fees, you would have to pay the attorney directly out of pocket.

Good luck.

Customer: replied 1 year ago.

http://www.courts.ca.gov/1072.htm


 


A small claims appeal is a "trial de novo" or "new trial." This means that the case is decided by a new judge from the beginning so you have to present your case all over again. Because this case is in the civil division of the superior court (and NOT in small claims court), you (and the other side) are allowed to bring a lawyer to represent you in the new trial.

Customer: replied 1 year ago.

State of california shows that the new trial is not small claims.

Expert:  Dimitry K., Esq. replied 1 year ago.

Simon,

Kindly do not rate my answer as 'bad' when we are discussing what is really apples and oranges. I never said that you cannot have an attorney representing you in small claims. That is your right and your ability. But you cannot sue for attorney fees in small claims court, you can only seek direct damages. If you retain counsel it will be out of your own pocket, and the other party cannot be sued to reimburse you for that expense.

Second, you are the one who stated that you are being exposed to a trial de novo in small claims. A trial de novo is a new trial that is held where all past decisions are ignored by the present court. Since it is now being held at a higher court, in a higher court you can then seek attorney fees in your counter-claim. You stated in your initial question that this is going to be held at small claims, and I based my answer to you accordingly.

Good luck.

Customer: replied 1 year ago.

I am sorry but you keep saying the same thing. The website I referenced clearly states that the new trial is not small claims, yet on your answer you state how small claims does not provide attorney's fees.


 


The state website provides more information:


 


Either side can have an attorney represent him or her at the appeal. If you decide to hire a lawyer for the appeal, it is possible that the judge may award you $150 in attorney fees and up to $150 for your actual loss of earnings, expenses of transportation, and lodging incurred in connection with the appeal.


 


In addition it says:


 


Also, if you or your lawyer (if you have one) can prove that the other side filed an appeal in bad faith with the intent to harass or delay you or to encourage to you drop your claim, it is possible that the judge may award reasonable and actual attorney fees of up to $1,000 and $1000 in actual losses in earnings or transportation/lodging expenses that you incurred due to the appeal (and that are reasonable costs).


Expert:  Dimitry K., Esq. replied 1 year ago.

Simon,

Thank you for your follow-up.

I apologize if I sound like a broken record but some courts after an appeal is heard at a higher court, send the case back down to a lower court, specifically small claims, where none of these options are available. What you are describing is no longer an appeal to small claims, it is an appeal from small claims to a higher court. In a higher court you can seek attorney fees and you can sue in addition for bad faith and frivolous appeals. We have miscommunicated and I am sorry for that. Based on how you posted your response I read it as the courts compelling small claims to re-hear this case, which is not the case.

For small claims generally the first step for an appeal is to main courts, then up to the appellate level. You are now entering the main courts, where attorney fees are possible. I still stand by my answer that I doubt that you could get an attorney to represent you on contingency and I also doubt most attorneys would agree to represent for future fees. Most likely they will demand fees from you up-front, and then seek reimbursement when the other party finally ends up paying if there are any assets out there to collect from.

Good luck.

Dimitry K., Esq., Attorney
Category: Business Law
Satisfied Customers: 36987
Experience: Run my own successful business/contract law practice.
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