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Roger
Roger, Attorney
Category: Business Law
Satisfied Customers: 31562
Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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I won small claims court for $3200. The defendant filed for

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I won small claims court for $3200. The defendant filed for appeal trial de novo. I understand that the trial is now in los angeles superior court. Can I subpoena witnesses?


 


Also, can I ask for punitive damages? It is my understanding they owe money to various individuals they contracted for the project (documentary film in italy).


 


Finally, I understand I can be awarded additional $1000 in attorney's fees and $1000 in expenses if I prove the appeal was done in bad faith in order to delay payment (http://www.courts.ca.gov/1072.htm). How do I approve it was done in bad faith?


Kirk Adams :

Hi - my name is XXXXX XXXXX I'm a Business litigation attorney. Thanks for your question.

Customer:

Hi Kirk

Kirk Adams :

A trial de novo means that you will have another trial, and you will have to present your case all over again.

Kirk Adams :

Thus, you must bring/subpoena witnesses to appear, etc. in order to put on your case.

Kirk Adams :

As for asking for punitive damages, the only way to do that is by filing a motion to amend your complaint to ask for additional damagesover and above what you had asked for initially.

Kirk Adams :

If you don't amend your complaint/pleadings, then the court will hear the case based on the same pleadings from small claims court. However, all of the evidence and testimony must be re-presented to the new court.

Customer:

I see, well i didnt ask for punitive damages originally since it was small claims. If i dont amend the complaint, can i ask the judge directly to apply any punitive damages then?

Kirk Adams :

The judge will not have authority to award punitive damages IF you didn't ask for them in the complaint.

Customer:

ok

Kirk Adams :

Punitive damages are VERY difficult to get, so even if you were to amend your complaint, getting an instruction on punitive damages would be really difficult.

Kirk Adams :

As for the attorney fees of up to $1,000 and $1000 in actual losses, you would have to prove that the appeal was frivilous, that there is no justifiable basis for an appeal and that hte action was done merely to delay and harass you.

Kirk Adams :

There's no specific guidelines on proving this, but IF the defendant/appellant comes into court with the same arguments made at the first trial and has no new argument or angle, then you could claim that the party acted in bad faith.

Kirk Adams :

Then, it would be up to the judge to decide whether or not there was any merit to the appeal. This is very discretionary to the judge. But, you certainly should ask for these damages on top of your original award - - the worst that can happen is the judge saying no.

Customer:

i see. so if they appear with additional witnesses or materials then it is not bad faith? the case was pretty simple, they sent email saying how much i would be paid for the work, i only received half the payment.

Kirk Adams :

That's right. If there's new evidence, testimony, etc., then they could likely justify the appeal to put on a more complete case.

Customer:

but they could have got more witnesses for the original trial. thats not fair. so defendant can show up with nothing at small claims, lose the trial, then easily appeal the decision

Customer:

this way they gain at least 3 more months

Kirk Adams :

You're right, it's not fair. BUT the law allows for a trial de novo on an appeal, so they do get a re-do. The appeal literally treats the first trial and award as if it never happened.

Customer:

well, one of the defendants didnt show up at the first trial without notifying the court. If it is a new trial then she can show up and not be penalized for not showing up at the original trial?

Kirk Adams :

If the defendant appealed the judgment, probably yes.

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