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Ask Dimitry K., Esq. Your Own Question
Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Landlord-Tenant
Satisfied Customers: 41221
Experience:  Licensed in multiple jurisdictions. Experienced Landlord-Tenant attorney.
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I failed to respond to the ud got a default judgment, then

Customer Question

I failed to respond to the ud got a default judgment, then I got a stay but was unable to pay the requested amount so my husband filed a right to possession which was denied. Can he appeal it? If so, how?
Submitted: 1 year ago.
Category: Landlord-Tenant
Expert:  Dimitry K., Esq. replied 1 year ago.
Thank you for your question. Please permit me to assist you with your concerns.
If I may ask, how long ago was his filing denied? I ask because an appeal is time sensitive and I wish to see if you still have the ability to pursue this, thank you!
Customer: replied 1 year ago.
It was denied on Monday the first.
Customer: replied 1 year ago.
I contest the eviction because the landlord terminated our verbal arrangement upon learning of the delay in my public assistance. I was also locked out during the process. Is there any way to get justice and not have an eviction on record?
Expert:  Dimitry K., Esq. replied 1 year ago.
Thank you for your follow-up.
California Code of Civil Procedure 1176 governs the process of an appeal:
1176. (a) An appeal taken by the defendant shall not automatically
stay proceedings upon the judgment. Petition for stay of the judgment
pending appeal shall first be directed to the judge before whom it
was rendered. Stay of judgment shall be granted when the court finds
that the moving party will suffer extreme hardship in the absence of
a stay and that the nonmoving party will not be irreparably injured
by its issuance. If the stay is denied by the trial court, the
defendant may forthwith file a petition for an extraordinary writ
with the appropriate appeals court. If the trial or appellate court
stays enforcement of the judgment, the court may condition the stay
on whatever conditions the court deems just, but in any case it shall
order the payment of the reasonable monthly rental value to the
court monthly in advance as rent would otherwise become due as a
condition of issuing the stay of enforcement. As used in this
subdivision, "reasonable rental value" means the contract rent unless
the rental value has been modified by the trial court in which case
that modified rental value shall be used.
(b) A new cause of action on the same agreement for the rental of
real property shall not be barred because of an appeal by any party.
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Under California Code of Civil Procedure 473(b), you have a reasonable time to file, not to exceed 6 months, but because you generally have to be out within 5 days, filing this appeal is critical as soon as possible. here is the code below:
473. (a) (1) The court may, in furtherance of justice, and on any
terms as may be proper, allow a party to amend any pleading or
proceeding by adding or striking out the name of any party, or by
correcting a mistake in the name of a party, or a mistake in any
other respect; and may, upon like terms, enlarge the time for answer
or demurrer. The court may likewise, in its discretion, after notice
to the adverse party, allow, upon any terms as may be just, an
amendment to any pleading or proceeding in other particulars; and may
upon like terms allow an answer to be made after the time limited by
this code.
(2) When it appears to the satisfaction of the court that the
amendment renders it necessary, the court may postpone the trial, and
may, when the postponement will by the amendment be rendered
necessary, require, as a condition to the amendment, the payment to
the adverse party of any costs as may be just.
(b) The court may, upon any terms as may be just, relieve a party
or his or her legal representative from a judgment, dismissal, order,
or other proceeding taken against him or her through his or her
mistake, inadvertence, surprise, or excusable neglect. Application
for this relief shall be accompanied by a copy of the answer or other
pleading proposed to be filed therein, otherwise the application
shall not be granted, and shall be made within a reasonable time, in
no case exceeding six months, after the judgment, dismissal, order,
or proceeding was taken. However, in the case of a judgment,
dismissal, order, or other proceeding determining the ownership or
right to possession of real or personal property, without extending
the six-month period, when a notice in writing is personally served
within the State of California both upon the party against whom the
judgment, dismissal, order, or other proceeding has been taken, and
upon his or her attorney of record, if any, notifying that party and
his or her attorney of record, if any, that the order, judgment,
dismissal, or other proceeding was taken against him or her and that
any rights the party has to apply for relief under the provisions of
Section 473 of the Code of Civil Procedure shall expire 90 days after
service of the notice, then the application shall be made within 90
days after service of the notice upon the defaulting party or his or
her attorney of record, if any, whichever service shall be later. No
affidavit or declaration of merits shall be required of the moving
party. Notwithstanding any other requirements of this section, the
court shall, whenever an application for relief is made no more than
six months after entry of judgment, is in proper form, and is
accompanied by an attorney's sworn affidavit attesting to his or her
mistake, inadvertence, surprise, or neglect, vacate any (1) resulting
default entered by the clerk against his or her client, and which
will result in entry of a default judgment, or (2) resulting default
judgment or dismissal entered against his or her client, unless the
court finds that the default or dismissal was not in fact caused by
the attorney's mistake, inadvertence, surprise, or neglect. The court
shall, whenever relief is granted based on an attorney's affidavit
of fault, direct the attorney to pay reasonable compensatory legal
fees and costs to opposing counsel or parties. However, this section
shall not lengthen the time within which an action shall be brought
to trial pursuant to Section 583.310.
(c) (1) Whenever the court grants relief from a default, default
judgment, or dismissal based on any of the provisions of this
section, the court may do any of the following:
(A) Impose a penalty of no greater than one thousand dollars
($1,000) upon an offending attorney or party.
(B) Direct that an offending attorney pay an amount no greater
than one thousand dollars ($1,000) to the State Bar Client Security
Fund.
(C) Grant other relief as is appropriate.
(2) However, where the court grants relief from a default or
default judgment pursuant to this section based upon the affidavit of
the defaulting party's attorney attesting to the attorney's mistake,
inadvertence, surprise, or neglect, the relief shall not be made
conditional upon the attorney's payment of compensatory legal fees or
costs or monetary penalties imposed by the court or upon compliance
with other sanctions ordered by the court.
(d) The court may, upon motion of the injured party, or its own
motion, correct clerical mistakes in its judgment or orders as
entered, so as to conform to the judgment or order directed, and may,
on motion of either party after notice to the other party, set aside
any void judgment or order.
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Contact your local county law library for a template for a landlord-tenant appeal, structure yours the same way, and file it as quickly as possible.
Sincerely,
Dimitry, Esq.