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TexLaw
TexLaw, Attorney
Category: Legal
Satisfied Customers: 4021
Experience:  Lead trial/International commercial attorney licensed 11 yrs
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I was awarded a judgment in small claims court; however, the

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I was awarded a judgment in small claims court; however, the defendant is appealing on grounds that the judge alledgedly made a legal error by accepting a document from me while the case was under advisement. I wanted to know it the defendant has legal grounding? Thank you.
Submitted: 2 years ago.
Category: Legal
Expert:  TexLaw replied 2 years ago.
What state is the case in?
Customer: replied 2 years ago.

The state is California. I also wanted to add that the defendent did not object to the Judge asking me to provide a statement in regard to how long it takes for a burn/blister to occur. In addtion, the Judge's summary review did not speak to what I provided after the hearing. His judgment was based on information submitted in court, most telling the medical documents.

 

The defendant's attorney contacted me for a settlement (less than half of what I was awarded) I declined, and commuicated that the matter will be resolved in court. Defendents attorney communciated that he will mov forward with the appeals process based on the Judge's legar error of allowing me to submit a document while the case was under advisement.

 

 

 

Expert:  TexLaw replied 2 years ago.
An appeal from a California Small Claims Court is granted automatically, no matter the cause. This forces the case into the Superior Court where you will be required to try the case over again. Unfortunately, this also changes the rules, as in small claims court the rules of evidence and the rules of civil procedure generally do not apply, while in Superior court they do.

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.

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).

If you want to ask for attorney fees and/or lost earnings and transportation and lodging costs, be sure to speak up during the hearing. You may be asked to prove your actual loss, so you may need paperwork (receipts, bills) showing the charges.

The decision of the judge to accept a document from you to support your case after the court had taken the case under advisement is something that is within the judge's discretion to do. As that is the case, and as the other side is represented by an attorney, this could be a bad faith appeal.

If so, then you need to speak up at the hearing with the Superior Court and tell them that you think this was a bad faith appeal and that there was no other reason for it other than to attempt to force you to abandon your case.
Customer: replied 2 years ago.


Unfortunately, this also changes the rules, as in small claims court the rules of evidence and the rules of civil procedure generally do not apply, while in Superior court they do. (I do not understand this statement.)

I'm quite comfortable with representing myself; however, would it behoove me to hire an attorney. Is $150.00 the standard fee? Is it likely that this fee will be reimbursed by the court?

 

The decision of the judge to accept a document from you to support your case after the court had taken the case under advisement is something that is within the judge's discretion to do. As that is the case, and as the other side is represented by an attorney, this could be a bad faith appeal. (This was very helpful, as the attorney stated it was legal error on the Judge's behalf).

Expert:  TexLaw replied 2 years ago.
The civil rules of procedure and the rules of evidence put requirements on the types of documents you can provide as evidence. You will want to get an affidavit from your doctor which states that he/she treated you, that they think the injury was caused by whatever you are suing the defendant for, and that the amount they have charged you is fair and reasonable. The affidavit needs to be signed in front of a notary.

For any other documents you are using, you will need to be able to "authenticate" them. In other words, you will have to show that they are not fake documents. The easiest way to do this is to have the office from which the documents came from fill out a business records affidavit. You should be able to find a form on line for California. If the records are from your personal records, then you will need to offer testimony at the new trial to state where the records came from and that they are genuine and true copies.

Other than these issues, since you are representing yourself and since this is an appeal from the small claims court, the judge will help you along.

As far as hiring an attorney, you could call around and see if you could find someone to accept this low of a fee. However, standard attorneys fees in California are around at least $200.00 per hour. When you are looking for an attorney, you will want to avoid large law firms. Look for smaller firms if you want to go down the route of hiring someone. But don't be afraid to represent yourself.

As your case is a personal injury case, you are likely asserting your claim as a "negligence" claim. Therefore, you will need to prove (1) that the defendant had a duty to you (ie that whatever the defendant was doing which caused your injury was something that they had to take reasonable care in doing), (2) that the defendant breached this duty (you need to show what the defendant did wrong), (3) that the breach of duty caused your injury (you have to link the wrongdoing to the injury), and finally (4) you have legally recognizable damages (medical bills, lost wages, pain and suffering, disfigurement, future medical bills, etc).

You need to be very organized, so you should probably right out all the points that you want to establish and make sure to ask for each and every possible thing that you can be compensated for.

Please let me know if you need any further information and if not, good luck in court and I hope you win the appeal.
Customer: replied 2 years ago.

Thank you for the information. I have medical records from the ER, my personal Physician, and referrals to an ENT. All the records indicate that I received a burn for "hot food", a burn blister diagnosis, and treatment, including pain killers and a restrictive diet. Would I require further medical documentation.

 

More than likely, I will represent myself as I know my case best, XXXXX XXXXX supporting documentation.

 

I n regard to the establishment being negligent: they do not negate that I was at their business and consumed food, their contention is that I could have received the injury elsewhere. However, based on my timeline that I submitted to the court (very detailed of all the events leading up to court) the court found that met my burden of proof and that the business was liable. I plan to resubmit the same evidence at suprior court, and hope that justice prevails.

 

Do you have any other comments or suggestions?

 

Thank you!

Expert:  TexLaw replied 2 years ago.
You need to object to their assertion and argument that you could have gotten the injury elsewhere as "baseless and asserts facts not in evidence."

Also, you need to get affidavit supported copies of the medical bills from all the medical providers.

Good Luck,
ZDN
Customer: replied 2 years ago.

 

You have been very helpful. Thank you.

Expert:  TexLaw replied 2 years ago.
Please click "accept" so that I may be paid for my work. Thank you and good luck!
TexLaw, Attorney
Category: Legal
Satisfied Customers: 4021
Experience: Lead trial/International commercial attorney licensed 11 yrs
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