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Olivia, I don't mean to beat a dead horse. I understand that…

Hi Olivia, I don't mean...
Hi Olivia, I don't mean to beat a dead horse. I understand that the defendant has the option to withdraw the appeal. My question is this.... can the judge use his discretion and agree to hear my case (I am the Plaintive), or must he dismiss the appeal, which means that case is over? I want to be able to present my case at the Trial De Novo, as I am unhappy w the decision made in small claims. Also, the defendant has filed a case against me. He was somehow able to get the two hearings moved to Superior Court, though his case against me, was never heard in small claims. What could be the motive for his getting the two hearings moved to the same hearing? If it is up to the judge's discretion to hear my case, how do you suggest I ask him for the opportunity? Once the defendant filed the appeal, I spent money to hire an attorney. I was never notified by the court, that the appeal was withdrawn, so I spent money for the JD to appear in court, needlessly. Thanks, Carole
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Answered in 5 minutes by:
3/16/2018
Olivia Kent
Olivia Kent, Family Law Attorney
Category: Family Law
Satisfied Customers: 4,079
Experience: Partner at Kent Law Group, LLC
Verified

No worries - I'm happy to respond. The court that you're in has to have *something* to decide... so let's say the plaintiff and the defendant BOTH appeal and then the defendant goes and withdraws his appeal. Since both parties filed an appeal the court will still have jurisdiction since there's the defendant's appeal that is pending... but in the case where ONLY the defendant filed an appeal and then withdrew that appeal, there's nothing left for the court to decide. IF you want the court to hear your appeal you need to file an appeal. Does that make sense?

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I think you're inadvertently opening new questions and directing them to me... I can answer them all under the same thread so you don't have to pay for multiple questions...

A plaintiff can appeal a verdict just like a defendant can... ANY party can appeal a verdict by filing a notice of appeal.

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Customer reply replied 4 months ago
This is a small claims case and the website says that I can't appeal. I never filed any thing, because I learned that he had appealed. Since the rules of court say... the court "may", I wanted to know how that word is interpreted.I sued for 10K because my former tenant turned off my back sprinklers and killed 14 fruit trees, 1700 sq ft of lawn and 2 mature (> 50 yo Japanese Maple trees). If I lose, is there recourse? I think he turned off the water, once I raised his rent. Thanks,
Customer reply replied 4 months ago
In other words, can I sue him outside of small claims? I sold the house, after he moved, I have letters from an appraiser, my real estate agent, and the new buyer. All confirm that the house would've been listed higher, w landscaping in back. BTW.. the front yard looked nice, because the water was kept on. My gardener also wrote a statement to confirm that the tenant kept the water off.

So, I'm not following... you lost or he lost? And if you lost, why wouldn't you appeal? Parties can appeal a small claims court verdict. Are you saying you can't appeal b/c you won? I'm not following... apologies for all the questions but I want to make sure I give you a correct answer...

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Can you send me the website information....

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Customer reply replied 4 months ago
I am the Plaintive and I won a measly 1K judgment. The judge who decided based it on the drought and the lack of a lease. The defendant, my former tenant, appealed. I want to continue w the appeal, because I know w a different judge, and the evidence the way I have it organized in a notebook now, I can get more than the 1K.

But are you saying there is something in the rules in your specific small claims court stating you can't appeal??

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That's what I'm not understanding... why wouldn't you just appeal the verdict, stating that the court failed to take into account X,Y,Z or some other basis for appealing... I understand that the defendant appealed and then withdrew the appeal but I'm not understanding why you didn't appeal. What I CAN tell you is that if you don't appeal you lose the ability to argue that you're entitled to more than the court granted. That's the nature of appeals... they allow a litigant - plaintiff or defendant - to argue that they're entitled to something different.

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But, to answer your original question “may” means the court can do something. It doesn’t mean the court WILl or SHALL or MUST do something. It means the court has the discretion to do or not do something.

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Customer reply replied 4 months ago
a Plaintive cannot appeal. I had 30 days to make a request for the judge to reconsider, if I felt that there was a misapplication of the law. I was going to file something, as the judge thought I did not have a lease, and believed my tenant when he blamed the demise of the yard, on the drought. Ca drought policy did not advocate, not watering your trees. But in any any, because the tenant filed an appeal, before I had a chance to ask for the judge to reconsider his decision, I didn't do anything. The tenant filed an abandonment of appeal, the night before. I was never notified by the clerk. Do I have a valid argument, to ask the judge to hear the case, as a Trial De Novo, as initial requested by the tenant?
Customer reply replied 4 months ago
In Ca, the Plaintive cannot appeal.....

My apologies… I should have been clearer when I Used the word appeal. I should have included a motion for reconsideration in that. You can certainly try to ask the court for a De Novo trial in light of the fact that the defendant withdrew his appeal but I’m going to be perfectly honest with you… they are unlikely to grant it. Technically, since the defendant withdrew his appeal the court would not have jurisdiction to hear an appeal

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And since a motion for reconsideration wasn’t filed that court will no longer hear the case either.

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At least they aren’t under any obligation to.

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Customer reply replied 4 months ago
Ok, I'll try to explain that when I went to court to file for reconsideration, I learned that an appeal was already filed, and so I didn't file mine. All I can do is ask. Since I wasn't notified by the clerk about the abandonment of appeal, my JD traveled to court and it cost me 1K. Thanks,
Customer reply replied 4 months ago
If I am not successful in getting my case heard again, is there another way I can sue the tenant?

If you can figure out another cause of action to sue them for you would be able to sue them again.

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In other words, if they did something else wrong that you did not bring up in the small claims case.

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Customer reply replied 4 months ago
My dogs go into a fight and I intervened, and was bitten badly. Have to go to Urgent Care. I'd like to pursue the other option, but I'd better take care of this. I'm hurt, but I'm glad that the dog bit me, and let go of the one he was shaking up. Thanks, I'll follow up later.

My pleasure. Go take care of yourself! I’ll be here anytime you need additional help :-)

Olivia Kent
Olivia Kent, Family Law Attorney
Category: Family Law
Satisfied Customers: 4,079
Experience: Partner at Kent Law Group, LLC
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