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LawTalk, Attorney
Category: Legal
Satisfied Customers: 37855
Experience:  I am a practicing attorney with more than 3 decades of experience in the legal field.
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Small claims case. Defendant filed counterclaim. At trial

Customer Question

Small claims case. Defendant filed counterclaim. At trial judgment in favor of defendant on plaintiffs claim. Also judgment in favor of defendant on counterclaim. Plaintiff has appealed requesting trial de novo on all issues. Question: Can the defendant now (before appeal trial) just dismiss his counterclaim and would that then have the effect of rendering the appeal moot since the plaintiff could not have appealed the adverse judgment against him on his claim if there was no counterclaim? Defendant does not care about re-winning counterclaim -- just wants case over and not have to re-try plaintiff's original claim
JA: Because laws vary from place to place, can you tell me what state this is in?
Customer: California
JA: Has anything been filed or reported?
Customer: Filings: Original small claims claim, counterclaim, notice of appeal by plaintiff, notice of hearing date for appeal trial de novo
JA: Anything else you want the lawyer to know before I connect you?
Customer: no - just need to know if defendant files dismissal of counterclaim does that dispose of plaintiff's appeal so that judgment denying plaintiff's claim remains in effect and no need to appear at trial hearing
Submitted: 2 months ago.
Category: Legal
Expert:  LawTalk replied 2 months ago.

Good afternoon,

I'm Doug, and I'm very sorry to hear of your situation. My goal is to provide you with excellent service today. I have been a CA licensed attorney for more than 3 decades.

It is not possible to dismiss a judgment that has already been entered. So that way of dealing with the situation is not going to work for you.

However, under CA law, a small claims party can only appeal a claim/counterclaim made by the other party.

In the case you mention, Plaintiff can only appeal on the counterclaim you filed, not on Plaintiff's original claim that he/she lost.

So, if you as the defendant don't want to deal with it anymore, then just ignore the appeal process. The worst that can happen is that when you don't appear at the appeal hearing, that the judge can rule against you on the counterclaim that you filed---meaning the judgment on your counterclaim would be reversed.

You may reply to me again if you have additional questions, and I will be happy to continue to assist you.

I am not an employee of this site and I am only paid for helping you when you rate my service to you. Please remember to rate my service to you by clicking on the rating stars on your screen (preferably 5-Stars) so that I can be compensated for helping you. Thank you in advance.

I wish you and yours well in 2017,


Customer: replied 2 months ago.
I do not agree that plaintiff can only appeal counterclaim and not his lost original claim. It is my understanding that under california law if a counterclaim is appealed the trial de novo is on all issues presented in the orig claim and the counterclaim and therefore plaintiff can re-litigate his original claim in that appeal trial. If you disagree, please site me some law or authority that says plaintiff is precluded from re-opening his original claim at the appeal hearing and that the judge can only consider the counterclaim issues.
Expert:  LawTalk replied 2 months ago.

Good afternoon,

My mistake. You are correct. On the Trial e Novo the entire case is reheard.

But again, it is not possible to dismiss your counterclaim once the judgment has been entered. And while you do not have to prosecute your counterclaim on the appeal, at this point you have no way to prevent the Plaintiff from a second crack at their claim.


Customer: replied 2 months ago.
Glad I didn't rely on your original answer by telling the defendant to not appear at the appeal trial. Can't say it was worth the money to get a wrong answer and then have to educate you on the law. I think I deserve a refund [or cancellation of any charge to my credit card].
Expert:  LawTalk replied 2 months ago.

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