Legal Question in Appeals and Writs in California

Re: i have been appealed and unsure

Unfortunately they get to have an attorney on their appeal. Fortunately it is still small claims court. Although you could hire an attorney -- it might be worth it to keep your $5,000 -- if you do go it alone, don't be intimidated as the informal rules of small claims court still apply.

I would start by demanding (moving) that the appeal be dismissed pursuant to Code of Civil Procedure Section 116.710(d) which says: "A defendant who did not appear at the hearing has no right to appeal the judgment, but may file a motion to vacate the judgment in accordance with Section 116.730 or 116.740 and also may appeal the denial of that motion."

The fact that the defendant's wife appeared does not excuse the failure of the defendant to appear, and if the defendant didn't appear, he had to file a "motion to vacate the judgment." instead of an "appeal."

In other words, you get up and say, "Your Honor, I move to dismiss the appeal pursuant to CCP Section 116.710, subsection D, because the defendant did not appear at the hearing, only his wife showed up, and the defendant therefore had no right to file this appeal. He had to file a motion to vacate the judgment and he didn't do that."

All this assumes that the failure of the defendant to himself appear is noted in the record of the case somewhere.

Maybe you can find a friendly lawyer in your area who can type this up as a written motion for you to present to the judge hearing the appeal, or the attorney can write a "trial brief" for you saying these things, for less cost than a personal appearance. But neither of these, while they would be helpful, are required.

You have nothing to lose by moving to dismiss the appeal; if you lose this motion, you would then go ahead and try to prove your case again.

The portions of the Code of Civil Procedure that govern procedure in small claims cases, and small claims appeals, can be looked up at www.leginfo.ca.gov .