Legal Question in Appeals and Writs in California
Small Calims Appeal
I was the plaintiff in a small claims case and won. The defendant has now appealed. In California, this entirely new hearing will be heard by a superior court judge. I do not want to pay for the serving of subpoena�s on the five hostile witnesses again, plus all the documents plus pay an attorney to review all this case information and represent me at the new hearing, etc..; unless or until I'm sure the appellant is actually going to show up at their appeal. My understanding is that the judge will dismiss the appeal if they do not show up but I will not be awarded anything extra. Question: Can/should I just wait until the trial begins and THEN ask the judge for a continuance if the appellant is actually there? Can I just say I want a continuance in order to retain counsel? Is it to late to do that at the start of the small claims appeal hearing in superior court? I require a definite yes or no answer on this based on California's law, procedure or court rules. If it's randomly up to each judge to decide, than that means I can't risk doing it. Thank you.
5 Answers from Attorneys
Re: Small Calims Appeal
It is unlikely a Judge would grant a continuance; that would be very risky. It is up to the Judge, but I think the Judge would be unlikely to grant a continuance.
Re: Small Calims Appeal
The other responses are correct, in that gambling on a continuance is a sure way to lose.
But if you do incur costs for subpoenas, etc., you should ask the judge for an award against the defaulting appellant, as the code allows for certain costs, and sanctions under appropriate circumstances.
Re: Small Calims Appeal
It is completely within the judge's discretion to grant or deny the continuance. If the judge denies the continuance and you are not ready to proceed, the defendant might win the appeal. The only way to be safe is to prepare as if the defendant will show up.
Re: Small Calims Appeal
There will be NO continuances for any of the reasons you state. Prepare for trial and present your case. Hire an attorney if the case is worth it.
Re: Small Calims Appeal
The start of the scheduled trial is too late to ask for a continuance unless factors beyond your control have prevented you from preparing and from seeking a continuance more promptly.
It would be unfair to make a party and his witnesses miss work and come to court only to find out that they all need to come back again for the convenience of a party who could easily have spared them the hassle. And it would not be right to let a party with no intention of going through with the trial take up the court's time -- let alone that of potential jurors (if either side demands a jury trial).
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