Legal Question in Civil Litigation in California

In California, I was a defendant in a small claims action. I lost and filed an appeal. Neither I nor the plaintiff/respondent were present in court for the appeal. The reason that I was not present for the appeal, although I called the court at 8:45am and explained that I would be late to court because I was waiting for the police to show up so that I could file a police report that involved the plaintiff/respondent�s attempt to tamper with a witness, and we had a Declaration from the witness. By the time the police showed up, and I called the court at 9:15am, I was informed that the appeal was dismissed by the judge and the case was sent back to the small claims court and original judgment stands.

I filed an SC-108, �Request to Cancel or Correct Judgment� in the Answer filed by the plaintiff/respondent she states that she had a conversation with the witness (that signed Declaration for me) and that the witness denied ever signing the Declaration and that the plaintiff/respondent believes that the documents I submitted were forged.

The judge denied my Request to Cancel or Correct Judgment�. I again spoke to the witness who denied stating that she ever told the plaintiff that she never signed a Declaration for me, she also stated that the plaintiff/respondent had tried on several occasion pressured the witness to sign a Declaration stating that the documents I had were forged, but she refused.

Again the witness signed another Declaration stating that the plaintiff/respondent tried to pressure her to deny signing any documents on my behalf and that she stood by her original Declaration signed on my behalf and stated that she was willing to testify in court.

What can motion can I file or how can I get this matter reopened?


Asked on 8/29/11, 6:22 pm

2 Answers from Attorneys
George Shers Law Offices of Georges H. Shers

You could file a motion to set aside the judgment based upon fraud on the court, but I believe it has to be extrinsic and not intrinsic fraud [I do not recall the confusing difference between the two but you can find it on the web]. I do not know that this would qualify. Unless the judge said to the contrary, there is no evidence that he/she based their decision on the hearsay plaintiff had in her declaration. Your major problem, though, is that it was entirely wrong for you not to show up on time for the appeal; you could have asked the judge for a continuance or to allow you to introduce the Declaration later. The Judge was right to dismiss the appeal. You do not tell us what significance the witness had, how attempted tampering with the witness mattered [she was either going to testify in court or you had already introduced her Declaration and the plaintiff could not dispute either unless the judge let it in to go to the credibility of the witness.

Unless you have some additional facts you l have not yet revealed, I think the judge was entirely correct and you should not have any legal right to win [although the judge might give you leeway because it is a small claim court judgment and the parties are not represented by counsel].

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Answered on 8/29/11, 7:32 pm
Anthony Roach Law Office of Anthony A. Roach

You should have shown up to the de novo hearing on the appeal with your witness, instead of waiting around and waiting for a police report which is inadmissible as evidence. You should have sought some legal advice first, not after the fact.

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Answered on 8/30/11, 7:54 am


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