What is the name of your state (only U.S. law)? CA
I posted in the Landlord/Tenant issues thread (https://forum.freeadvice.com/landlord-tenant-issues-42/broke-lease-but-ll-re-rented-unit-airbnb-any-precedents-612011.html), but since my latest question is about the defendant appealing a denial of a motion to vacate, I thought I would post here as well.
I sued my landlord to get my security deposit back. She was served by the Sheriff (via substituted service) + mailed copy. She did not show up to the first hearing. I was awarded the money. She then filed a motion to vacate, arguing that she was out of the country on the date of service and her roommate never told her about the summons. I questioned the dates of travel and it turns out she returned to the country two days prior to the date of service. The judge denied the motion. She has now appealed the denial. Not sure what she is going to say to change the new judge's mind, but I'm aware that there is no evidence that will be sent to the appeals judge so she has to argue her reason for missing the first trial all over again, and I expect that she will change her story since the last one didn't work. I will be there and my husband will be there (he was at the prior motion to vacate hearing as well, so he can testify as to what she said in the previous hearing if she does try to change her story). Ultimately, though, I would assume it will end up being a he said/she said thing...
Another question - the landlord's entire story rested on the claim that the roommate not only never mentioned once that a sheriff came to the door and served her with a summons, but she then proceeded to throw the summons into a pile of junk mail that said landlord neglected to go through for at least six weeks between the date of service and the date of the hearing. Should I subpoena the roommate? I don't think she will be happy about having to admit to this under oath for the landlord, but I also assume that she would lie for her, so she could continue to live there.
My main question, though, is whether it's worth having an attorney there since we are both entitled to one now that it is in an appeals court. My understanding is that if the judge grants the motion to vacate, we could have the new hearing right then and there OR it might be sent back to small claims court. If we have it then and there, can the attorneys (if we both have them) get involved? It seems unfair to allow the case to be heard in appellate court with an attorney when the alternative is to send it back to small claims court where I assume attorneys would not be allowed. Also, if the case *is* heard in the appellate court and she doesn't like the outcome, can she appeal yet again - appealing the judgment this time rather than the denial? I know she would be able to appeal the judgment if it went back to small claims court, but if the appellate court hears it, can she appeal the decision of the appellate court?
Any advice appreciated!
I posted in the Landlord/Tenant issues thread (https://forum.freeadvice.com/landlord-tenant-issues-42/broke-lease-but-ll-re-rented-unit-airbnb-any-precedents-612011.html), but since my latest question is about the defendant appealing a denial of a motion to vacate, I thought I would post here as well.
I sued my landlord to get my security deposit back. She was served by the Sheriff (via substituted service) + mailed copy. She did not show up to the first hearing. I was awarded the money. She then filed a motion to vacate, arguing that she was out of the country on the date of service and her roommate never told her about the summons. I questioned the dates of travel and it turns out she returned to the country two days prior to the date of service. The judge denied the motion. She has now appealed the denial. Not sure what she is going to say to change the new judge's mind, but I'm aware that there is no evidence that will be sent to the appeals judge so she has to argue her reason for missing the first trial all over again, and I expect that she will change her story since the last one didn't work. I will be there and my husband will be there (he was at the prior motion to vacate hearing as well, so he can testify as to what she said in the previous hearing if she does try to change her story). Ultimately, though, I would assume it will end up being a he said/she said thing...
Another question - the landlord's entire story rested on the claim that the roommate not only never mentioned once that a sheriff came to the door and served her with a summons, but she then proceeded to throw the summons into a pile of junk mail that said landlord neglected to go through for at least six weeks between the date of service and the date of the hearing. Should I subpoena the roommate? I don't think she will be happy about having to admit to this under oath for the landlord, but I also assume that she would lie for her, so she could continue to live there.
My main question, though, is whether it's worth having an attorney there since we are both entitled to one now that it is in an appeals court. My understanding is that if the judge grants the motion to vacate, we could have the new hearing right then and there OR it might be sent back to small claims court. If we have it then and there, can the attorneys (if we both have them) get involved? It seems unfair to allow the case to be heard in appellate court with an attorney when the alternative is to send it back to small claims court where I assume attorneys would not be allowed. Also, if the case *is* heard in the appellate court and she doesn't like the outcome, can she appeal yet again - appealing the judgment this time rather than the denial? I know she would be able to appeal the judgment if it went back to small claims court, but if the appellate court hears it, can she appeal the decision of the appellate court?
Any advice appreciated!