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Trial de novo

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ginalmann

Junior Member
What is the name of your state (only U.S. law)? California

We are the plaintiff's in a case with our landlord who did not return our security deposit or provide reconciliation. Long story short.

Defendant did not show to first trial in small claims and judgment was awarded to us. Defendant files a motion to vacate due to improper service. Small Claims court denied his motion. At this point the Plaintiff filed for Trial de novo and it moved to Civil court.

The judge did not mention or make a ruling on the "motion to vacate due to improper service" He went directly into hearing the case and we lost. My question is: wasn't the judge suppose to make a ruling on the motion to vacate before he decides to hear the entire case new. The case was never tried in small claims court to begin with because the defendant did not show and then drags out with appeals.

AND....as a Plaintiff do we have any recourse due to his neglect to rule on the Motion to Vacate ??
 
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BL

Senior Member
What is the name of your state (only U.S. law)? California

We are the plaintiff's in a case with our landlord who did not return our security deposit or provide reconciliation. Long story short.

Defendant did not show to first trial in small claims and judgment was awarded to us. Defendant files a motion to vacate due to improper service. Small Claims court denied his motion. At this point the Plaintiff filed for Trial de novo and it moved to Civil court.

The judge did not mention or make a ruling on the "motion to vacate due to improper service" He went directly into hearing the case and we lost. My question is: wasn't the judge suppose to make a ruling on the motion to vacate before he decides to hear the entire case new. The case was never tried in small claims court to begin with because the defendant did not show and then drags out with appeals.What is the name of your state (only U.S. law)?
Read Appeals.

http://www.courts.ca.gov/1016.htm[/U]]California Courts - Appeals

Why didn't you bring this up ?
 
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You posted that the court did rule on the motion to vacate.

Looks like you had a new trial & did not show the court that he owed you any money.

Now what? I think that will be all for you...you are not going to appeal correct?
 

ginalmann

Junior Member
We lost in trial de novo because the landlord asked my husband to oversee some workers on his renovation while he was out of town. He stupidly agrees and then the defendant claims that he received the property back in the condition of the demo process. Why the judge combined the two issues of deposit (which we left the house after 4 years in excellent condition) and the construction issue I don't understand. The judge cited the working without a contractors license over the amount of $400 law.

We didn't bring up the appealed motion to vacate because we do not have experiance in law to know better. Pretty much the landlord lied and we followed and answered the judges questions as he asked us to let him lead the proceedings with his questions. In hindsight, I wish I would have brought a lot of things up.

So my understanding is that he was able to get a NEW trial even though he didnt show up to the first one and his appeal was denied in small claims. I thought his appeal in civil was to overturn the small claims decision on the motion to vacate due to improper service. I guess not then?



I don't want to appeal....but I am so shocked how manipulated we were by the landlord who obviously knew exactly what he was doing. Shame on us for falling for it.

Thanks for the link.
 
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Zigner

Senior Member, Non-Attorney
We lost in trial de novo because the landlord asked my husband to oversee some workers on his renovation while he was out of town. He stupidly agrees and then the defendant claims that he received the property back in the condition of the demo process. Why the judge combined the two issues of deposit (which we left the house after 4 years in excellent condition) and the construction issue I don't understand. The judge cited the working without a contractors license over the amount of $400 law.

We didn't bring up the appealed motion to vacate because we do not have experiance in law to know better. Pretty much the landlord lied and we followed and answered the judges questions as he asked us to let him lead the proceedings with his questions. In hindsight, I wish I would have brought a lot of things up.

So my understanding is that he was able to get a NEW trial even though he didnt show up to the first one and his appeal was denied in small claims. I thought his appeal in civil was to overturn the small claims decision on the motion to vacate due to improper service. I guess not then?



I don't want to appeal....but I am so shocked how manipulated we were by the landlord who obviously knew exactly what he was doing. Shame on us for falling for it.

Thanks for the link.
When a defendant loses in small claims court, they have the right to request a trial de novo. That is, a NEW trial in civil court. It's as if the first trial never happened. Since it's as if the first trial never happened, then any request the vacate the original judgment is moot.
 

BL

Senior Member
When a defendant loses in small claims court, they have the right to request a trial de novo. That is, a NEW trial in civil court. It's as if the first trial never happened. Since it's as if the first trial never happened, then any request the vacate the original judgment is moot.
As was posted.

California Courts - Appeals

IMPORTANT! This is different from an appeal of a motion to vacate. If the defendant did not show up at the original trial, he or she has no right to ask for a new trial. Instead, the defendant can only file a motion to vacate the judgment. If the judge denies that motion, then the defendant can appeal the judge's denial of the motion to vacate.
The denial motion was never heard on appeal,or at least that's what the poster is saying .

That's why I asked why the issue wasn't brought up.

The Judge most likely treated it as if the defendant had a right to a trial de novo .

If this party didn't bring it up in court , it's most likely too late .

One can always send the Judge or Judges secretary a letter or motion to reconsider and show the the motion to vacate in the first place was denied .It can't hurt.
 

Zigner

Senior Member, Non-Attorney
The Judge most likely treated it as if the defendant had a right to a trial de novo .
I disagree. (Your information is right, but your conclusion here is what I disagree with.)
The OP stated that the D requested the judgment be vacated. That was denied, then the D requested a trial de novo. That's exactly how it's supposed to work (based on what you posted BL)
 

ginalmann

Junior Member
We are in Ventura County, not San Diego but here is a link explaining trial de novo process. This is why I thought that the judge was in error not to rule on the small claims ruling that denied his motion to vacate before he reheard the trial.

After the Small Claims Trial
 

BL

Senior Member
I disagree. (Your information is right, but your conclusion here is what I disagree with.)
The OP stated that the D requested the judgment be vacated. That was denied, then the D requested a trial de novo. That's exactly how it's supposed to work (based on what you posted BL)
I'm reading this .

the defendant can appeal the judge's denial of the motion to vacate.
Not that the D can appeal it all, just the motion.
 

Zigner

Senior Member, Non-Attorney
My earlier posts were not quite correct.

The D can appeal the denial of a motion to vacate. A new *small claims trial* can be ordered if the appeal is successful.
 

Zigner

Senior Member, Non-Attorney
We are in Ventura County, not San Diego but here is a link explaining trial de novo process. This is why I thought that the judge was in error not to rule on the small claims ruling that denied his motion to vacate before he reheard the trial.

After the Small Claims Trial
Actually, the judge can choose to rehear the entire case at the appeal hearing if the appeal is successful.
 

ginalmann

Junior Member
Zigner-

Are you saying I have a plausible reason to appeal the Trial de Novo decision since the judge was suppose to rule on the defendants motion to vacate before the trial could be heard? It was never heard to begin with in small claims court.
 

Zigner

Senior Member, Non-Attorney
Zigner-

Are you saying I have a plausible reason to appeal the Trial de Novo decision since the judge was suppose to rule on the defendants motion to vacate before the trial could be heard? It was never heard to begin with in small claims court.
I would suggest that you were totally unprepared and the ruling was probably made in such a rapid manner that you didn't even realize it had happened.

My suggestion is that, if this is worth enough to you, you should take all of your information to a local attorney for review.
 

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