Appeal of denial of motion to vacate

[renterx2]

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!

 

[Nellibelle]

From what I understand, you have a new judge and a new hearing. If the new judge decides in your favor like the last judge did, the Defendant can appeal again. However, this appeal only allows the judge to look at how the previous judge arrived at his decision. If he finds that the previous judge did something judicially wrong, he can toss the decision out.

 

[quincy]

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.

It is generally preferred on this forum to keep all related questions in one thread. The background information can help the volunteers respond to the new questions better. That said, I provided in your landlord/tenant thread a direct link to your thread here and, here, for the benefit of others, is a direct link to your thread in the Landlord/Tenant section:

https://forum.freeadvice.com/landlord-tenant-issues-42/broke-lease-but-ll-re-rented-unit-airbnb-any-precedents-612011.html

 

[quincy]

Because your landlord did not show up at the first hearing, she could not appeal the judgment itself but she did have the right to file (and apparently did file) a motion to vacate the judgment. When a motion to vacate a judgment is denied in the small claims court, as your landlord's motion apparently was, then it is possible to appeal this denial to the superior court in the county where the action was heard.

IF the superior court determines that your landlord's motion to vacate should have been granted by the small claims court judge, the superior court can hear from both you and your landlord right then, without rescheduling a hearing (this if all are present that need to be present). The superior court can make a determination based on each of your claims. It is also possible for the superior court to send the matter back to small claims to be reheard.

Whether to subpoena the roommate is a decision you will have to make on your own. You should never have anyone testify unless you know in advance what they are going to say, however. You might want to discuss the testimony with an attorney in your area, this whether you decide to have an attorney in court with you or not. I think it can be smart to have an attorney when you know the other party will have one.

A judgment in the superior court is not appealable.

Here is a link to the law (I provided this link in your landlord/tenant thread, too) - you might be interested in 116.780 and 116.790:
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=00001-01000&file=116.710-116.798

 

[renterx2]

Apologies for the duplicated thread. Won't happen again!

Thanks for the info everyone provided. I have read the rules regarding appeals of denials of motions to vacate, but I'm still somewhat confused about one thing.

If the appeals court judge grants the motion to vacate by overturning the previous denial, and also chooses to hear the case right then and there in the appeals court rather than in small claims court, is the judgment of the appeals court considered final and non-appealable? Because if it gets sent back to small claims court and the judge still decides in my favor, then I know the landlord has the right to appeal *the judgment* this time, which means that, if it gets sent back to small claims court, the landlord would get two chances to have the case heard in front of two different judges. But if the case is heard right then and there in the appeals court, it seems like maybe the judgment would not be appealable? That's the part that is confusing to me.

Thanks for any clarification anyone can provide.

 

[quincy]

Apologies for the duplicated thread. Won't happen again!

Thanks for the info everyone provided. I have read the rules regarding appeals of denials of motions to vacate, but I'm still somewhat confused about one thing.

If the appeals court judge grants the motion to vacate by overturning the previous denial, and also chooses to hear the case right then and there in the appeals court rather than in small claims court, is the judgment of the appeals court considered final and non-appealable? Because if it gets sent back to small claims court and the judge still decides in my favor, then I know the landlord has the right to appeal *the judgment* this time, which means that, if it gets sent back to small claims court, the landlord would get two chances to have the case heard in front of two different judges. But if the case is heard right then and there in the appeals court, it seems like maybe the judgment would not be appealable? That's the part that is confusing to me.

Thanks for any clarification anyone can provide.

The appeals judgment is final. The landlord cannot keep appealing with the hope that a court decision will eventually favor him.

Perhaps the following link can be helpful with its explanation. It is from the Superior Court of California, County of Santa Clara:
http://www.scscourt.org/self_help/small_claims/after_judgment.shtml

And, if you are still a bit confused, you can always call an attorney in your area for clarification - and you might want to consider contacting an attorney anyway for assistance, if you are aware that the landlord will have an attorney.

Good luck.

 

[renterx2]

Update

Went to Appellate Court today for the appeal of the denial of motion to vacate. Was told up front that there was a Judge Pro Tem presiding. I did not know what that was, but the Clerk said this judge had 16 years of experience hearing "these types of cases" so I agreed to it, especially because they couldn't tell us when the rescheduled date would be and I had already taken even more time off work for this third appearance.

Judge enters and says to me (the plaintiff of the original case, respondent to the appeal), "So, tell me about your case." I was taken aback and asked whether he meant I should tell him about the case or about what occurred at the motion to vacate hearing. He is clearly confused and seems to think we are there because she appealed the decision rather than the denial. I have to explain that we are here because the landlord did not appear at the original hearing, then filed a motion to vacate, which was denied, and now she has appealed the denial of the motion to vacate. It obviously made me very uncomfortable that he did not seem to know why we were there or what the rules were that governed the case as it currently stood.

When we eventually cleared that up, he asked her to make her case and she did, and since her argument was that she was not served, and she clearly was, he said to her, "I understand your predicament, but you will have to take that up with [the person who was served via substitute service and who she alleges neglected to tell her about it] because according to the law, you were served and I have to deny this motion." The landlord then said, "But I didn't receive it [the summons], and if I had, I would have filed a counterclaim, etc. etc." so he then says, "Okay, I'm going to take the decision on the denial of the motion to vacate under submission, and hear the merits of the case now." So we did argue the case and then he said he was taking it under submission and we left without hearing anything about his decision on either the denial of motion to vacate or on the case itself.

Doesn't a judge have to make a decision on whether the denial of the motion to vacate was proper before he chooses to hear the case? Everything I've read seems to suggest that re-hearing the case is dependent upon overturning the denial of motion to vacate, which he did not do in the courtroom before having us argue the case itself.

And if hearing the case before making a decision on the denial of motion to vacate was improper, do I have any recourse?

 

[quincy]

... he said to her, "I understand your predicament, but you will have to take that up with [the person who was served via substitute service and who she alleges neglected to tell her about it] because according to the law, you were served and I have to deny this motion." ...

It sounds as if you did hear his decision. See what I have quoted above from your post.

You should be mailed the decision. Call the court if you don't receive anything in, say, 10 days or so.

 

[Just Blue]

Please update this thread to let us know what happened. Thanks and good luck!!

Blue

 

[renterx2]

Final update!

Just checked the website and the judge affirmed the original small claims judgment.

This is the part I like best: THIS JUDGMENT ON APPEAL IS FINAL.

Thank you all for your advice and support! I am so glad this is finally over!

 

[Zigner]

Just checked the website and the judge affirmed the original small claims judgment.

This is the part I like best: THIS JUDGMENT ON APPEAL IS FINAL.

Thank you all for your advice and support! I am so glad this is finally over!

Why do you feel it's over? You're just turning the page to a new chapter in which you likely are going to be stymied in your efforts to collect.

 

[quincy]

Just checked the website and the judge affirmed the original small claims judgment.

This is the part I like best: THIS JUDGMENT ON APPEAL IS FINAL.

Thank you all for your advice and support! I am so glad this is finally over!

That is good news, renterx2. It did sound from your last post that the appeals judge would be affirming the small claims judgment.

I agree with Zigner, though. You are now tasked with collecting on the judgment. I hope the landlord refunds your security deposit without you having to take any extreme measures to collect.

Thank you for the update.

 

[renterx2]

She's back...

Naive me -- I thought it was over, but I was mistaken.

Back story (documented in this thread):

In December 2014, I broke a three-month lease one month early. The landlord re-rented the apartment on Airbnb (starting two days prior to the end of the month I fully paid for!) for two short periods (9 days in total) and she admitted in court (and in emails to me) that she took the unit off the market entirely for an additional 15 days during January because she claims she was out of town and therefore she could not manage the rentals during that period (even though this was in San Francisco where there is an entire cottage industry of companies whose sole purpose is managing AirBnb rentals on behalf of absent landlords). She later told me that she intended to charge me for the difference between the 30 days of rent in January she claimed I still owed and the 9 days of rent she claims she received via AirBnb, and she was therefore retaining my security deposit as unpaid rent representing this difference (even though she did not communicate to that she intended to withhold my security deposit for this purpose within 21 days of the date I vacated the premises, as required by law).

Long story short, I took her to small claims court for return of my security deposit. She did not show up to the hearing. A default judgment in my favor was entered. She then filed a motion to vacate on the basis that she claimed she was not properly served (even though she was). The motion to vacate was denied. She then filed an appeal of the denial of the motion to vacate. The, too, was denied. At this point, the final judgement was entered stating that she owed me my security deposit back, but it took her another 4 months (until October 2015) to pay me.

Fast forward to today. She has just emailed me to tell me that she intends to sue me in small claims court over the full month of unpaid rent + another ~$1000 of costs that she has never before documented to me + the cherry on top - she's also claiming for 10% interest on this amount (!) which has apparently been accruing during the same period that I was having to take her to small claims court for return of my security deposit (and having to appear three times due to her initial non-appearance and subsequent motions and appeals)!

As far as I'm concerned, this case has already been argued and adjudicated, but she is claiming that's it's a different case because the original case was decided based on her lack of appearance at the first hearing, not based on the merits, and that it was about the return of the security deposit and not the breach of contract, so even though two judges have already denied her argument that she was not properly served, she believes she is entitled to a do-over. I should mention that during the final "appeal of the denial of the motion to vacate", the judge pro tem actually did hear the case itself (not just her arguments about why she thought she wasn't properly served), and he still denied the appeal.

At this point, I'm not responding to her threats (she is giving me 10 days to pay up or she claims she will file suit), but as I am a layman, and this landlord is a Yale-educated J.D., I am not only shaken but shocked that she believes that she can legitimately re-argue a case that was already decided.

During her appearances in court at the motion to vacate and the appeal of the denial of the motion to vacate, she told the judges that if she had been properly served, she would have counter-sued, and this feels very much like her attempt to counter-sue -- the only trouble is - it's a year later and the case has been decided - so am I wrong to assume that her chance to counter-sue has already passed?

Still in shock that I'm having to deal with this again. but very grateful for any advice.

 

[tranquility]

I think I agree with the landlord. While all of the issues related to the same transaction or occurrence should be joined in a single case, her issue clearly was not. I don't think res judicata would apply to her case as it was not heard in the default judgment against her.

See also:
http://law.justia.com/cases/federal/appellate-courts/F2/959/240/220249/ (This case is what you're trying to argue. But, there, the key was it was the "same cause of action", where here it is not.)

This one, while not able to be cited, explains the issue better:
http://www.courts.ca.gov/opinions/nonpub/D066165.PDF

 

[OHRoadwarrior]

Your defense is under CA law landlord had 21 days to mail you your deposit OR an itemized statement of damages. She failed to do so. I would ignore her until you are formally served, then file a motion for dismissal.