CA - civil - question about superior court - how to proceed

[thisengineburns]

CALIFORNIA

1. I sued someone in small claims court.
2. They didnt show up and I won by default.
3. They filed a motion to vacate on the premise that they werent served.
4. They didnt show up to the hearing on the motion. Motion was denied.
5. They filed an appeal which goes to Superior Court.

Once we have a hearing date, am I able to appear for an Ex Parte to deny the appeal?

 

[latigo]

There is nothing in the appellate process that is "ex parte". Not unless it would be for some form of interim temporary order.

You must have another term in mind, like perhaps appearing "pro se" at the time of the hearing, which you can certainly do.

Just curious, but what is the basis for the defendant's claim that he was not personally served with process? The trial court would have to have found some proof of service in the record or it wouldn't have entered the default.

 

[Zigner]

If you have a good case, why are you worried about having the default set aside? You'll just go back and present your evidence to win again.

 

[thisengineburns]

there is a proof of service filed with the court. it wasnt a registered process server.

defendant is claiming they were never served.

its a Real Estate case. I was the agent. Seller signed a contract to pay 5% commissions, after I presented an offer he instructed escrow to only pay 3%. He said if we didnt proceed, he would cancel the offer and listing and then sell on the side to the buyer. I decided it was better to collect the 3% and sue for the damages than to get $0 and go to court for the full amount.