Legal Question in Civil Litigation in California

I sued the defendant in the small claims court. She did not show up for the trail and a judgment was given in my favor.

The defendant filed a motion to have the judgment vacated after the 30 days appeal period has expired.

The judge denied the motion since it was not filed in a timely manner. The defendant has now filed an appeal to transfer the case to the superior court. A hearing is set for next month.

Here are my questions:

I had asked the small claims court to correct a mistake on the costs I had incurred after the judgment was entered. The judge acknowledged this and said that it will be done. It is not done yet. Who will correct the mistake now that the case has been transferred to the superior court?

Now that the case has been transferred to the superior court, can the defendant or I bring an attorney? If yes, whoever prevails, is the other party required to pay the attorney fees?

Is there any response that I need to file against the defendant now that the case has been transferred to the superior court?

Thank you for clarification.


Asked on 3/20/13, 5:33 am

1 Answer from Attorneys
Charles Perry Law Offices of Charles R. Perry

The error in your costs is likely "on hold," pending the resolution of the appeal. After all, a decision against you on the appeal would eliminate your right to recover costs.

You should verify that the defendant has filed a timely appeal. It is not at clear clear that the defendant has done so.

Both parties have a right to an attorney on the appeal -- which is really a trial de novo if it is an appeal of the underlying judgment.

A prevailing party's right to attorney's fees is not automatic. The controlling law is found in Sections 116.780 and 116.790 of the California Code of Civil Procedure. In addition, the prevailing party may recover attorney's fees if this is a contract dispute and the contract provides for this type of award.

I hope this helps. Best of luck to you.

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Answered on 3/20/13, 8:05 am


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