Small Claims is appeal limited to subjects of original trial?

[mail777]

Is a Calif Small Claims (LA County) appeal limited to the items
litigated in the original trial?

As an example - if a landlord is appealing a decision on a tenant
action - when filing the appeal can he include NEW or other causes
of action against this same ex-tenant/person - outside of rental
law- such as say vehicle damage caused by tenant (that was not
discussed during original trial)?

Or does that need to be a new and separate action?

Would there be any advantage for the landlord to ignore the original
trial and do a 'catch all' appeal?

Thanks in advance.

[nos...@isp.com]

mail777 <mai...@yahoo.com> wrote:

> Is a Calif Small Claims (LA County) appeal limited to
> the items litigated in the original trial?

In a de novo appeal from a Calif. small claims court judgment, "[t]he
scope of the hearing shall include the claims of all . . . parties to
the small claims action at the time the notice of appeal was filed.
The hearing shall include the claim of a defendant that was heard in
the small claims court." Calif. Code of Civ. Proc. 116.770(d).

> As an example - if a landlord is appealing a [Calif. small claims
> court judgment] on a tenant action - when filing the appeal

> can he include NEW or other causes of action against this
> same ex-tenant/person - outside of rental law- such as say
> vehicle damage caused by tenant (that was not discussed during
> original trial)?

"The scope of the hearing shall include the claims of all . . .
parties to the small claims action at the time the notice of appeal
was filed. The hearing shall include the claim of a defendant that was
heard in the small claims court." Calif. Code of Civ. Proc.
116.770(d).

[Stuart A. Bronstein]

mail777 <mai...@yahoo.com> wrote:

> Is a Calif Small Claims (LA County) appeal limited to the items
> litigated in the original trial?
>
> As an example - if a landlord is appealing a decision on a
> tenant action - when filing the appeal can he include NEW or
> other causes of action against this same ex-tenant/person -
> outside of rental law- such as say vehicle damage caused by
> tenant (that was not discussed during original trial)?
>
> Or does that need to be a new and separate action?

Normally a second action wouldn't be allowed. Especially in small
claims you are required to sue for all the causes of action you
have against the same person at the same time.

If a small claims case is on appeal, the trial is conducted "de
novo," meaning it starts all over and everything is up for grabs.
A plaintiff wouldn't be able to simply walk into an appeal and
bring in new claims. He would have to give notice.

The way that is normally done is that the plaintiff asks the court
for permission to amend his complaint. If he's got a good reason
why he didn't sue for those items in the first place, the court
will normally give him permission. But the defendant will
definitely know about it before the trial.

I don't know that would be allowed in small claims - I don't see
why not. If it is, that' show it should work.

___
Stu
http://DownToEarthLawyer.com

[mail777]

The landlord was the defendant and is unhappy with the ruling on the
original small claims trial brought by the tenant.

1. The appeal would naturally include service of papers in some manner. I
gave the example of vehicle damage - ignored during the original trial -
because it was outside of rental law - and tenant did not want to make his
situation worse.

In the appeal - can the landlord (now plaintiff) bring up the question of
vehicle damage etc.?


2. Would there be any advantage for the landlord to ignore the original

trial and do a 'catch all' appeal?

Thanks for your reply.

[Stuart A. Bronstein]

mail777 <mai...@yahoo.com> wrote:
> nos...@isp.com wrote:
>> mail777 <mai...@yahoo.com> wrote:

>>> Is a Calif Small Claims (LA County) appeal limited to
>>> the items litigated in the original trial?

>> "The scope of the hearing shall include the claims of all . . .
>> parties to the small claims action at the time the notice of
>> appeal was filed. The hearing shall include the claim of a
>> defendant that was heard in the small claims court." Calif.
>> Code of Civ. Proc. 116.770(d).

> The landlord was the defendant and is unhappy with the ruling on
> the original small claims trial brought by the tenant.

Only a defendant can appeal a CA small claims judgment. But did he
bring a counter claim against you at the original trial? If so, he
can litigate the same issues as he did before. If not, the judge
may or may not let him bring them up as a way to reduce your
judgment against him, but he won't be allowed to get a judgment
against you.

> 1. The appeal would naturally include service of papers in some
> manner. I gave the example of vehicle damage - ignored during
> the original trial - because it was outside of rental law - and
> tenant did not want to make his situation worse.

If what he is bringing up is an element of the original claim, he
can bring it up on appeal even if the specific facts weren't
introduced into evidence at the original trial. That's what "de
novo" means - start over from the beginning..

But if he is making a new claim, (e.g. that you owe him for the
electric bill and he didn't sue for it before or deduct it from
your deposit) he shouldn't be able to bring that up.

> 2. Would there be any advantage for the landlord to ignore the
> original trial and do a 'catch all' appeal?

If he has his own claims, he should bring them as a counter claim.
He can't just wait for the appeal and then, without notice, make
any claim he wants.

___
Stu
http://DownToEarthLawyer.com

[mail777]

>mail777 <mai...@yahoo.com> wrote:
>> nos...@isp.com wrote:
>>> mail777 <mai...@yahoo.com> wrote:
>
>>>> Is a Calif Small Claims (LA County) appeal limited to
>>>> the items litigated in the original trial?
>
>>> "The scope of the hearing shall include the claims of all . . .
>>> parties to the small claims action at the time the notice of
>>> appeal was filed. The hearing shall include the claim of a
>>> defendant that was heard in the small claims court." Calif.
>>> Code of Civ. Proc. 116.770(d).
>
>> The landlord was the defendant and is unhappy with the ruling on
>> the original small claims trial brought by the tenant.
>
>Only a defendant can appeal a CA small claims judgment. But did he
>bring a counter claim against you at the original trial? If so, he
>can litigate the same issues as he did before. If not, the judge
>may or may not let him bring them up as a way to reduce your
>judgment against him,

" but he won't be allowed to get a judgment
against you. "

Why not? Is that not what novo means? He did not bring a counter claim
at the original trial.

>
>> 1. The appeal would naturally include service of papers in some
>> manner. I gave the example of vehicle damage - ignored during
>> the original trial - because it was outside of rental law - and
>> tenant did not want to make his situation worse.
>
>If what he is bringing up is an element of the original claim, he
>can bring it up on appeal even if the specific facts weren't
>introduced into evidence at the original trial. That's what "de
>novo" means - start over from the beginning..
>
>But if he is making a new claim, (e.g. that you owe him for the
>electric bill and he didn't sue for it before or deduct it from
>your deposit) he shouldn't be able to bring that up.
>
>> 2. Would there be any advantage for the landlord to ignore the
>> original trial and do a 'catch all' appeal?
>
>If he has his own claims, he should bring them as a counter claim.
>He can't just wait for the appeal and then, without notice, make
>any claim he wants.

Any appeal in CA would involve giving the other party notice including
paying a bunch of fees to the court - that notice in turn could then have
any new claims against this same party - or is that a definite no?

What about landlord introducing a claim during appeal that he had brought
up as some sort of example of bad faith by tenant (plaintiff) during
original trial?

[Barry Gold]

On 11/12/2012 12:54 PM, Stuart A. Bronstein wrote:
> If a small claims case is on appeal, the trial is conducted "de
> novo," meaning it starts all over and everything is up for grabs.
> A plaintiff wouldn't be able to simply walk into an appeal and
> bring in new claims. He would have to give notice.

One important problem with the above answer: In CA, only the _defendant_
can appeal a Small Claims decision. The plaintiff gives up his right to
be heard in normal ("Superior") court by choosing to file in Small
CLaims court.

When the defendant doesn't like the decision in a small claims case,
_he_ can go to Superior Court to have the case heard "de novo", but the
case will still be subject to many of the rules of Small Claims.

1. The Small Claims limit of $7,500 still applies.
2. The rules of evidence are relaxed. For example, you can just bring in
a receipt or other paperwork without going through complicated stuff to
establish its provenance and get it marked as "plaintiff's exhibit A" or
whatever. Hearsay may be allowed in some cases (e.g, the plaintiff can
testify to what the defendant told him or vice versa)
3. The de novo appeal is still tried by only a judge; a jury trial is
not an option in the de novo appeal.

However, lawyers _are_ allowed in the de novo appeal.

[Stuart A. Bronstein]

mail777 <mai...@yahoo.com> wrote:

>>Only a defendant can appeal a CA small claims judgment. But did
>>he bring a counter claim against you at the original trial?
>>If so, he can litigate the same issues as he did before. If
>>not, the judge may or may not let him bring them up as a way
>>to reduce your judgment against him,

> " but he won't be allowed to get a judgment
> against you. "
>
> Why not? Is that not what novo means? He did not bring a
> counter claim at the original trial.

He can only get a judgment against you if he sued you. Your suing
him doesn't count for his suing you. The normal situation is A
sues B and B sues back by filing a cross-claim. If he didn't do
that, he can't do it at the appeal.

He might request the court to allow him to file a cross-claim now,
and it would be up to the judge whether or not to let him. But
that would have to be before the trial/appeal.

>>> 2. Would there be any advantage for the landlord to ignore
>>> the original trial and do a 'catch all' appeal?

>>If he has his own claims, he should bring them as a counter
>>claim. He can't just wait for the appeal and then, without
>>notice, make any claim he wants.

> Any appeal in CA would involve giving the other party notice
> including paying a bunch of fees to the court - that notice in
> turn could then have any new claims against this same party - or
> is that a definite no?

If by "new claims" you mean things that weren't mentioned or even
referred to in the original complaint, that's a "no."

> What about landlord introducing a claim during appeal that he
> had brought up as some sort of example of bad faith by tenant
> (plaintiff) during original trial?

He can do that (if the court lets him - if he tries you should
object) by way of mitigation - in other words he can do that as a
way to reduce what he owes you. But unless he filed an affirmative
complaint against you, he can't get a judgment against you that
exceeds any judgment you get against him. At most he can get it
down to zero.

___
Stu
http://DownToEarthLawyer.com

[Stuart A. Bronstein]

Barry Gold <Barry...@ca.rr.com> wrote:
> Stuart A. Bronstein wrote:

>> If a small claims case is on appeal, the trial is conducted "de
>> novo," meaning it starts all over and everything is up for
>> grabs. A plaintiff wouldn't be able to simply walk into an
>> appeal and bring in new claims. He would have to give notice.
>
> One important problem with the above answer: In CA, only the
> _defendant_ can appeal a Small Claims decision. The plaintiff
> gives up his right to be heard in normal ("Superior") court by
> choosing to file in Small CLaims court.

Yes, absolutely right. Unless there is a cross-claim, in which
case both litigants are defendants, and any appeal involves all
claims on both sides.

In this case it wasn't clear to me whether or not there had been a
cross-claim.

> 1. The Small Claims limit of $7,500 still applies.

It's now up to $10,000 in most cases.

> 2. The rules of evidence are relaxed. For example, you can just
> bring in a receipt or other paperwork without going through
> complicated stuff to establish its provenance and get it marked
> as "plaintiff's exhibit A" or whatever. Hearsay may be allowed
> in some cases (e.g, the plaintiff can testify to what the
> defendant told him or vice versa) 3. The de novo appeal is still
> tried by only a judge; a jury trial is not an option in the de
> novo appeal.

Small claims trials are often conducted by pro-tem judges -
volunteer lawyers who do it without pay. A litigant can request a
real judge, but it has to be done before the trial. Small claims
appeals are generally heard by real judges, though sometimes pro
tems hear those, too.

___
Stu
http://DownToEarthLawyer.com

[mail777]

We all know that:" In CA, only the _defendant_

can appeal a Small Claims decision."

My question was when the "defendant" files the appeal (apparently he
retains the title 'defendant' ) .. could HE bring in new claims against
this former tenant? Assuming whatever notices are required.