Is Discovery Allowed in Small Claims Appeal

[EmmsCA]

My question involves small claims court in the state of: California


I recently sued an attorney in small claims for payment on some contract secretarial work. He didn't show up at the hearing. He said my sub-service was invalid. The judge looked at the proof of service and agreed with me that service was valid. I was awarded the default judgment.

The attorney (defendant) contacted me and is threatening to make me "pay." He says he will appeal and that for the appeal, he can use discovery and depose me. I thought discovery wasn't allowed, even if you retain counsel for the appeals (new) trial..?

[flyingron]

Appeals are de novo hearings in front of a new judge. The rules are the same as the first time around other than that both parties may be represented by counsel.
Of course he can probably also try to get the default judgment set aside and enter a counterclaim in a way that causes the case to be removed to regular civil court.

[cmre3456]

I don't understand why discovery would be a problem - such a problem that he "threatened" you with it. Do you have something you don't want the court to see that the attorney knows about? I've never been afraid of discovery. He says he can depose you. So what? Do you have the truth and the facts on your side? I don't get it how this is a threat unless you have something to hide?

I'm not implying that you have something to hide; I'm confused.

Are there questions he would ask that you don't want to answer?

His appeal right now would be of the default judgment. You said he claimed your sub-service was invalid but the judge agreed it was valid. He can appeal the judge's ruling on that.

Question: Did he make the claim to the court that the sub-service was invalid in the form of a motion for dismissal? If so did the judge deny his motion, rule in your favor and give you the default judgment? If the answers to both are yes, then his "appeal" will be challenging the judge's ruling on the method or form of service.

If he wins that point, then you're back to square one, needing to find out about date limits from filing to service, and finding out if you need to re-file, or if you just need to re-serve. The clerk should know those answers.

If he loses the appeal on the service point, he can still sue you if he has a cause. That's why I'm wondering what he or you think he would discover in a deposition. If he has a counterclaim that you think will cause you problems, you might want to talk settling with him.