We were served an unlawful detainer, waited to be served & then receieved an entry of default. We were never served so a paralegal advised & filed a motion to vacate the default based on the fact were never served. At the judgement we were denied. We found out in court that The landlord tried to serve us through certified mail but we never receieved it. Mail man never knocked on our door, only left notices in our mailbox but we did not know at the time that it was the attorney trying to serve us. Can we appeal the eviction case?
Yes, a tenant can appeal an unlawful detainer judgment, but generally speaking the chances of winning on appeal are pretty small.
it is not clear from your post why the court denied your motion to set aside the default and vacate default judgment. Regardless, filing an appeal does not stay (stop) the eviction, so the landlord can still proceed with instructing the sheriff to serve the writ of possession and notice to vacate.
Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This Avvo.com posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.
2 lawyers agree
Real Estate Attorney
Like Mr. Chen, I am confused. What did the attorney try to serve by certified mail? A summons and complaint cannot be served by mail, certified or not. If that was the only service, you should be able to set aside the default.
On the other hand, service of a 30- or 60-day notice by certified mail is acceptable. That the tenant never actually picked it up at the post office is not relevant.
Your appeal will not stop your eviction unless the court orders a stay. You would have to make a strong showing that your eviction would cause you injury beyond that most people suffer upon eviction. If you want to obtain a stay, I would consult an attorney.