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How difficult is it to prove an appeal was filed in bad faith and without merit?

Modesto, CA |

Landlord is appealing but it is very clear he violated CA civil code 1950.5. He waited until the 30th day to file appeal and has done numerous unscrupulous things throughout this process. He is going to do everything he possibly can to frustrate me into abandoning my suit.

Attorney Answers 3

Posted

It is impossible to answer your question. You want to know how hard it will be to prove something. You provide no facts. Hmmm.

I think you should call the county bar association and ask for the lawyer referral service. Tell them you were/are a tenant and you wnat to get the names of lawyers who do landlord/tenant cases on behalf of tenants. Probably they'll give you names and phone numbers of 3 lawyers who'll each give you 1/2 hour of their time free. The bar's referral service usually charges a modest processing fee -- like maybe $35.

You can then sit down face-to-face and give fairly detailed facts. A real bargain. AVVO is not a good place to ask for an estimate of difficulty of proof--no attorney here will give you the kind of answer it appars you want, and that's because they don't have sufficient facts to do so. Even after a 1/2 hour interview, I doubt that many lawyers would say something like, "You have a 52% chance of winning on the issue of a bad faith filing. Because no two cases are the same, an answer like that is -- well, 100% unlikely.

Good luck. But, set realistic goals for yourself -- and for the lawyers who visit this site.

This answer is made available by the above lawyer for educational purposes only. It is also offered as a public service to give you general information and a general understanding of the law. This answer is not intended to give you specific legal advice. By using or participating in this site you understand that there is no attorney client privilege between you and the attorney responding. And, no attorney-client relationship has been formed. This site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. The information and materials provided are general in nature, and may not apply to a specific factual or legal circumstance.

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Posted

Attorney Tonsing is right. There's no way to really answer your question about a bad faith appeal without knowing the specific details. We don't know anything about the unscrupulous things being done to frustrate you into abandoning your lawsuit.

Typically, it is extremely difficult to file a motion to dismiss a frivolous appeal.

Waiting until the 30th day to appeal is no different than filing on the 1st day.

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 posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult with your own attorney.

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Michael John Tonsing

Michael John Tonsing

Posted

All that and more. Attorney Chen is correct.

Asker

Posted

When asking how difficult it is to prove bad faith, I only meant is it something worth pursuing or is the bar set so high in establishing it that it's not worth it? Let's see...he failed to show up to the initial trial and did not notify us....the court said it was their fault even though when you file a request to postpone you have to send it to the other party. The court still allowed him to postpone. Prior to going back to court, he sent us an order to go to court (suing us) even though those papers were never filed with the court and had no clerk's stamp. Along with those official court documents, which he signed, was a letter accusing us of slander and telling us to stop wasting the courts time by suing him. I assumed that sending court papers that haven't been filed as a means to encourage someone to drop their suit was abuse of the legal process. He threatened to increase the damages if we sued him court. I have written proof of this. He made good on this threat, suing us for 7500 even though he initially returned a small percentage of our deposit (after 21 days). I think all of that amounts to bad faith.

Posted

Whether an appeal is frivolous is usually determined after all of the briefs are filed, and is based on the content of the brief. Nothing that happened in trial court - or outside of court - will be considered by the appellate court in determining the merit, or lack of merit, of an appeal.
The landlord has a presumptive right to appeal, and in most circumstances, that procedural right is upheld.
It is probably best for you to spend your energy and efforts on the issues raised by the appeal, instead of trying to attack the existence of the appeal.

Nothing contained in this communication is intended to be, or shall be deemed as, legal advice, counsel, or services to on or behalf of any person or any entity. Usage of the Avvo website is not intended to and shall not create any obligation or relationship between the user and the Law Office of Herb Fox, including but not limited to, an attorney-client relationship. Further, the communications on this website between you and the Law Office of Herb Fox may not be privileged or confidential. Finally, your situation may be governed by deadlines that may or may not have already lapsed, and you may lose your rights if you do or did not act within those deadlines.

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Michael John Tonsing

Michael John Tonsing

Posted

Good advice from Attorney Fox, based on the limited facts that we know.

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