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If the judge signed default judgment for writ of possession and the sheriff served the tenant to vacate, can she appeal this?
Anonymous3 views3 answers
If the judge signed default judgment for writ of possession and the sheriff served the tenant to vacate, can she appeal this to stay longer in my property? Or she has to move out then appeal it?
No, the tenant who did not appear in the unlawful detainer action does not have the right to appeal. The tenant would have to make a motion to set aside the default and vacate the default judgment. Even if the tenant(s) was/were not defaulted, filing an appeal generally does not stay the enforcement of the judgment. In other words, the sheriff can still serve the writ and notice to vacate. An appeal would not give the tenant more time to move out.
I disagree to some extent with the other two attorneys. A defendant who has had a default judgment entered against him or her may appeal the default judgment. the fact that a defendant defaulted in the trial court does not bar that defendant's right to appeal the judgment entered. (Misic v. Segars (1995) 37 Cal.App.4th 1149, 1153-1154.)
There is no procedural requirement that a party who has defaulted move to set aside a default judgment before appealing, although that may be a good idea in practice, as the record may not contain the defects the appealing party complains about.
The fact that a party appeals an unlawful detainer judgment does not create an automatic stay of enforcement of the writ of possession, however, and I agree with the other two attorneys as to that issue. In order to stay the judgment, the defaulting tenant would have to seek a stay of enforcement in the trial court, which would also include filing a bond.
