Can I sue in small claims for damages due to malicious prosecution?

[LATech]

What is the name of your state? California.

Can I sue a party in small claims court for damages (court fee and attorney fee) due to malicious prosecution? The party filed an unlawful detainer suit on one hand, but still accepted/cashed my rent payments on the other. Then, dismissed the case.

I have filed memorandum of cost through court. The party has refused to pay anything.

Any suggestions are welcome.

 

[Zigner]

If the person filed the suit because you hadn't paid them and dismissed it AFTER you paid it, then you have no case.

 

[dcatz]

That's true. I don't think I read the original post correctly and didn't recognize the dismissal was because of payment. I'll delete the earlier post.
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Sorry Zigner.

 

[LATech]

If the person filed the suit because you hadn't paid them and dismissed it ....

No. I make it a bit clear.

All of the payments were made on time in the whole period of suit. They accepted/cashed my payments before and after they filed the suit.

 

[dcatz]

We're back to square one. Make it more clear.
1) Were payments timely before, during and after suit? If yes, what was the gravamen of the UD action (why was it filed and what did it allege)?
2) After your Cost Memo was filed, was there a Motion to Tax Costs? Have costs been awarded?
3) If costs have not been awarded, what is the plaintiff refusing to pay?

 

[Zigner]

That's true. I don't think I read the original post correctly and didn't recognize the dismissal was because of payment. I'll delete the earlier post.
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Sorry Zigner.

No, my apologies to you. In any event, our OP was unclear in the initial post.

 

[LATech]

We're back to square one. Make it more clear.

Answer to your questions:

1) Yes. UD was filed because they "believe" they stop/refuse my payment. In fact, it did not. After plaintiff discovered they still accept my payments, they dismissed the suit. There was no trial.

2) There was no Motion to Tax Costs filed. What do you mean "costs have been awarded?" awarded by court? I filed Memo of Costs after plaintiff dismissed the suit. That was the last action on that suit.

3) Plaintiff just kept silent and refused to pay.

 

[Zigner]

Answer to your questions:

1) Yes. UD was filed because they "believe" they stop/refuse my payment. In fact, it did not. After plaintiff discovered they still accept my payments, they dismissed the suit. There was no trial.

That "sentence" makes no sense.

 

[seniorjudge]

...

Can I sue a party in small claims court for damages (court fee and attorney fee) due to malicious prosecution?

....

Assuming for a moment that you have a case, then you should've made a counterclaim in the first lawsuit. Because you did not, now you may not file a second lawsuit.

In other words, you had a remedy you could've taken but you didn't take it, so now you are barred from suing.

 

[LATech]

Assuming for a moment that you have a case, then you should've made a counterclaim ..

No, you can't make a counterclaim in UD case in California.

 

[dcatz]

Again, I agree with Zigner. The first parts of the response were like a ride at a theme park and left my head spinning.
OP - why not check with the court and see if your Memorandum of Costs was allowed? If there was no Motion to Tax Costs and you were entitled to them (I honestly can't tell), then you already have the right to enforce your entitlement to costs. (This is what I wrote and deleted.) You can get a writ and take all legal measures to enforce that right without the need to file a new suit and seek a judgment in Small Claims. If the Memorandum of Costs was not allowed, you will not be successful in a separate action. If they were not allowed, the Court has already made a decision on your right to recover them.

 

[LATech]

dcatz

Thank you for your response.

You mean if the Memorandum of Costs was allowed by court, I can get a writ to enforce the Memorandum of Costs? I thought you can get a writ only after having a judgment.

I found my attorney filed the Memo, but only claimed court cost. Again, the question is: is it possible to file a seperate suit in small claims court to get the attorney fee back?

 

[dcatz]

You mean if the Memorandum of Costs was allowed by court, I can get a writ to enforce the Memorandum of Costs?

Yes

I found my attorney filed the Memo, but only claimed court cost. Again, the question is: is it possible to file a seperate suit in small claims court to get the attorney fee back?

It's possible. I don't expect you to be successful. Your rights will have been adjudicated by the ruling on the Cost Memo, and we still don't know if you were awarded costs. Your issues have been confusing (to me, at least) since the original post. I'd suggest that you talk to your attorney to find out why they were not claimed and where you stand now. It's highly likely that he/she will have a better sense of this matter than we do.

 

[LATech]

dcatz

we still don't know if you were awarded costs

After filing the Memo, no any other action was taken on top of that case. No response came from either court or plaintiff. I am not sure how you will know court awarded the costs.

You mean if the Memorandum of Costs was allowed by court, I can get a writ to enforce the Memorandum of Costs? Yes.

Your answer actually confused me because my attorney said I can force them to pay only if I can get the judgment. The case was dismissed by plaintiff without trial/judgment. That's why my attorney suggests me to file a suit in small claims for the damage (court fee and attorney fee) less than $7500.

It's highly likely that he/she will have a better sense of this matter than we do.

I know. I just want to get more information. Thank you for your reply.

 

[dcatz]

One simple, declarative sentence:
If you got an award of costs, it can be enforced in the same way as a judgment is enforced. (Period. Full stop.)

Beyond that statement, follow your attorney's advice or wait for input from another member or do both. Beyond that statement, I'm not able to help you. The dialogue is only making things worse.