I didn’t expect or intend for this to become an essay, and I’m certainly not beating up on your prepaid legal services attorney. In my experience, they are usually very qualified people or they wouldn’t be invited to participate in extending such services (people don’t like to pay and also lose).
And what I said was that I would not expect a judge to dismiss a case based on a letter, even a letter that provided a “black letter law” citation. The judge may rely on such a ruling to make his/her own, but it would be on the day of the hearing in open court. First, because Small Claims litigants frequently “mis-describe” the true basis for their claim, and the judge has to hear testimony and see evidence to know what it’s “really” about. Second, as stated, the plaintiff is entitled to her “day in court” to try to prove that she has some entitlement, even if, through inexperience, she gave it a wrong name. Third, there is no discovery in CA Small Claims (back to that in a moment). Fourth, an attorney would have real problems for doing what you did – ie. arguing the case to the judge via letter and outside the plaintiff’s presence. It’s called an ex parte communication, and it’s a very definite no, no. Taking the citation to court would have been the right way to proceed, and that’s apparently what your attorney suggested.
That said, I’m not familiar with Black v Hepner" (1984) 156 Cal. App.3d 656,658 and will have to research it and post back. But, if it said that malicious prosecution cases are not to be heard in Small Claims, it wouldn’t surprise me. First, Small Claims is limited in certain respects in the types of cases that it can hear and the remedies that it can provide. Second, the key malicious prosecution case in your state is Sheldon Appel Co. v Albert & Oliker (1989) 47 C3d 863, wherein the CA Supreme Court, in effect, unanimously declined to extend the reach of malicious prosecution cases, resulting in the fact that, today, malicious prosecution is considered a “disfavored cause of action”. Very few civil or criminal cases result in an action for malicious prosecution. This is because it’s so difficult to prove that the defendant initiated or maintained the original case without probable cause and with an improper purpose.
That brings us back to the malice requirement and the fact that discovery is not permitted. As previously stated, malice is hard to prove and normally requires discovery. If discovery is precluded, it’s not unreasonable to preclude cases that normally depend on it. Evidentiary presentations are difficult enough for Small Claims judges without asking them to divine a litigant’s state of mind. If your attorney found a case that extended Sheldon Appel to a preclusion rule in Small Claims, good for her.
Now, a couple of concluding points. One witness is enough, particularly if you have a dispositive citation. If the written ruling said defendant does not owe any money, I would again agree with your attorney – it doesn’t mean you didn’t win. It doesn’t happen very often, but it can happen, and that’s the reason that I asked in my first post. If you want to be sure, either go to the court and look at the case file or call and ask a clerk to tell you. It’s a public record and, at the very least, it will say “judgment for plaintiff (you) and against defendant” or vice versa. Knowing should clear your mind on that point. If you won, refer to earlier comments, if her case is allowed. Finally, I agree with your attorney that the case “sounds” of malicious prosecution. If she’s asking for “punitive damages”, by implication she’s alleging an intentional and/or malicious tort. (Let’s not go down a new, long road; just trust your attorney.) And if she lost the original case, she’s not entitled to her expenses.
Calm down, prepare your case, look into your old case and have your citation ready, don’t get caught up in some “who hit who first” kind of argument, and the Court will do the rest for you.
