QUESTION
Unlawful Detainer dismissed pre-trial. Landlord claimed breach for unapproved roommate. Case without merit. Small Claims ok to recover Atty Fees?
Asked on Sep 25th, 2011 on Civil Litigation - California
More details to this question:
(Los Angeles, CA) UD was brought by Landlord due to "unapproved roommate". The roommate had been living there with LL knowledge and approval for 8 months. Tenant witnesses were going to place roommate & LL interacting throughout the 8 month period.
I now want to recover my attorneys fees stemming from this frivolous lawsuit. I would like to use Small Claims court to recover attorney fees, non-reimbursed court fees, copying fees, days of lost work while at court, etc. I have enough evidence to pursue Malicious Prosecution (prior frivolous UD, lead paint/child poisoned) against LL. Will Small Claims let me present a short case for Malicious Prosecution? Is pre-trial dismissal without prejudice considered a favorable outcome?
My rental contract allows for attorney''s fees. Civil code 1717 apparently prevented my attorney from filing to recover fees.
1 ANSWER
Victor Obninsky
I will try to answer your questions and then suggest you drop the whole thing. Small claims court is probably appropriate for any civil claim. Your tort claim is unusual; I would proceed on contract rights for attorney fees and various court costs. Your problem is that a dismissal without prejudice may not be a conclusion of the case on its merits. You were sued and won, but the landlord can amend the complaint again; this will cause more hassle and attorney fees. I suggest you leave it as is.
Answered on Oct 08th, 2011 at 2:00 PM