Is this a potential case for malicious prosecution and could I sue in small claims for malicious prosecution?

T

thelawquestions2024

New Member
Jurisdiction
California
A lawyer I retained kept a 9k retainer I had paid him, then later on took me to small claims court for 5k. (He had billed me a total of 20k and at some point after I ended the representation offered to reduce the bill to 15k.) Obviously, I assumed he was therefore trying to collect a total of 14k (the retainer he kept plus the 5k from the small claims judgment). I carefully prepared some exhibits and at the hearing he testified that he was only asking for 5k *total*.

Clearly, he didn't need to instigate litigation if what he was wanting all along was 5k, since he could've just refunded 4k of the retainer I had given him. Could I sue him in small claims for malicious prosecution?
 
thelawquestions2024 said:
Clearly, he didn't need to instigate litigation if what he was wanting all along was 5k, since he could've just refunded 4k of the retainer I had given him. Could I sue him in small claims for malicious prosecution?
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To answer your question, you first have to understand what malicious prosecution is in CA.

'The common law tort of abuse of process arises when one uses the court's
process for a purpose other than that for which the process was designed.
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That is a very basic definition, and you can read all the precedents of the CA courts here:

In your post you say you paid your attorney a $9K retainer. You don't say if that retainer was a flat fee or to be drawn against in the course of his/her work. If the later and I assume it was, then you should have been billed accordingly or told when the retainer balance was $0, and that additional work would be billed at whatever rate was agreed to in the retainer agreement.

With that being said, you were sued to recover the attorney's fee and/or expenses beyond the retainer paid presumably the $5K the attorney settled for in court.

That is not an abuse of process for a purpose other than that for which the process was designed. So, no you don't have a case for malicious prosecution IMO.
 
thelawquestions2024 said:
Could I sue him in small claims for malicious prosecution?
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You could, but you'd lose because (1) you have no damages, and (2) "a cause of action for malicious prosecution cannot be grounded on institution of a small claims proceeding." Pace v. Hillcrest Motor Co., 101 Cal. App. 3d 476, 479 (1980).


welkin said:
To answer your question, you first have to understand what malicious prosecution is in CA.


That is a very basic definition, and you can read all the precedents of the CA courts here:
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Abuse of process and malicious prosecution are two different things. You linked to CACI 1520, which is the instruction for abuse of process. The instruction for malicious prosecution (aka "wrongful use of civil proceedings") is found in CACI 1501. Also, while CACI cites some precedent, it does not have "all the precedents of the CA courts."
 
Redemptionman said:
No, but you can make a claim on excessive fees if you would like. However, keep in mind that Attorneys are considered officers of the court. So, you chance of success is probably not very high.
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There is nothing in the facts the OP provided that indicates that the fees charged were excessive. If the attorney was representing the OP in litigation it wouldn't be all that unusual for fees to reach $20k or more.
 
Tax Counsel said:
There is nothing in the facts the OP provided that indicates that the fees charged were excessive. If the attorney was representing the OP in litigation it wouldn't be all that unusual for fees to reach $20k or more.
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I agree was just telling OP what the options are, he is due an itemized statement of the fees and what they relate to. It is difficult to argue fees when it comes to these types of things.
 
As you indicated that you are in CA, the CA State Bar (which is overseen by the California Supreme Court) you might consider in the future using the Bar's mandatory fee arbitration program to pursue a fee complaint. If you request fee arbitration the attorney is required to participate and the result of the arbitration is binding on both attorney and client. This provides a less formal and less expensive option to contest a fee than having to litigate it in court.
 
welkin said:
To answer your question, you first have to understand what malicious prosecution is in CA.



That is a very basic definition, and you can read all the precedents of the CA courts here:

In your post you say you paid your attorney a $9K retainer. You don't say if that retainer was a flat fee or to be drawn against in the course of his/her work. If the later and I assume it was, then you should have been billed accordingly or told when the retainer balance was $0, and that additional work would be billed at whatever rate was agreed to in the retainer agreement.

With that being said, you were sued to recover the attorney's fee and/or expenses beyond the retainer paid presumably the $5K the attorney settled for in court.

That is not an abuse of process for a purpose other than that for which the process was designed. So, no you don't have a case for malicious prosecution IMO.
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The retainer was to be drawn against. I was billed much more than the original retainer - more than twice, in fact, without any warning. The attorney did testify at the small claims hearing that he could exhaust the retainer and bill above it without warning. My understanding is that that is technically true. I was not ever told when the retainer was exhausted.

"With that being said, you were sued to recover the attorney's fee and/or expenses beyond the retainer paid presumably the $5K the attorney settled for in court."

This is the thing, though. This was my original assumption. But what happened is at the hearing the attorney testified that he only wanted 5k *total* and "if we win, we will return the client's balance to him, but we can talk about that later" (I have a recording of the hearing). The attorney changed his story at the hearing, I think specifically to avoid a claim of malicious prosecution, which I had mentioned in one of my last filings on the case.
 
zddoodah said:
You could, but you'd lose because (1) you have no damages, and (2) "a cause of action for malicious prosecution cannot be grounded on institution of a small claims proceeding." Pace v. Hillcrest Motor Co., 101 Cal. App. 3d 476, 479 (1980).




Abuse of process and malicious prosecution are two different things. You linked to CACI 1520, which is the instruction for abuse of process. The instruction for malicious prosecution (aka "wrongful use of civil proceedings") is found in CACI 1501. Also, while CACI cites some precedent, it does not have "all the precedents of the CA courts."
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Out of curiosity, what would damages ordinarily entail? Does the stress of litigation, having libelous claims made about me, etc, count? Also, thanks very much for that case law. It's very helpful.
 
Tax Counsel said:
There is nothing in the facts the OP provided that indicates that the fees charged were excessive. If the attorney was representing the OP in litigation it wouldn't be all that unusual for fees to reach $20k or more.
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The attorney himself reduced his fees from something like 18k total to 5k, which the judge agreed with. There was no litigation. Work product did not in any way justify the fees. I'm asking about whether there's a case for malicious prosecution, not the merits or demerits of the fee dispute itself, of which I am confident. Thank you though.
 
Tax Counsel said:
As you indicated that you are in CA, the CA State Bar (which is overseen by the California Supreme Court) you might consider in the future using the Bar's mandatory fee arbitration program to pursue a fee complaint. If you request fee arbitration the attorney is required to participate and the result of the arbitration is binding on both attorney and client. This provides a less formal and less expensive option to contest a fee than having to litigate it in court.
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We already are in small claims litigation; it is past the deadline for arbitration.
 
Zigner said:
Let's be clear - did you already lose your case?
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This is where the difficulty lies. I think I technically "lost" because the judge wrote the judgment as awarding them 5k, but he made it clear (and as I mentioned, I have the recording) that he meant that he was ruling they are entitled to 5k *total* for the work they completed, not the retainer *plus* 5k.
 
zddoodah said:
You could, but you'd lose because (1) you have no damages, and (2) "a cause of action for malicious prosecution cannot be grounded on institution of a small claims proceeding." Pace v. Hillcrest Motor Co., 101 Cal. App. 3d 476, 479 (1980).




Abuse of process and malicious prosecution are two different things. You linked to CACI 1520, which is the instruction for abuse of process. The instruction for malicious prosecution (aka "wrongful use of civil proceedings") is found in CACI 1501. Also, while CACI cites some precedent, it does not have "all the precedents of the CA courts."
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I have a question about that case law cited, Pace v. Hillcrest Motor Co. Is case law always taken as precedent that future rulings should be based on?
 
thelawquestions2024 said:
This is where the difficulty lies. I think I technically "lost" because the judge wrote the judgment as awarding them 5k, but he made it clear (and as I mentioned, I have the recording) that he meant that he was ruling they are entitled to 5k *total* for the work they completed, not the retainer *plus* 5k.
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Because they won, this cannot be malicious prosecution/abuse of process.
 
Yes and it is what fees are necessary for the successful prosecution of the case.

I have seen civil cases where fees such as $400 for dinner tabs, and $3000 dollar conferences have been included. Sure you could argue fees but the lawyer will more than likely win when the judge is also highly paid for his or her services and the fees are within reason.
 
Zigner said:
Because they won, this cannot be malicious prosecution/abuse of process.
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There is an appeals, so if I win the appeals, if I'm understanding you correctly, I might have a case for a malicious prosecution? I'm not 100% certain whether the case law cited above is always taken as precedent (bc I don't know how case law functions, precisely in the legal system). If so, then it seems that regardless, I have no case for malicious prosecution, since successful claims for malicious prosecution can never arise from small claims litigation.
Redemptionman said:
Yes and it is what fees are necessary for the successful prosecution of the case.

I have seen civil cases where fees such as $400 for dinner tabs, and $3000 dollar conferences have been included. Sure you could argue fees but the lawyer will more than likely win when the judge is also highly paid for his or her services and the fees are within reason.
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Are you referring here to the damages for malicious prosecution?
 
thelawquestions2024 said:
There is an appeals, so if I win the appeals, if I'm understanding you correctly, I might have a case for a malicious prosecution? I'm not 100% certain whether the case law cited above is always taken as precedent (bc I don't know how case law functions, precisely in the legal system). If so, then it seems that regardless, I have no case for malicious prosecution, since successful claims for malicious prosecution can never arise from small claims litigation.

Are you referring here to the damages for malicious prosecution?
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If you appeal a small claims judgment in California, you get a trial de novo, meaning it's a brand-new trial. The difference is that the trial will be in a higher court, where you'll be way out of your league, especially when going up against an attorney.
Furthermore, from what you have shared here, you will likely still lose at the appeal.
 
thelawquestions2024 said:
There is an appeals, so if I win the appeals, if I'm understanding you correctly, I might have a case for a malicious prosecution? I'm not 100% certain whether the case law cited above is always taken as precedent (bc I don't know how case law functions, precisely in the legal system). If so, then it seems that regardless, I have no case for malicious prosecution, since successful claims for malicious prosecution can never arise from small claims litigation.

Are you referring here to the damages for malicious prosecution?
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What malicious prosecution, you have been given advice but yet you continue to act as if you have a winnable case. What I am saying is the fees are the fees and you suing the attorney is going to add more fees to what you owe because you do not have a case. So, if you go to court and lose which you will then you will owe a heck of a lot more than than the 4-5k you are squabbling over.

Make sense?
 

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