Castro Valley, CA asked in Civil Litigation, Legal Malpractice, Libel & Slander and Probate for California

Q: Can a defendant sue a plaintiff, her attorney & their witness for using perjured facts from a prior harassment case?

Can a defendant sue in a probate case if the complaint is based on Known libelous statements that was proven to be libelous in an unrelated harassment order case where the defendant in the current probate case was the plaintiff & the witness for the plaintiff in the current probate case was the defendant in the harassment case? Plaintiff ”defendant in probate case” in the harassment case was awarded 2 harassment orders against the defendant “plaintiffs witness “ in the probate case for a total of 7 years. Isn’t it considered defamation, harassment & a violation of the defendant’s civil rights when a plaintiff contest a trust & claims elder abuse, financial abuse and undue influence that the plaintiff & her attorney knew were false statement of fact but continued the case? Is the attorney liable for ignoring the proof in hopes of bullying the defendant into a settlement? What if the plaintiffs attorney lied about all parties agreed to an unconstitutional settlement that canceled trial

1 Lawyer Answer
Joseph Franklin Klatt
Joseph Franklin Klatt
  • Legal Malpractice Lawyer
  • La Jolla, CA
  • Licensed in California

A: The standards are different for restraining orders than they are in a civil probate matter. When in doubt in a restraining order situation, the Court errs on the side of caution and grants the restraining order. In a civil matter, you have to prove more likely than not you are correct, and are not given the benefit of the doubt. Because of this, it can be completely consistent to win at the restraining order hearing and lose on the same question in probate.

The restraining order hearing likely did not make any findings as to who was telling the truth or not. It definitely did not adjudicate anything as defamatory. There is no civil rights problem or attorney ethical problem with relitigating the issue in a different court, under different standards. The attorney only must have a good faith belief that his client could be right, and he has a right to rely on his client.

If you want to be successful here, you have to get the words liar, lies, and perjury out of your vocabulary. You can disagree, the other side can be mistaken, or incorrect, or you have a different recollection . . . if you go throwing perjury and lies around and attack the other side's character, and particularly if you crusade against opposing counsel *and you are unrepresented), it will hurt your credibility with the Court. If you can prove the other side was lying, don't say it, show it through evidence, and let the Court draw its own conclusions about the other side.

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