Q: Can you file a lawsuit in small claims for attorney cost for to obtain for a wrongful temporary restraining order?
The temporary restraining order was dismissed by the court but for approximately two months I was banned from entering any property that my homeowner controlled like the clubhouse, restaurant, fitness center or other areas they controlled. I was still required to pay my association dues of approximately $345.00 dollars.
The two individuals accused me of threatening them that I had a gun and would use it to shoot them. Just days latter one of the persons was terminated and the second person was not, also the director of the association continue with the continuation of the restraining order. The court system recommends that an attorney is the best recommendation for this matter. I paid $3,500.00 dollars for a attorney which is the amount I'm requesting that the association pay me along with other expenses that I went through, can I claim these as well?
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- California
- (916) 704-3009
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- Answered
A:
In California, you can file a lawsuit in small claims court to recover attorney's fees and other costs incurred due to a wrongful temporary restraining order (TRO). However, the success of your claim will depend on the specific circumstances of your case and the court's interpretation of the law.
Here are a few things to consider:
1. Wrongful TRO: You will need to demonstrate that the TRO was wrongfully obtained and that there was no reasonable basis for the allegations made against you.
2. Attorney's fees: California law generally does not allow the recovery of attorney's fees in small claims court unless a contract or statute specifically provides for it. However, if you can prove that the TRO was obtained in bad faith, you may be able to recover attorney's fees under the "tort of another" doctrine.
3. Other expenses: You can claim other costs directly related to the wrongful TRO, such as lost wages or travel expenses for court appearances. However, you will need to provide evidence of these expenses.
4. Small claims limit: In California, the maximum amount you can claim in small claims court is $12,500 for an individual. If your total claim, including attorney's fees and other expenses, exceeds this amount, you may need to file your case in a higher court.
5. Statute of limitations: Be aware of the time limits for filing your claim. In California, the statute of limitations for most civil claims is two years from the date of the incident.
Given the complexity of your case, it is advisable to consult with an attorney who can review the specific details of your situation and provide guidance on the best course of action. They can also help you determine the strength of your case and the likelihood of recovering your attorney's fees and other expenses.
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