Is Malicious Prosecution a cause of action in Family Court, or do I go to civil Court?

Asked over 1 year ago - Woodland Hills, CA

Respondent has signed a Marital Settlement Agreement and seven stipulated Agreements negotiated by me, but then goes into Court and gets whatever she wants - vacated orders, modification of the Custody Order by making big sensational lies. Her Attorney is Personally involved, stands to benefit if a Fraudulent Default Judgement stands. He is encouraging and in some cases, driving this behavior. He has filed 10 times for various BS reason, to interfere with my life. They have extended an attack on my Custody for 7 years beyond the MSA. It is baseless, unproven, emotionally debilitating malicious Prosecution. How do I proceed against the Attorney?

Attorney answers (5)

  1. Michael Raymond Daymude

    Contributor Level 20

    9

    Lawyers agree

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    Answered . I strongly suggest you obtain legal counsel, particularly before you embark on a groundless malicious prosecution action against your adversary's attorney. So far, from what you write, your ex-spouse is winning. You cannot state a claim for malicious prosecution against the winning attorney of your adversary.

    I am licensed in California only and my answers on Avvo assume California law. Answers provided by me are for... more
  2. Christine C McCall

    Pro

    Contributor Level 20

    8

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    Answered . If the family court has granted relief sought by your ex ("vacated orders, modification," etc.) those findings and actions by that court will by operation of law preclude any recovery by you for claims of malicious prosecution or abuse of process. The family court's judgments are dispositive as to any factual and legal issues necessarily considered by that court, including credibility determinations, and your remedy is to appeal, not to bring a separate civil action in another court. It is irrelevant as a matter of law that your spouse's attorney has "encouraged" her legal measures, and you have no standing to raise the attorney's self-interest, if any. That is an issue between your ex and your ex's attorney that does not require your approval or assent. Youdo not "proceed against" your ex's attorney because that attorney has no legal duty or obligation to you.

    You need an attorney -- to represent you in this case and for objective and comprehensive legal advice -- and in particular to explain to you that you must win on the merits of the issues in the family law court -- not elsewhere and not on ancillary claims of lies and bad motives.

    My responses to questions on Avvo are never intended as legal advice and must not be relied upon as legal advice.... more
  3. Howard M Lewis

    Pro

    Contributor Level 20

    5

    Lawyers agree

    10

    Answered . I am sorry that you are going through this. You have claims in both courts and many times the judges can limit your ex spouses ability to file an action without leave/permission of the court. You may file a complaint for contempt/abuse of process or you may file a civil action seeking to recover costs and attorney fees, chat with a local CA attny and choose your best and most cost affective path. take care.

    Legal disclaimer: The response given is not intended to create, nor does it create an ongoing duty to respond to... more
  4. Paula Brown Sinclair

    Contributor Level 20

    5

    Lawyers agree

    Answered . Your view of the legal proceedings and the motivations of your ex and her attorney may seem rational to you, but experienced counsel will make all the difference. Not only can an attorney help you sort out what has happened, but is your only hope for influencing future proceedings in your favor. Proceeding against an attorney who has been advocating for his/her client in a manner sanctioned by the law and court's rules is a fool's errand.

    Best wishes for an outcome you can accept, and please remember to designate a best answer.

    This answer is offered as a public service for general information only and may not be relied upon as legal advice.
  5. Martha Bronson

    Contributor Level 14

    3

    Lawyers agree

    Answered . Al l of the litigation activity is privileged under secton 47 ...you cannot use the attorney statements or pleadi ngs to prov e your case. if you file a lawsuit against the attorney
    you an ex\You will not be able to use the statements or pleadings of the attorney to prove any part of a case you file against the attorney. You can expect an anti-SLAPP motion in response and to lose the motion. You can also expect to pay the attorney fees incurred by your adversary in defending against the lawsuit. The fees in those types of cases are historically high due to the specialized nature of the anti-SLAPP motion and law. In conclusion, you need to consult with experienced legal counsel about these matters before embarking on a lawsuit on your own. It could save you a tremendous amount of money and strain.

    Please note that this answer does not constitute legal advice, and should not be relied on, as each situation is... more

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