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What are the ground of filing a civil lawsuit for defamation/slander and how do I have to serve it to the other party.

Los Angeles, CA |

I have been brought to court for a t.r.o. based on some horrible accusations, which are not only true, but the other side has not even provided anything to back himself up. If I am not mistaking, if there is a temp. rest. order, it shows on your record/background check with the written 'accusations' of the other side as well. For this reason, that person has made a criminal out of me and a who*e, but has nothing to back himself at the same time. I need to know how to file a civil lawsuit against him in order to demand that he brings forward proof of everything he has claimed! Also, out hearing for the permanent rest. order is set after a month (he asked for a continuance), and I am wondering if I can serve him with the civil lawsuit forms in the court through my parent. So will my claim

that since a temp. rest. order (let's say the judge dismisses the case for our temp. rest. or.) is going to show up on my background check and people will see what he has written about me, has resulted in me not finding a job be enough reason to file the lawsuit or not. How can I file a civil action then and do I have the grounds to be successful to use his temp. rest. order accusations (which are NOT based on any threats) to take him to court for that other case.

Attorney Answers 4

Posted

In my opinion, you're going to have to lay out all of the facts in more detail in a private consultation with a local attorney who's familiar with this kind of litigation. Speaking broadly and generally, you're saying that false accusations have been made against you in a bogus legal action. I'm not licensed in CA, but the kind of claim that's generally appropriate to obtain damages for this kind of wrong is in the nature of abuse of process or malicious prosecution. But before such a lawsuit can be filed, you have to win the legal action that's been filed against you.

It's risky to try to handle such a situation by yourself. You really should consult with a local attorney and hire one to represent you.

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3 comments

Asker

Posted

ok thankd...just to clarify what you said for myself...you're saying that I need to first win the temp. restraining order against me (have the judge dismiss it) and only then think about this second issue am I correct.

William J Mertens

William J Mertens

Posted

Yes, but you'd do well to speak directly with a local attorney.

Panda Lynn Kroll

Panda Lynn Kroll

Posted

Agree with Mr. Mertens that generally speaking malicious prosecution/abuse of process after dismissal is better course than defamation, and note that filing a defamation lawsuit in California based on a lawsuit can expose the filer to paying the alleged defamer's attorney fees based on California's "litigation privilege" and corresponding "anti-SLAPP" defense.

Posted

Best bet is to sit down with a local lawyer to evaluate.

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Posted

You need to actually fight the TRO by appearing at the hearing with an attorney. If you win, there will be no record and no job loss based on the false accusations then. If you lose the TRO and then are not get a job based on that and if the accusations are false, you may have a defamation claim. If you are a minor I would not have a parent serve the papers. If you are an adult, a parent can serve since they are not a party to the lawsuit. Good luck.

I am licensed in California only and my answers on Avvo assume California law. The above answer is for general information only and is based on the information you posted. Every case is fact dependent, so to get a thorough analysis of your situation, you will need to consult face to face with an attorney licensed to practice in the jurisdiction where the incident took place. Do not conclusively rely on any information posted online when deciding what to do about your case. No attorney-client relationship shall be created through the use reading of this response on Avvo. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information in this response.

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Panda Lynn Kroll

Panda Lynn Kroll

Posted

See my guide re certain problems with claiming "defamation" based on a lawsuit.

Posted

I agree with our attorneys who have responded with the general principle that to take any affirmative action based on accusations, the accused must first prevail in court on the TRO. Also, a defamation suit is likely to backfire in California, because the "litigation privilege" protects plaintiffs and permits an "anti-SLAPP" motion to recover their attorney fees. Rather, as has been suggested, a malicious prosecution/abuse of process case is a limited way to address false accusations, however, that can only be filed after dismissal or adjudication in the wrongly accused's favor. This general advice is no substitute for specific legal assistance and I strongly advise you contact an attorney for a free initial consultation.

This answer is not a substitute for legal advice and it does not create an attorney-client relationship.  Seek the advice of a licensed attorney before taking any action that may affect your rights

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