Defendant Claims Lawsuit is Defamatory and Threatens Prosecution

[mrshiggins]

My question involves small claims court in the state of: California

I am suing my brother in law because he vandalized my car. This was witnessed by me and my brother. This damage has totaled about $1400. I am having to take off of work, which is another $200. Plus gas to drive up to the venue is about $80. I wrote my brother in law a letter asking for the funds but he didn't reply so I filed a small claims, which I told him I would do.
Today I received a letter from him stating this:

"Please be advised that you owe me a written letter stating that you will no longer attempt to pursue me in small claims court for damages to your vehicle. This letter is to be notarized and in my possession via certified mail no later than March 15, 2012. If this notarized letter is not in my hands by March 15, 2012, I will press charges against you for defamtion and harassment without further notice. Furthermore, I will pursue you for an amount of money that my attorney deems reasonable based on your accusations as a false witness and the cost of my expenses. It is in your best interest to settle this matter before a lawsuit is filed. This letter serves as evidence that I have attempted to resolve this matter informally."

I have a few questions. One is how will he prove anything. There were some things that I told my sister, via Facebook, that I felt about him. I didn't blast his name through the town, or on the internet. As for harassment, I asked him once for the money to be paid and my sister twice. After that, I have contacted him or my sister for nothing. I has been over a month.

How will this go? What are the steps/procedures with being charges with this? Will they actually arrest me?

[Dogmatique]

What exactly did you say?

Has your BIL actually been convicted with vandalizing your car?

[cdwjava]

You have every right to pursue a legal remedy for damages if you have a legitimate claim for them. He is probably bluffing.

As a note, there is really no criminal charge for "harassment" in CA and if he sees service of civil process as "harassment" that's too bad for him. Now, he might be able to sue you for defamation if you have been going about telling people he did things that you cannot prove. But, that's a civil issue and only you know whether that has been happening or not.

If you have a case in small claims and have done nothing else wrong, you might consider just going ahead with the the small claims suit.

As asked before, has your brother in law been convicted? Was he charged? If the police were NOT called, why weren't they? If they were called, what came of it?

[mrshiggins]

I made some comments to my sister that he is no good. That he is not a good father... but that's it. This was after the entire incident of him vandalizing my car.
My BIL hasn't be convicted in vandalizing my car. The police report wasn't complete so the DA didn't press charges... I highly doubt he will be now. The Sherrif didn't interview one of my witnesses (my brother) until the other week, after I called a handful of times to tell him he needs to get my brothers statement. Also my sister defended her husband and told the cops that he didn't vandalize my car. So the DA couldn't press charges.
I now have an e-mail from my aunt stating that my BIL told my dad that he doesn't remember doing anything to my car, because he was drunk. But I saw it... so did my brother.

[jk]

Also my sister defended her husband and told the cops that he didn't vandalize my car. So the DA couldn't press charges.

why can't the DA prosecute him?

[Dogmatique]

Okay - so he did not, in the legal sense, vandalize your car. Legally speaking. So, don't accuse him of that to ANYBODY else. Even on Facebook!

Keep the "he's not a good father" comments to yourself, too - while they're generally not actionable, they're just not necessary.

He's blowing smoke, it seems. There is no criminal defamation statute for CA, so he can't even request that the DA "press charges". Plus, and this is probably more telling, if he'd actually spoken to an attorney and the attorney thought he had anything? The attorney would have sent you a cease & desist, in all likelihood.

Ignore him. If by some miracle you're served with a defamation suit, please let us know

[mrshiggins]

The DA won't prsecute him because he and my sister say he didn't do it. Then my brother and I say he did... so it's a wash. But I have an e-mail stating that he told my dad he didn't remember doing anything.... so in my mind, his statement should be void. But that is the reason they told me they wouldn't prosecute him.

Thanks Dog.
Yea, I haven't said anything to anyone about him since I last wrote my sister three months ago.

But if anything comes of it, then I'll let you guys know...

[Riply]

The DA won't prsecute him because he and my sister say he didn't do it. Then my brother and I say he did... so it's a wash. But I have an e-mail stating that he told my dad he didn't remember doing anything.... so in my mind, his statement should be void. But that is the reason they told me they wouldn't prosecute him.

Prosecuting a criminal case and suing on a civil matter are two different things.

You have at least one witness who can state that the BIL vandalized your car, as well as an email (if you can get a copy of it) where the BIL says he "doesn't remember, because he was drunk".

I'd say go forward with the small claims action and take the letter you received with you to present to the Judge. To threaten somebody with criminal action because of a civil suit won't fly, even if there's no possibility for the BIL to actually initiate criminal charges. He can't, so his letter is no more than an open and wanton threat.

Small claims courts require only a preponderance of evidence, not evidence that is clear and convincing as would be required in a criminal case. Since the evidence of vandalism wasn't clear and convincing, I'm guessing that's why the DA wouldn't pursue prosecution. Your evidence, however, is more believable than his story might be.

I'm assuming you have some critical supporting evidence, such as photographs, the police report, and repair estimates or the paid repair bills. These will be very important to your case.

Remember that winning your case (getting a judgment) and collecting the money are also two different things.

The bottom line is, don't let his letter rattle you. You've every right to pursure him for damages to your car.

(I am not an attorney - my comments should not be considered legal advice.)

[mrshiggins]

Thanks Rip.... I did proceed with the lawsuit and he didn't show. (See my other post that I just posted with the updated information).
And I do know that winning and collecting are two different things. I am well prepared to have to file other paperwork in order to get his wages garnished or accounts garnished also.