Legal Question in Business Law in California

Re: continuing lawsuit of no merit

You are correct (if your assumptions are correct)

Re: continuing lawsuit of no merit

There are two categories of lawsuits without merit. The first and larger category is those suits where the lack of merit is not revealed until a fair amount of legal proceedings have taken place - often trial and judgment; but sometimes the lack of merit is disclosed through discovery or proceedings such as summary judgment motions. Such cases are usually brought in good faith and do not warrant sanctions or serve as a basis for a later suit for malicious prosecution.

The other and much less frequent category of meritless lawsuits includes those where the lack of merit is obvious from the pleadings (the complaint and answer or demurrer) or where the slightest amount of pre-lawsuit research by the plaintiff would have shown him that (for example) he had mis-identified the defendant. A frequent example is a suit against the owner of a corporation for something the corporation did, and which contains no "alter ego" allegations.

One frequently-useful method of attacking meritless suits is to demur to the complaint rather than answer.

When things have progressed beyond the responsive pleading stage, it may be necessary to move for summary judgment or summary adjudication. Other later-stage means to obtain dismissal include a showing that the court lacks jurisdiction (although this is seldom the case after a party has appeared through filing a responsive pleading).

I see by your Zip that you are near the Sonoma County courthouse; this is where I conduct most of my business and real estate practice, ad I'd be happy to review your situation at no charge to assess your prospects and give you recommendations.

Re: continuing lawsuit of no merit

It is unethical to prosecute a lawsuit that has no merit and the attorney can be sanctioned by the court for such wrongful conduct. A CCP 128.7 Motion should be served warning the attorney to drop the case. Please contact me if you have any other questions.

Re: continuing lawsuit of no merit

There are ways to terminate the lawsuit early -- judgment on the pleadings (if the pleadings show no facts to support the claim), depositions, interrogatories, documents demands and requests for admissions leading to a motion for summary judgment. Once you win, you might sue both the other party and the attorney for malicious prosecution if the case fits within that category.

Re: continuing lawsuit of no merit

The issue of improper service is irrelevant if you answered the lawsuit. As for the strength of your evidence, the opposing party and the attorney will usually respectfully disagree. It may not be so "obvious" that the lawsuit lacks merit. That's why we have judges and juries to resolve disputes.

I just recently had a retired judge who is now back in priviate practice as an attorney that told me my client's case had no merit and he threatened me with sanctions. My client won the case and got a judgment for the full amount requested. My client's case obviously wasn't that weak or without merit.

If the plaintiff's case is that weak, there are ways for you to end the case early such as a motion for summary judgment. If the case ends in your favor, you might have a claim for abuse of process/malicious prosecution.