Legal Question in Civil Litigation in California

Re: Can I sue for Defamation?

No. The litigation privilege of Civil Code Section 47 bars such a defamation claim. However, if you prevail in defending against the claim, and if the claim was brought without probable cause, you could sue for malicious prosecution.

Re: Can I sue for Defamation?

There is a another cause of action that may be better suited for your claims. It is a tort cause of action named Wrongful Institution of a Civil Proceeding. First, you must have the negligence claim stricten. It is a complicated process, therefore, you will want to engage an attorney while, I presume your insurance company handles the car accident, to coardinate and apply pressure on the other side to dismiss the case. If you need assistance, feel free to contact this office.

Re: Can I sue for Defamation?

No, you would have to bring a separate action for malicious prosecution, which is a tort. If you prevail, you could be entitled to compensation for the emotional distress it caused you and punitive damages. A lawyer would be be suited to handle a complicated action like that, though.

Re: Can I sue for Defamation?

Claims made in litigation are privileged and cannot support a defamation lawsuit.

The fact that the police officer who witnessed the accident says you were not at fault will be very helpful to you, but his opinion is not legally binding on the court or on anyone else. It is possible that a court will find you partially (or even entirely) at fault and that you will have to pay some damages. You should tell your insurance company about the lawsuit against you; it should then provide a lawyer to defend you.

Even if you could sue for defamation you probably would not want to add that claim to your existing small claims lawsuit. The total amount you can recover in such a suit is capped at $5,000, and part of that amount will be consumed by your insurance deductible. Additionally, because his lawsuit is not part of the same incident as the collision there would be no need to use a single lawsuit to address both matters. Then there is the fact that defamation claimes are relatively fact-intensive and are not well-suited to the small claims court.

The other responses have suggested suing the pedestrian for malicious prosecution (which, as one response noted, is actually called malicious institution of civil proceeding). This isn't necessarily a wise thing to do. To win such a case you will have to prove that the plaintiff had no reason to believe you might be liable to him at all. Given that the police officer's opinion is not enough to prove this point, you may have a very hard time winning such a case. And even if you do win, the pedestrain may not have enough assets to satisfy the judgment. You will have spent a lot of money getting the judgment, and if you can't collect on it the lawsuit will have left you worse off and not better. Besides, if it looks like you won't be able to collect, you probabaly won't be able to get an attorney to take the case on a contingency basis.