I evicted tenant for breach of contract. He filed Civil case against me. I spent on Court and attorney fees. Later his attorney dismissed the case without prejudice. Now I need to recover my expenses. My legal counsel said I can sue both plaintiff and his attorney. Can I sue both of them for full amount each? In small claims?
So was your original lawsuit brought against you in Civil - Limited ($0 - $25,000) or Civil - Unlimited ($25,000 - No Limit)? Either way, you can only recover attorneys fees in California if there was a provision in your contract that allowed for the prevailing party to recover attorneys fees. If your contract had such a provision, then you are entitled to recover them as the "prevailing party". The fact that he dismissed the case is akin to you winning, or prevailing. You should also be able to recover your "expenses", or Costs. If you did not utilize Code of Civil Procedure section 998 (which may have been inappropriate or unnecessary in your case) then you can recover your ordinary costs, such as filing of your Answer, deposition costs, filing fees, etc. You wouldn't be able to recover money spent on experts without utilizing Section 998.
How long ago was it dismissed? To me, the with or without prejudice issue is not too big of a deal. Depending on why it was dismissed, it is highly unlikely they will ever be able to bring it again.
As for suing them, the attorneys fees and costs are recoverable against the tenant, not the attorney. Unless, however, you are intending to sue the tenant and attorney for abuse of process, for example, because that could be brought against both of them. You could also seek sanctions if you have not blown the time deadline, such as Code of Civil Procedure Section 128.7. There are other causes of action and ways to get sanctions against the attorney and the tenant. But either way, you should not be able to recover what you are owed in full from both of them. That would result in double recovery for you and that is not fair or equitable.
Instead, consider your options to sue them for their malicious sounding lawsuit, and think of causes of action like intentional infliction of emotional distress, which comes with punitive damages [damages designed to PUNISH the defendant(s)], where you could get well about the double recovery you spoke of in your question.
Clearly you need an attorney's help for this, but it sounds like you already have one. Always feel free to get second opinions if you doubt your lawyer. The fact that you reached out on here is interesting. I would hate to think that my clients didn't trust me and my advice and sought confirmation of what I said in a public forum like this. But good for you in being thorough! Best of luck.
You MAY be able to sue the tenant for attorney fees (but you won't get all your expenses, just the attorney fees). Depends on your lease agreement with the tenant.
You can't sue the tenant's attorney unless the attorney has committed an abuse (e.g. KNOWINGLY filing a false complaint etc.) of the process.
Work with your existing attorney--he/she know whether you have a shot at either and how you need to proceed to ensure you do it properly.
