Points of Law

How to Prove Malicious Prosecution

By 
Douglas Robbins
May 25, 2021

It is unlawful to file a frivolous and malicious lawsuit. The parties (and lawyers) who bring these baseless suits and then lose, can themselves be sued-back under the theory of the "malicious prosecution" tort. Proving and winning a malicious prosecution action, however is no easy feat.

The Law of Malicious Prosecution

“A successful malicious prosecution action requires proof that the prior litigation was (1) commenced by or at the defendant’s direction, (2) pursued to a termination in the plaintiff’s favor, (3) brought without probable cause, and (4) initiated with malice.”  Siebel v. Mittlesteadt, 12 Cal. Rptr. 3d 906, 912 (2004) (citing Crowley v. Katleman, 8 Cal. 4th 666, 676; Brennan v. Tremco, Inc., 25 Cal. 4th 310, 313 (2001); Pattiz v. Minye, 61 Cal. App. 4th 822, 826 (1998)).

The Defendant LOST the Underlying Lawsuit

First you have to prove that the other party sued you for some reason and then lost. The party could have "lost" because her action was dismissed by the court. Or the party may have voluntarily dismissed her own claims. See Sycamore Ridge Apartments LLC v. Naumann, 157 Cal. App. 4th 1385, 1400 (2007) (“A voluntary dismissal is presumed to be a favorable termination on the merits . . . .”).

Underlying Lawsuit Lacked Probable Cause

Second you must prove the underlying matter was NOT brought with probable cause.  An action lacks in probable cause if a reasonable attorney would not “have thought the claim tenable.”  Leonardini v. Shell Oil Co., 216 Cal. App. 3d 547, 568-69 (1989).  There are two basic ways in which to establish lack of probable cause:  failure to allege a coherent legal theory, and failure to allege truthful facts.

Mere irrational belief in untrue facts is not a defense. See Leonardini, 216 Cal. App. 3d at 568 (finding lack of probable cause where the defendant relies upon facts which she had no reasonable cause to believe to be true).

Malice

Finally, you must prove malice. Malice is not limited to actual hostility or ill will but also exists when the proceedings are instituted primarily for an improper purpose. See Albertson v. Raboff, 46 Cal. 2d 375 (1956); Jacques Interiors v. Petrak, 188 Cal. App. 3d 1363 (1987). “Suits with the hallmark of an improper purpose are those in which:  (1) the person initiating them does not believe that his claim may be held valid; (2) the proceedings are begun primarily because of hostility or ill will; (3) the proceedings are initiated solely for the purpose of depriving the person against whom they are initiated of a beneficial use of his property; (4) the proceedings are initiated for the purpose of forcing a settlement which has no relation to the merits of the claim."  George F. Hillenbrand, Inc. v. Insurance Co. of North America, 104 Cal. App. 4th 784, 814 (2002) (quotation marks omitted); see Albertson v. Raboff, 46 Cal. 2d 375 (1956).

Proving actual malice is always difficult. Malice is primarily a subjective state and evidence of malice may or may not be present in the documentary record. In the absence of documented malice, a defendant is highly unlikely to ever admit that she harbored malice in bringing the underlying action.

But if you can prove that there was zero factual basis to bring the lawsuit (see probable cause discussion above), then courts and juries may be sufficiently persuaded to find malice based on that alone.

Malicious prosecution actions are inherently difficult to win.  But not impossible.

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