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Malicious Prosecution in California

In California malicious prosecution is a civil cause of action aimed to go after individuals who file frivolous lawsuits and cause damages as a result.

Malicious prosecution claims are having a chilling effect on an ordinary citizen’s readiness to bring a dispute to the court, and are often characterized as a “disfavored cause of action.”

Elements of Malicious Prosecution in California:

An injured person must be able to prove all the elements for this claim. Failing to prove any one of the elements of this cause of action will result in a loss at trial.

  • Legal action prosecuted or commenced without probable cause: If the claim is brought without justification, the case is without probable cause. Generally probable cause is analyzed on a claim-by-claim basis, meaning that every claim brought and prosecuted without probable cause can support a claim for malicious prosecution.
  • Legal action was initiated with malice or malicious intent
  • Final resolution of the claim in the defendant’s favor. The defendant in the malicious prosecution action must prevail on the underlying suit – at least with regard to the causes of action for which malicious prosecution is claimed.
  • Legal Damages: The actions cause economic and non-economic, which can be considered and must be proven at trial.

What Must the Plaintiff Prove?

According to CACI 1501 to prove a claim of malicious prosecution the plaintiff must be able to show the following:

  • Defendant was actively involved in bringing about the lawsuit
  • Lawsuit ended in the plaintiff’s favor
  • No reasonable person in the defendant’s circumstances would have believed that there was a reasonable ground to bring the lawsuit against the plaintiff
  • Defendant acted mainly for a purpose other than succeeding on the merits of the claim
  • Plaintiff was harmed as a result of defendant’s conduct

Proceedings Which Give Rise to Malicious Prosecution Claims:

  • Judicial arbitrations
  • Private arbitration agreements which obviously allow for the malicious prosecution remedy
  • Probate proceedings
  • Declaratory relief claims
  • Order to Show Cause proceedings, associated with pending litigation (except in family law proceedings)

Who Can Be Liable for Malicious Prosecution?

  • A person, who unsuccessfully prosecuted an underlying action as an individual party plaintiff can be considered liable for malicious prosecution. Though, the degree of personal liability of directors and officers of a corporate plaintiff is not clear. CACI 1501 references those who are “actively involved in bringing or continuing the lawsuit,” which can include those who become later involved in the continued prosecution of the prior action.
  • The attorney who originally initiated the underlying action is potentially liable for malicious prosecution. Successor or later involved counsel who associate or into the underlying action are also subject to liability.

Types of Damages Which the Victim Can Recover in Successful Malicious Prosecution Claim:

  • Pain and suffering
  • Loss of reputation
  • Emotional distress
  • Embarrassment
  • Attorney fees
  • Lost wages
  • Costs of litigation
  • Medical and psychological therapy costs
  • All court fees and expenses

Malicious Prosecution Video


Do you feel as though you or a loved one have been a victim of malicious prosecution in California? KAASS Law would be happy to take a look into your situation to see what we can do to help you out. Give us a call now at (310) 943-1171 or get in touch by filling out the form below.

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