Author Archives: Robert Ross
Defenses to Malicious Prosecution: The SLAPP Statute
One of the most common defenses to a malicious prosecution action lies in California Code of Civil Procedure § 425.16, also known as the SLAPP Statute. What is the SLAPP Statute? The Code of Civil Procedure states that “A cause of action against a person arising from any act … in furtherance of the person’s right… Read More »
Proving Malice in Malicious Prosecution, Part 2
Malicious prosecution involves the wrongful (malicious) institution of a legal action, without probable cause, in an attempt to use the justice system for something other than its intended function. A normal lawsuit involves the attempt to redress a legally-recognized wrong, either by obtaining a judgment for damages, seeking declaratory relief, or other legally-permitted methods…. Read More »
Proving “Malice” in Malicious Prosecution Actions
Malicious prosecution involves the wrongful use of the justice system to punish, harass, or oppress another person. To prove malicious prosecution, the claimant (who was generally the defendant in the allegedly malicious action which prompted the malicious prosecution suit) must prove all four of the following elements: 1. Commencement of a civil (or criminal) legal… Read More »
Proving Lack of Probable Cause in Malicious Prosecution Actions
A primary element of malicious prosecution claims is lack of probable cause supporting the underlying suit. The plaintiff in the malicious prosecution action normally has the burden of proving lack of probable cause, and can prove it in a variety of ways: Lack of Probable Cause For One or More Claims. To avoid a malicious prosecution… Read More »
Evaluating “Probable Cause” in Malicious Prosecution Cases
MALICIOUS PROSECUTION REQUIRES FILING A LAWSUIT WHICH LACKS “PROBABLE CAUSE.” The “probable cause” required to support a lawsuit, and avoid a claim of malicious prosecution, is measured under an objective standard. The California Supreme Court established an objective test for frivolous lawsuits, which also applies to probable cause for purposes of malicious prosecution. The… Read More »
Who Can Be Sued For Malicious Prosecution?
After conclusion of a lawsuit or proceeding that creates a claim of malicious prosecution, injured parties often wonder whether the person who wrongfully sued them can be forced to answer for the malicious lawsuit or other legal proceeding. So, who can be sued for malicious prosecution? 1. Individuals. Individuals who file lawsuits or other legal… Read More »
Not All Proceedings Will Support Malicious Prosecution Claims
The tort of malicious prosecution applies to many types of cases, but not every case will support a claim of malicious prosecution. In addition to meeting the elements of the tort itself, the underlying case or proceeding that gave rise to the malicious prosecution claim must be a proper type of case–meaning one that the… Read More »
What Kinds of Proceedings Can Trigger a Malicious Prosecution Claim?
Malicious prosecution requires “commencing and pursuing” a legal action without probable cause. Most people think a “legal action” means a lawsuit–and it often does–but lawsuits are not the only “actions” that support a claim of malicious prosecution. Let’s take a look at some of the different varieties of legal actions that may support a… Read More »
What is “Abuse of Process”?
ABUSE OF PROCESS INVOLVES A WRONGFUL USE OF THE LEGAL SYSTEM People often confuse “abuse of process” claims with causes of action for malicious prosecution. Although abuse of process is a separate tort (the legal term for a “civil wrong” against another person), the distinction between abuse of process and malicious prosecution can be confusing for non-lawyers… Read More »
Why is Malicious Prosecution a “Disfavored” Claim?
WHAT IS A “DISFAVORED CLAIM”? “Disfavored claim” or “disfavored cause of action” is a legal term most commonly used to describe or refer to claims which might have a “chilling effect” on an ordinary person’s willingness or ability to bring a lawsuit against another person. For example: the threat of being sued for malicious… Read More »
