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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 test applies a “reasonable attorney standard,” and asks whether “any reasonable attorney” would have believed the plaintiff’s claims to be tenable (meaning “supported by reasonable merit or probable cause”). If so, the lawsuit has the requisite probable cause.

This means that malicious prosecution claims require a finding that no reasonable attorney would have thought the plaintiff’s claims were supported by probable cause.

THE TEST FOR PROBABLE CAUSE IS NOT EVALUATED ONLY ON THE BASIS OF THE PLAINTIFF’S SUCCESS IN THE UNDERLYING ACTION.

If plaintiffs had to prevail for their claims to be supported by probable cause, then every plaintiff who lost a case would be liable for malicious prosecution. Not all failed lawsuits are malicious–and not every plaintiff with reasonable claims will prevail in court.

Probable cause is measured using an objective (“any reasonable lawyer”) test in part to ensure that not all plaintiffs who lose their cases will be sued for malicious prosecution. The objective standard creates a low threshold, in part to prevent the threat of malicious prosecution from having a chilling effect on lawsuits.

While a plaintiff does need to lose the underlying lawsuit in order for a claim of malicious prosecution to arise, the plaintiff’s loss, by itself, is not enough to create a malicious prosecution claim.

If you were sued, and won your case, and believe that the underlying lawsuit was malicious, consult an experienced attorney immediately to obtain an individual review of your legal rights.

 

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Disclaimer: THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT CONSTITUTE LEGAL ADVICE. Your rights and experiences may vary. Never use an article like this one to evaluate your legal claims. Speak with an experienced lawyer promptly to obtain a personalized evaluation of your claims, possible damages, and options. You may lose or compromise your rights if you delay in consulting legal counsel. Legal claims against lawyers or other third parties are a complicated topic. If you believe you have a claim against an attorney who failed to provide you with competent representation, consult an experienced malpractice lawyer immediately for an evaluation of your possible rights and claims.

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