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Proceedings That Do Not Support Malicious Prosecution Claims


Although many legal proceedings, civil and criminal, can support a claim for malicious prosecution when the elements of the claim are present, there are some types of proceedings which cannot form the basis of a malicious prosecution action. For various reasons, the law and California courts have placed these actions “off limits” when it comes to malicious prosecution claims, even when the elements of such a claim might otherwise be present.

The actions which cannot support malicious prosecution claims in California include:

Defenses to Legal Actions. Malicious prosecution cannot be turned around and used against the defendant in a legal action based on the type of defense(s) the defendant (or defense counsel) brings. While malicious prosecution might apply to counterclaims, in proper circumstances, the claim does not apply to defenses asserted in response to a plaintiff’s claims.

Small Claims Suits. Malicious prosecution does not apply to, or arise from, suits brought in small claims court.

Secondary Procedural Actions, such as those normally used to implement orders on the merits of the underlying case, do not generally support a claim for malicious prosecution. This is because the malicious prosecution claim, if any, generally relates to and arises from the underlying action and claims, rather than the procedural actions used to carry out and implement the court’s ruling.

Family Law Proceedings. In California, malicious prosecution is not allowed in connection with proceedings in family law courts – at least, as indicated by current authority. Sanctions against parties and their counsel are available in proper circumstances, however.

Dischargeability of Debts in Bankruptcy. Petitions to discharge debts in bankruptcy court do not give rise to malicious prosecution claims. If you are named in a bankruptcy proceeding, whether or not you believe the plaintiff has filed the bankruptcy petition wrongfully, seek immediate counsel from an attorney specializing in bankruptcy.

Complaints and Investigations by the State Bar of California. Unless the investigation results in the issuance of an Order to Show Cause or another formal action which may support a malicious prosecution claim, informal Bar actions and investigations do not generally provide a proper foundation for a claim of malicious prosecution.

Government Claims Against Private Citizens. The government cannot pursue a malicious prosecution claim against a private citizen, but may be able to obtain other remedies, including sanctions and attorney fees, if private citizens bring frivolous or unsupported actions against the government. Always consult an attorney before pursuing any claim against a government entity.

This is not a complete list of situations where malicious prosecution may not be available. Consult an attorney immediately if legal action has been taken or threatened against you. Delay may result in loss of your rights, or negatively impact your ability to defend yourself.


Disclaimer: THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT CONSTITUTE LEGAL ADVICE OR CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN THE AUTHOR AND ANY PERSON. Your rights and experiences may vary. Never use an online article (including 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. Malicious Prosecution claims are complicated and fact-dependent. If you believe you have a claim against someone who wrongfully instituted a legal action against you, or any other type of legal claim, consult an experienced lawyer immediately for an evaluation of your possible rights and claims.

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