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The Elements of a Malicious Prosecution Claim


In California, claims for malicious prosecution have four primary elements:

1. A legal action commenced or prosecuted without probable cause. Probable cause is generally analyzed on a claim-by-claim basis, meaning that even a single claim brought and prosecuted without probable cause may (but will not always) support a claim for malicious prosecution.

2. The legal action was brought or initiated with malice or malicious intent

3. Final, favorable termination or resolution of the action (or relevant claims) in the defendant’s favor. Essentially, this means the defendant in the underlying action (who becomes the plaintiff 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.

4. Legally recognizable damages. Damages can be economic or non-economic in nature.


Like many other claims that have a “chilling effect” on people’s willingness to make legal claims, and on attorneys’ willingness to take on clients and cases, malicious prosecution is a “disfavored” cause of action in California.

The law, and the courts, exist (in part) to resolve legitimate disputes. These dispute resolution mechanisms suffer when individuals (or entities like corporations) fail to bring legitimate claims due to fear of retaliation — or the costs of defending against retaliatory claims. For this reason, the law disfavors claims that tend to “feel” retaliatory or that wealthier individuals and entities could use to oppress or suppress the claims of those less privileged.

However, calling a claim disfavored does not mean that the claim cannot be brought, or that it does not serve an important legal purpose. Realistically, disfavored status primarily means that people bringing a claim for malicious prosecution should be careful to ensure that the evidence meets all elements of the claim.

Malicious prosecution exists to prevent oppression and repression – specifically, by providing a remedy against those who initiate actions within the legal system for inappropriate purposes. Although disfavored, its existence mirrors that of the motives behind the idea of “disfavoring” claims, and for that reason courts will generally support and uphold malicious prosecution claims when properly brought, pled, and supported by evidence.


Disclaimer: THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT CONSTITUTE LEGAL ADVICE OR CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN THE AUTHOR OR THIS WEBSITE 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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