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What is Malicious Prosecution?


In simple terms, “malicious prosecution” occurs when a plaintiff brings a lawsuit against a defendant with “malice”–specifically, with wrongful ulterior motives–and without probable cause to justify pursuit of a lawsuit. Malicious prosecution takes many forms, and occurs frequently in California (as elsewhere). While proving malicious prosecution can be tricky, malicious prosecution claims can help a wrongfully-sued defendant recover damages and attorney fees from a malicious plaintiff.



For purposes of malicious prosecution claims, “malice” is measured subjectively on a “facts and circumstances basis.” This means the court will evaluate the original plaintiff’s actual motives and purposes in filing the lawsuit on which the malicious prosecution claim is based.

For this purpose, “malice” means either actual ill will or an actual but improper ulterior motive in filing suit. Malice must be proven by evidence, but inferential and circumstantial evidence is permitted–largely because most people will not admit to acting with improper or illegal motives.



Malicious prosecution claims can be brought against the party who wrongfully filed a malicious lawsuit. In proper circumstances, a malicious prosecution claim may also be brought against the lawyer who represented the relevant party. However, the law does not impute a client’s motives to his or her lawyer, which means that the lawyer is not always guilty of malicious prosecution, even if his or her client is found liable.

In order to sue the plaintiff’s lawyer for malicious prosecution, the defendant (in the original action) will have to prove that:

(a) He or she prevailed in the original lawsuit (an element of all claims for malicious prosecution–if the plaintiff prevails, the lawsuit was not malicious).

(b) The plaintiff’s lawyer (in the original lawsuit) filed or pursued the suit with malice and with knowledge (actual or constructive) that the lawsuit was being brought without probable cause.

(c) The lawsuit caused legally recognizable harm to the defendant (generally, money damages or loss of legal rights).

The key is being able to prove that the lawyer was aware of the plaintiff’s malice and the lack of grounds for the underlying lawsuit.

Determining whether you have a case for malicious prosecution involves complex legal analysis; do not attempt to evaluate your legal rights on your own. Consult an attorney promptly if you believe a lawsuit was filed against you for malicious reasons–or if you believe you have a claim against someone else.


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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