Malicious prosecution is a civil cause of action in California that you bring when a person files a frivolous claim against you – a lawsuit was filed not based on merits of the claim, but rather for some ulterior purpose – and you suffered damages as a result.
A claim of malicious prosecution is a civil case, not a criminal one. This claim is meant to deal with filed lawsuits that are:
- filed to harm;
- filed to harass; and
- completely without merit.
When a person is falsely accused of a crime and criminal charges are filed as a result, there is a lot of harm that can result.
When this is the case, the person that was falsely accused can file a civil lawsuit for malicious prosecution against the person that falsely accused him or her of a crime.
Our California personal injury attorneys discuss the following frequently asked questions about malicious prosecution cases:
- 1. What is “malicious prosecution” under California law?
- 2. What does “preponderance of the evidence” mean under California law?
- 3. Can I file a lawsuit due to a frivolous criminal charge?
- 4. Does California favor these types of claims?
- 5. What types of damages can I recover when I win my case?
- 6. How long do I have to sue?
1. What is “malicious prosecution” under California law?
The tort of malicious prosecution is a civil cause of action in California designed to go after individuals who file frivolous lawsuits and cause damages as a result.1
In order to prove these causes of action, the plaintiff (the injured party) is required to prove certain elements.
1.1 What are the elements of this cause of action?
There are four main elements for a malicious prosecution suit in California:
- Lack of Probable Cause: If a claim is brought for an improper purpose or without justification, the case is without probable cause. This is analyzed in each individual case to determine whether the case was brought against a person who should not be named in a lawsuit.
- Malice or Malicious Intent: The litigant who brought the frivolous lawsuit must have done so with some ill purpose, not simply by mistake. Naming the wrong person in a lawsuit by accident would not constitute malice.
- Winning the Frivolous Lawsuit: The plaintiff in the malicious prosecution case must show that he or she won the prior lawsuit at least as to any claims filed under the new lawsuit (“favorable termination”).
- Legal Damages: Both economic and non-economic compensatory damages can be considered and must be proven at trial.
It is important for an injured person to prove all the elements for this claim. Failing to prove any one of the elements of this cause of action will result in a loss at trial.
1.2 What does the jury consider when deciding whether I proved my case?
In order to prove a claim of malicious prosecution against a person, the plaintiff must prove the following by a preponderance of the evidence:
- that the defendant was actively involved in bringing about the lawsuit;
- that prior action ended in the plaintiff’s favor;
- that no reasonable attorney or reasonable person in the defendant’s circumstances would have believed that there were reasonable grounds to bring the underlying action against the plaintiff;
- that the defendant acted primarily for a purpose other than succeeding on the merits of the claim;
- that the plaintiff was harmed by the underlying case; and
- that the defendant’s conduct was a substantial factor in causing the plaintiff’s harm.2
The trial court jury must decide whether each of these elements is proven, except for the second regarding whether the prior lawsuit ended in the plaintiff’s favor. That is decided by the trial judge.3
1.3 What is an example of a case where this would apply?
An example can help illustrate this legal concept.
Example: James and Anita are recently divorced and tensions between them are extremely high. James feels slighted by the divorce proceedings and decides to get back at Anita. James’s car was recently damaged by vandals after it was parked outside of the Bronco’s stadium, but he decides to file a lawsuit against Anita blaming her for the damage to his car.
Anita wins the lawsuit as it is clear from the evidence she did not commit the damage. She can file a malicious prosecution lawsuit against James because he acted with malice to bring a frivolous lawsuit against her, and she suffered financial loss as a result.
2. What does “preponderance of the evidence” mean under California law?
A preponderance of the evidence standard is a less stringent standard than “beyond a reasonable doubt” used in criminal cases.
California law defines preponderance of the evidence to mean:
- that the evidence on one side outweighs or is more than the evidence on the other side.4
The “weight” of the evidence has to do with its power to convince a jury that the evidence is true or correct, not the number of witnesses or amount of evidence.5
If a jury believes that the plaintiff proved his or her case more than 50% of the way, then this burden is met.
3. Can I file a lawsuit due to a frivolous criminal charge?
If a person is falsely accused of a crime in California, the false accuser could be held liable via civil action for malicious prosecution.
A person falsely accused of a crime can file a civil claim if:
- he or she was falsely accused;
- he or she pleads not guilty; and
- the charges are dismissed.6
Example: Susan really hates her neighbor Alice. Susan knows that Alice’s children play soccer and have lots of bruises on their legs, so she calls the police and accuses Alice of abusing her children physically. Susan says she witnessed the abuse herself. The police arrest Alice, and she is charged with a crime.
Eventually, the police and prosecutor realize Alice is innocent and drop all charges. Alice can file a claim for malicious prosecution against Susan.
In the above example, Susan can be sued even though it was the prosecutor that brought the charges. This is because it was her fault that the criminal case was initiated, not the prosecutor’s.7
4. Does California favor these types of claims?
Generally speaking, claims for malicious prosecution are disfavored in California, except under appropriate circumstances. It is not unusual for plaintiffs to lose these cases on summary judgment as a matter of law.
These claims can have a “chilling effect” on legitimate lawsuits by people who have honestly been injured by others. Because of this, the law and California courts look strictly at cases to determine whether a cause of action for malicious prosecution is valid.
Just because California does not “favor” these lawsuits does not mean that a truly wronged person is out of luck. When the right case exists, the law strictly protects the injured party because not only is a frivolous case harmful to the injured person, but it is also harmful to the administration of justice and the American system of law.8
5. What types of damages can I recover when I win my case?
When a person is successful in his or her malicious prosecution claim, the person can recover both economic and non-economic damages.
Economic damages that can be awarded include but are not limited to:
- attorney fees,
- lost wages due to time spent in trial or incarceration,
- costs of litigation,
- cost of bail bond,
- medical or psychological therapy costs,
- court fees and expenses, and
- other financial loss.
Non-economic damages the plaintiff can win include but are not limited to:
- pain and suffering,
- loss of reputation,
- embarrassment, and
- emotional distress.
The plaintiff may also be able to recover punitive damages, which car far exceed compensatory damages.
With the help of an experienced California attorney, an individual who has suffered as the result of a frivolously filed civil or criminal lawsuit can prove his or her damages and receive compensation for the losses he or she has suffered.
6. How long do I have to sue?
There is a one or two-year statute of limitations to bring a malicious prosecution suit depending on the case. The one-year limit usually applies to cases where the defendant is an attorney.9
For questions about malicious prosecution claims or to confidentially discuss your case with one of our skilled California personal injury attorneys, do not hesitate to contact us at the Shouse Law Group.
We have local law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities. We appear in both state superior courts, appellate courts, and United States federal courts.
- Proceeding on which malicious prosecution action may be based, generally, Romualdo P. Eclavea, J.D.; John A. Gebauer, J.D.; Alys Masek, J.D.; Kimberly C. Simmons, J.D.; Susan L. Thomas, J.D.; and Mary Ellen West, J.D. See also Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 881; see also Zamos v. Stroud (2004) 32 Cal.4th 958, 970.
- Judicial Council of California Civil Jury Instructions, CACI No. 1501. Wrongful Use of Civil Proceedings.
- Same as 2.
- Environmental Law Foundation v. Beech-Nut Nutrition Corp., 1st Dist. Ct. App., 235 Cal.App.4th 307 (“Preponderance of the evidence means ‘ “that the evidence on one side outweighs, preponderates over, is more than, the evidence on the other side, not necessarily in number of witnesses or quantity, but in its effect on those to whom it is addressed.”)
- Supra. See also Tri-Union, (2009, Court of Appeal) 171 Cal.App.4th 1549 at p. 1567.
- Singleton v. Perry, 45 Cal. 2d 489 (California Supreme Court, 1955); Twyford v. Twyford, 63 Cal. App. 3d 916 (3d Dist. 1976).
- Nunez v. Pennisi (2015) 241 Cal.App.4th 861 (“Liability for malicious prosecution is not limited to one who initiates an action. A person who did not ﬁle a complaint may be liable for malicious prosecution if he or she ‘instigated’ the suit or ‘participated in it at a later time.’ ”
- See California’s Anti-SLAPP statute (California Code of Civil Procedure 425.16).
- See CCP 340.6; CCP 335.1.