1501.Wrongful Use of Civil Proceedings

1. That [name of defendant] was actively involved in bringing [or continuing] the lawsuit;
2. That the lawsuit ended in [name of plaintiff]’s favor;]
3. That no reasonable person in [name of defendant]’s circumstances would have believed that there were reasonable grounds to bring the lawsuit against [name of plaintiff];]
4. That [name of defendant] acted primarily for a purpose other than succeeding on the merits of the claim;
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s harm. [The law requires that the trial judge, rather than the jury, decide if [name of plaintiff] has proven element 2 above, whether the earlier lawsuit ended in [his/her/nonbinary pronoun/its] favor. But before I can do so, you must decide whether [name of plaintiff] has proven the following:
   [List all factual disputes that must be resolved by the jury.]

• The special [verdict/interrogatory] form will ask for your finding on [this/these] issue[s].] [The law [also] requires that the trial judge, rather than the jury, decide if [name of plaintiff] has proven element 3 above, whether [name of defendant] had reasonable grounds for bringing the earlier lawsuit against [him/her/nonbinary pronoun/it]. But before I can do so, you must decide whether [name of plaintiff] has proven the following:

• • [List all factual disputes that must be resolved by the jury.] The special [verdict/interrogatory] form will ask for your finding on
  • [this/these] issue[s].] New September 2003; Revised April 2008, October 2008

Directions for Use

Element 4 expresses the malice requirement.

• Public Employee Immunity. Government Code section 821.6.
•  “Although the tort is usually called ‘malicious prosecution,’ the word ‘prosecution’ is not a particularly apt description of the underlying civil action. The Restatement uses the term ‘wrongful use of civil proceedings’ to refer to the tort.” (5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 486, internal citations omitted.)
•  “To establish a cause of action for the malicious prosecution of a civil proceeding, a plaintiff must plead and prove that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff’s, favor; (2) was brought without probable cause; and (3) was initiated with malice.” (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50 [118 Cal.Rptr. 184, 529 P.2d 608], internal citations omitted.)
• “The remedy of a malicious prosecution action lies to recompense the defendant who has suffered out of pocket loss in the form of attorney fees and costs, as well as emotional distress and injury to reputation because of groundless allegations made in pleadings which are public records.” (Sagonowsky v. More (1998) 64 Cal.App.4th 122, 132 [75 Cal.Rptr.2d 118], internal citations omitted.)
•  “The malicious commencement of a civil proceeding is actionable because it harms the individual against whom the claim is made, and also because it threatens the efficient administration of justice. The individual is harmed because he is compelled to defend against a fabricated claim which not only subjects him to the panoply of psychological pressures most civil defendants suffer, but also the additional stress of attempting to resist a suit commenced out of spite or ill will, often magnified by slanderous allegations in the pleadings.” (Merlet v. Rizzo (1998) 64 Cal.App.4th 53, 59 [75 Cal.Rptr.2d 83], internal citation omitted.)

• “[The litigation privilege of Civil Code section 47] has been interpreted to apply to virtually all torts exceptmalicious prosecution.” (Kimmel v. Goland (1990) 51 Cal.3d 202, 209 [271 Cal.Rptr. 191, 793 P.2d 524].)
•  “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.’ ” (Nunez v. Pennisi (2015) 241 Cal.App.4th 861, 873 [193 Cal.Rptr.3d 912].)
•  “[A] cause of action for malicious prosecution lies when predicated on a claim for affirmative relief asserted in a cross-pleading even though intimately related to a cause asserted in the complaint.” (Bertero, supra, 13 Cal.3d at p. 53.)
• “A claim for malicious prosecution need not be addressed to an entire lawsuit; it may . . . be based upon only some of the causes of action alleged in the underlying lawsuit.” (Franklin Mint Co. v. Manatt, Phelps & Phillips, LLP (2010) 184 Cal.App.4th 313, 333 [109 Cal.Rptr.3d 143].)
•  “[F]avorable termination requires favorable resolution of the underlying action in its entirety, not merely a single cause of action. ‘[I]f the defendant in the underlying action prevails on all of the plaintiff’s claims, he or she may successfully sue for malicious prosecution if any one of those claims was subjectively malicious and objectively unreasonable. But if the underlying plaintiff succeeds on any of his or her claims, the favorable termination requirement is unsatisfied and the malicious prosecution action cannot be maintained.’ ” (Citizens of Humanity, LLC v. Ramirez (2021) 63 Cal.App.5th 117, 128 [277 Cal.Rptr.3d 501], internal citation omitted.)
•  “[A] lawyer is not immune from liability for malicious prosecution simply because the general area of law at issue is complex and there is no case law with the same facts that establishes that the underlying claim was untenable. Lawyers are charged with the responsibility of acquiring a reasonable understanding of the law governing the claim to be alleged. That achieving such an understanding may be more difficult in a specialized field is no defense to alleging an objectively untenable claim.” (Franklin Mint Co.,supra, 184 Cal.App.4th at p. 346.)
•  “Our repeated references in Bertero to the types of harm suffered by an ‘individual’ who is forced to defend against a baseline suit do not indicate . . . that a malicious prosecution action can be brought only by an individual. On the contrary, there are valid policies which would be furthered by allowing nonindividuals to sue for malicious prosecution.” (City of Long Beach v. Bozek (1982) 31 Cal.3d 527, 531 [183 Cal.Rptr. 86, 645 P.2d 137], reiterated on remand from United States Supreme Court at 33 Cal.3d 727 [but holding that public entity cannot sue for malicious prosecution].)“[T]he courts have refused to permit malicious prosecution claims when they are based on a prior proceeding that is

1.  less formal or unlike the process in the superior court (i.e., a small claims hearing, an investigation or application not resulting in a formal proceeding),
2. purely defensive in nature, or
3. (3) a continuation of an existing proceeding.” (Merlet, supra, 64 Cal.App.4th at p. 60.)