Published 8/16/2021; First Dist., Div. Two Docket No.: A161417; 67 Cal.App.5th 918

 IT WAS AN ABUSE OF DISCRETION AND VIOLATION OF A PARENT’S DUE PROCESS RIGHTS FOR THE JUVENILE COURT TO AMEND THE ALLEGATIONS TO CONFORM TO PROOF IN SUCH A WAY THAT IT 6 MATERIALLY ALTERED THE ALLEGATIONS BY INCLUDING FACTS AND LEGAL THEORIES NOT INCLUDED IN THE ORIGINAL PETITION.

On October 29, 2019, the agency filed a petition under section 300 subdivisions (b) and (d), alleging that I.S. was sexually abused by D.B., a member of the household and maternal aunt’s boyfriend, and that mother knew of the abuse. I.S. reported that D.B. sexually abused her the year prior, texted her not to tell anyone, and then she told her mother two days later. I.S. showed mother the text messages, and mother eventually held a meeting with the other adult family members who lived in the home, including D.B. and I.S., to discuss what occurred. At the meeting mother decided to have D.B. move out of the home. The other family members stopped speaking to I.S. Mother later let D.B. move back in. I.S. felt anxious and scared with D.B. living in the home again. Mother reported that I.S. was a liar and confirmed D.B. lived in the family home. At the detention hearing, I.S. was detained. The agency filed a report for the adjudication in which I.S. was consistent in her statements of the sexual abuse, and mother was consistent in her denial that anything happened to I.S. At the adjudication, the parties informed the juvenile court that they reached a negotiated agreement, but the court rejected the settlement because it took the responsibility for what happened away from the mother. After hearing testimony, the juvenile court sustained the b-1 allegation, but amended it to conform to proof. In conforming to proof, the juvenile court added six paragraphs including factual and legal theories not in the original petition, including emotional abuse by the mother. The court’s written order dismissed the d-1 count. At the dispositional hearing almost two months later, the court was asked to clarify its ruling on the d-1 allegation, and the court agreed it was not clear and was going to issue a clarifying order. At the disposition hearing two weeks later the juvenile court ordered the d-1 allegation sustained but amended it to conform to proof, adding five paragraphs adding factual and legal theories that were not in the original petition. The juvenile court removed I.S. from her mother’s care. Mother appealed.

Reversed. Mother’s due process was violated when the juvenile court amended the petitions to conform to proof by including facts and legal theories that were not in the original petition. A juvenile court may amend a petition to conform to the proof presented at a jurisdictional hearing if the amendment is immaterial, but amendments that are material or prejudicial are not allowed. An example of an allowable amendment is the substituting of one word for another where the variance between the words was minimal. (See In re Jessica C. (2001) 93 Cal.App.4th 1027 [holding the word “touching” could be substituted for “penetrating” in a sexual abuse case because the basic allegation remained the same].) However, if the amendments to conform to proof change the grounds for establishing jurisdiction, they are not allowable. (See In re G.B. (2018) 28 Cal.App.5th 475 (G.B.)
[holding that it was error to amend the petition to establish jurisdiction under a different legal theory than the original allegations, make a non-offending parent offending in the amended petition, and to base it all on facts not at issue in the original petition].)
This case is more akin to G.B. in that the amended allegations asserted a new legal theory, namely that of emotional abuse, and was therefore not an allowable amendment resulting in the same basic allegations. Further, one of the amendments asserted the legal theory that mother might have known of the abuse if she conducted a reasonable investigation of the text messages, whereas the original petition alleged mother knew of the abuse. With this different legal theory at play, mother possibly would have altered her defense at trial. Thus, the amendments materially varied from the original petition. The principle that a juvenile court’s order asserting jurisdiction can be affirmed if there are multiple grounds for jurisdiction and any one of the statutory bases is supported by substantial evidence is not appropriate in this case because of the irregular way in which the juvenile court sustained the d-1 allegation, even though mother did not challenge that I.S. was sexually abused by a member of the household. First, the juvenile court dismissed the d-1 allegation, then two months later indicated that it was going to sustain it, and then materially amended it. While a juvenile court may sua sponte change any court order under section 385, the procedural requirement to do so is to provide notice and an opportunity to be heard to the parties. Mother had no notice of the amendments and was not able to properly present a defense. Mother’s fundamental due process rights were violated when she did not receive notice or a fair opportunity to be heard. (KH)

cited https://www.clccal.org/blog/dependency-legal-news-vol-17-no-6/

IN RE I.S.

Contra Costa Cnty. Children & Family Servs. Bureau v. R.S. (In re I.S.)

Opinion

 Interference with Parent / Child Relationship

Due Process Violation of Parental Rights

I        Introduction

             Parents and children possess a constitutionally protected liberty interest in companionship and society with each other.  Smith v. City of Fontana, 818 F.2d 1411, 1418 (9th Cir. 1987), overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999) (en banc).  This liberty interest is rooted in the Fourteenth Amendment, which states in relevant part that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law.”  U.S. Const. amend. XIV, § 1. 

The protected liberty interest is independently held by both parent and child.  City of Fontana, 818 F.2d at 1418.  A parent’s right includes a custodial interest (but only while the child is a minor), and a companionship interest (even after a child reaches the age of majority).  Id. at 1419; see, e.g., Strandberg v. City of Helena, 791 F.2d 744, 748 n.1 (9th Cir. 1986) (recognizing that parents of deceased 22-year-old son could not allege constitutional right to parent a minor child, but could claim violation of right to companionship and society).  Children, including adult children, may claim a violation of their right to familial association, but that right includes only a companionship interest.  City of Fontana, 818 F.2d at 1419; Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 371 (9th Cir. 1998).  State interference with these liberty interests may give rise to a Fourteenth Amendment due process claim that is cognizable under 42 U.S.C. § 1983.  Kelson v. City of Springfield, 767 F.2d 651, 654 (9th Cir. 1985).  Parents and children raising such claims are alleging a deprivation of their own liberty rights; they are not asserting the rights of the decedent or injured child or parent.  Id. at 653 n.2. 

            The mere existence of a biological link between parent and child is not a sufficient basis to support a Fourteenth Amendment claim for loss of familial relationship rights.  Wheeler v. City of Santa Clara, 894 F.3d 1046, 1058 (9th Cir. 2018).  In order to bring a Fourteenth Amendment due process claim, the parent and child must have relationships

(click here to see what the state is fucking up with negligence and hate and vindictiveness)

“which reflect some assumption ‘of parental responsibility.’”  Kirkpatrick v. County of Washoe, 843 F.3d 784, 789 (9th Cir. 2016) (en banc) (“It is when an unwed father demonstrates a full commitment to the responsibilities of parenthood by coming forward to participate in the rearing of his child that his interest in personal contact with his child acquires substantial protection under the due process clause.”) (internal quotation marks and brackets omitted).  Parents can bring a Fourteenth Amendment due process claim only if they demonstrate “consistent involvement in a child’s life and participation in child-rearing activities.”  Wheeler, 894 F.3d at 1058.  Children must make the same showing.  See id. (holding relationship between child adopted as infant and biological mother insufficient for child to bring Fourteenth Amendment loss of companionship claim).

            Other familial relationships may not give rise to a protectable liberty interest.  The extent to which grandparents have such an interest has not been decided, although a noncustodial grandparent generally does not have a protectable interest.  See Miller v. California, 355 F.3d 1172, 1176 (9th Cir. 2004).  Siblings cannot bring claims under the Fourteenth Amendment for the deprivation of their liberty interest arising out of their relationship with their sibling.  Ward v. City of San Jose, 967 F.2d 280, 284 (9th Cir. 1991), as amended on denial of reh’g (June 16, 1992).

II.    Two Types of Claims: Procedural and Substantive

            A claim of interference with the parent/child relationship in violation of the Fourteenth Amendment may be brought as either a procedural due process claim or a substantive due process claim.  See City of Fontana, 818 F.2d at 1419–20.

            A procedural due process claim may arise when the state interferes with the parent-child relationship for the purpose of furthering a legitimate state interest.  See id. at 1419.  Thus, “where the best interests of the child arguably warrants termination of the parent’s custodial rights, the state may legitimately interfere so long as it provides ‘fundamentally fair procedures.’”  Id. (quoting Santosky v. Kramer, 455 U.S. 745, 754 (1982)).

            A substantive due process claim may arise when the state interferes with the parent-child relationship “for purposes of oppression.”  Id. (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)).  For instance, “the state has no legitimate interest in interfering with this liberty interest through the use of excessive force by police officers.”  Id. at 1419–20.  Each type of claim is evaluated under a distinct standard.

A. Standard for Procedural Due Process Violation 

            Procedural due process claims typically arise when a state official removes a child from a parent’s care.  For such claims, “[t]he Fourteenth Amendment guarantees that parents will not be separated from their children without due process of law except in emergencies.”  Rogers v. County of San Joaquin, 487 F.3d 1288, 1294 (9th Cir. 2007) (quoting Mabe v. San Bernardino Cnty., Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1107 (9th Cir. 2001)).  Removing a child from a parent’s custody violates the Fourteenth Amendment unless the removal (1) is authorized by a court order (typically a warrant); or (2) is supported by “reasonable cause to believe that the child is in imminent danger of serious bodily injury,” and the scope of intrusion does not extend beyond that which is reasonably necessary.  Id. (quoting Mabe, 237 F.3d at 1106).  Even if the removal is pursuant to a court order, the right may be violated if the court order was obtained through judicial deception, that is, if a plaintiff alleges “(1) a misrepresentation or omission (2) made deliberately or with a reckless disregard for the truth, that was (3) material to the judicial deception.”  David v. Kaulukukui, 38 F.4th 792 (9th Cir. 2022).  “A misrepresention or omission is material if a court would have declined to issue the order had [the defendant] been truthful.” Id.  The “mere threat of separation” is insufficient to give rise to a Fourteenth Amendment claim “based on a minor being separated from his or her parents.”  Dees v. County of San Diego, 960 F.3d 1145, 1152 (9th Cir. 2020).

            Removing children from their parents’ custody without court authorization is permissible when officials have reasonable cause to believe that the children are at imminent risk of serious bodily injury or molestation in the time it would take them to get a warrant.  Rogers, 487 F.3d at 1294–95; see also Wallis v. Spencer, 202 F.3d 1126, 1138 (9th Cir. 2000).  Serious allegations of abuse must be investigated and corroborated before they will give rise to “a reasonable inference of imminent danger sufficient to justify taking children into temporary custody.”  Demaree v. Pederson, 887 F.3d 870, 879 (9th Cir. 2018) (per curiam) (internal quotation marks omitted).  There must be “specific, articulable evidence that provides reasonable cause to believe that a child is in imminent danger of abuse.”  Wallis, 202 F.3d at 1138; see also Sjurset v. Button, 810 F.3d 609, 622 (9th Cir. 2015) (holding officials’ belief of imminent danger objectively reasonable where mother who had tested positive for drugs and had previously been convicted of child endangerment prevented officers from verifying child’s safety, and officials could not have obtained court order for 36 hours).

            Conversely, removing children from their parents’ custody without a court’s authorization can give rise to a violation of a liberty interest when there is no imminent risk of physical or sexual abuse.  Demaree, 887 F.3d at 879 (holding officials unconstitutionally removed children from parents’ custody because officials’ fear of “sexual exploitation” based on nude photos of children was not objectively reasonable since photos were not distributed, did not depict sexual conduct, and did not reflect risk of physical sexual abuse).  Evidence that children are malnourished, their home is disorderly or unsanitary, or that their parents lack health insurance or fail to provide them daycare does not constitute exigent circumstances.  Rogers,487 F.3d at 1296.

B.           Standard for Substantive Due Process Violation 

            A substantive due process claim of impermissible interference with familial association arises when a state official harms a parent or child in a manner that shocks the conscience.  Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008). “[O]nly official conduct that ‘shocks the conscience’ is cognizable as a due process violation.  Id. (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)).

            A Fourteenth Amendment substantive due process claim is distinct from a claim arising under the Fourth Amendment.  See Lewis, 523 U.S.at 843.  A Fourth Amendment excessive force claim requires the victim to establish that the officer’s conduct was objectively unreasonable.  Ochoa v. City of Mesa, 26 F.4th 1050, 1056 (9th Cir. 2022).  But that Fourth Amendment standard is less demanding than the “shocks the conscience” standard that applies to substantive due process familial association claims under the Fourteenth Amendment brought by the parent or child of the victim.  See id. at 1056-57.  Accordingly, “it may be possible for an officer’s conduct to be objectively unreasonable under the Fourth Amendment yet still not infringe the more demanding standard that governs substantive due process claims under the Fourteenth Amendment.”  Id. at 1057(internal quotation marks and brackets omitted).

            “There are two tests used to decide whether officers’ conduct ‘shocks the conscience.’”  Id. at 1056.  A state official’s conduct may shock the conscience if (1) the official acted with a “purpose to harm” the victim for reasons unrelated to legitimate law enforcement objectives; or (2) the official acted with “deliberate indifference” to the victim.  Porter, 546 F.3d at 1137.  Which test applies turns on the specific circumstances of the underlying events in each case.  If the encounter at issue escalated so quickly that the officer had to make a snap judgment, the plaintiff must show the officer acted with a “purpose to harm.”  See id.  However, if the situation evolved within a time frame that allowed officers to reflect before acting, the plaintiff must show the officer acted with “deliberate indifference.”  See id. 

lets pause to learn more about deliberate indifference click here to educated yourselves

now lets continue shall we……………

1. Purpose to Harm Standard

            The Supreme Court developed the purpose-to-harm standard in recognition that not every harm caused by government officials gives rise to a Fourteenth Amendment claim.  See Lewis, 523 U.S. at 848–49.  For instance, “when unforeseen circumstances demand an officer’s instant judgment, even precipitate recklessness fails to inch close enough to harmful purpose” so as to shock the conscience.  Id. at 853.  These circumstances may include high speed police chases, see id. at 855, responding to a gunfight in a crowded parking lot, Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 368 (9th Cir. 1998), and other situations requiring split-second decisions, where the officer did not have a “practical” opportunity for “actual deliberation,” Lewis,523 U.S. at 851.

            In Porter v. Osborn, 546 F. 3d 1131 (9th Cir. 2008), the Ninth Circuit held that the “purpose to harm” standard applied to a Fourteenth Amendment familial association claim brought by the surviving parents of a motorist who was shot and killed, “[d]ue to the rapidly escalating nature of the confrontation” with the motorist, such that actual deliberation was not practical.  Id. at 1137.  Similarly, in Ochoa v. City of Mesa, 26 F.4th 1050 (9th Cir. 2022),the Ninth Circuit applied the purpose to harm standard to a familial association claim brought by the surviving relatives of a suspect who was fatally shot after he took a step towards officers while carrying a knife.

            By contrast, when an officer shot twelve rounds at an occupied vehicle even though the car presented no immediate threat, the Ninth Circuit held that the jury could have reasonably concluded that the officer “acted with the purpose to harm unrelated to a legitimate law enforcement objective,” and upheld the jury’s verdict for the suspect’s surviving children.  A.D. v. Cal. Highway Patrol, 712 F.3d 446, 458 (9th Cir. 2013).

            Zion v. County of Orange exemplifies the distinction between legitimate and illegitimate official conduct.  The officer in Zion did not violate the Fourteenth Amendment when he emptied his weapon at a suspect who was fleeing after stabbing an officer because the officer had no time for reflection, and “[w]hether excessive or not, the shootings served the legitimate purpose of stopping a dangerous suspect.”  874 F.3d 1072, 1077 (9th Cir. 2017).  However, there was a genuine issue of fact as to whether the officer acted with a purpose to harm when, after the suspect was lying on the ground in a fetal position, the officer walked around in a circle for several seconds, then took a running start and stomped on the suspect’s head three times.  See id. (reversing summary judgment in favor of officer defendant).

2.      Deliberate Indifference Standard   

            The deliberate indifference standard applies in situations where the officers who caused the harm to the parent or child acted (or failed to act) in a situation when “actual deliberation is practical.”  Lewis, 523 U.S. at 851.  When officials have “time to make unhurried judgments,” and “extended opportunities to do better,” but unreasonably allow harm to occur, then their “protracted failure even to care” can shock the conscience, thus giving rise to a substantive due process claim.  Id.  “Actual deliberation” requires a longer period of time than “deliberation” as that term is used in homicide law.  See id. at 851 n.11 (“By ‘actual deliberation,’ we do not mean ‘deliberation’ in the narrow, technical sense in which it has sometimes been used in traditional homicide law.”).  Because it shocks the conscience for officials to cause harm to a parent or child with deliberate indifference, a substantive due process claim of impermissible interference with familial association can arise in these circumstances.  Porter, 546 F.3d at 1137.

            The deliberate indifference standard often applies in cases of state officials’ inaction or failure to protect.  Although the Fourteenth Amendment’s due process clause generally does not create an affirmative right to governmental aid, see DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 195–96 (1989), a state actor’s failure to protect “may give rise to a § 1983 claim under the state-created danger exception when the state affirmatively places the plaintiff in danger by acting with deliberate indifference to a known or obvious danger,” Herrera v. Los Angeles Unified Sch. Dist., 18 F.4th 1156, 1158 (9th Cir. 2021) (internal quotation marks omitted).  A state actor’s failure to protect may also create liability under § 1983 if the state “takes a person into its custody and holds him there against his will.”  DeShaney, 489 U.S. at 199–200.  The types of custody giving rise to the duty to protect are “incarceration, institutionalization, or other similar restraint of personal liberty.”  Id. at 200.

            The deliberate indifference standard as it applies in cases alleging a deprivation of a familial relationship is a subjective standard.  For a defendant to act with deliberate indifference, he must “recognize the unreasonable risk and actually intend to expose the [victim] to such risks without regard to the consequences to the [victim].”  Herrera, 18 F.4th at 1158(internal quotation marks and brackets omitted).  “Ultimately, a state actor needs to know that something is going to happen but ignore the risk and expose the [victim] to it.”  Id. at 1158–59 (internal quotation marks and brackets omitted).

            Herrera shows how the subjective standard applies to parents’ claim for deprivation of familial relationship.  In Herrera, parents claimed that a school aide’s failure to protect their autistic child from drowning in a park swimming pool during a school outing was actionable under the state-created danger exception, and gave rise to a § 1983 claim for deprivation of a parent-child relationship in violation of the Fourteenth Amendment.  See id. at 1161.  The Ninth Circuit held that the school aide had not acted with deliberate indifference because he was unaware of any immediate danger to the child (mistakenly thinking the child was in the locker room rather than in the pool), and there was therefore no evidence that the aide subjectively recognized the risk to the child.  See id. at 1162.  Accordingly, no reasonable jury could conclude that the parents’ Fourteenth Amendment rights were violated. See id.; see also Patel v. Kent Sch. Dist., 648 F.3d 965, 971–72 (9th Cir. 2011) (holding that schoolteacher did not violate student’s Fourteenth Amendment rights by failing to protect the student from having sex with another student in restroom, because there was no proof that teacher knew about any immediate risk).

In cases where the victim is a detainee and the plaintiff is the victim or the victim’s estate, the Ninth Circuit has applied an objective standard for the deliberate indifference inquiry. See Castro v. County of Los Angeles, 833 F.3d 1060, 1070-71 (9th Cir. 2016) (en banc).  Under that standard, a pretrial detainee can maintain a Fourteenth Amendment claim by proving the conduct was objectively unreasonable.  See id. at 1071.  The objective standard has been extended to cases where the detainee is in an immigration facility, see Roman v. Wolf, 977 F.3d 935, 943 (9th Cir. 2020) (per curiam), and where the detainee alleges that state officials failed to provide medical care, see Gordon v. Cnty. of Orange, 888 F.3d 1118, 1122-24 (9th Cir. 2018). See Instructions 9.29 (Particular Rights—Fourteenth Amendment—Pretrial Detainee’s Claim of Excessive Force), 9.30 (Particular Rights—Fourteenth Amendment— Pretrial Detainee’s Claim re Conditions of Confinement/Medical Care), 9.31 (Particular Rights—Fourteenth Amendment—Pretrial Detainee’s Claim of Failure to Protect), and 9.32A (Particular Rights—Fourteenth Amendment—Due Process—Civil Commitment).

            In considering whether the objective or subjective standard applied, Herrera discussed the objective standard as applied in Castro and its progeny, but concluded that the subjective standard for deliberate indifference applied because the victim in the case was not a detainee.  See 18 F.4th at 1160 (“Erick was not detained at the time of his death . . . . We therefore apply a purely subjective standard, consistent with our precedent, requiring the plaintiff to show that the state actor recognized an unreasonable risk and actually intended to expose the plaintiff to such risk.”).  Herrera’s analysis suggests that the objective standard applies in a case alleging a deprivation of familial association when the victim is a detainee.  However, the Ninth Circuit has not squarely addressed that question. Revised Sept. 2022 cited https://www.ce9.uscourts.gov/jury-instructions/node/715   and can be downloaded here

source

read another amendment section under the 5th amendment below 

Amdt 5.4.5.6.2 Parental and Children’s Rights – under the Fifth Amendment:

read MORE here about Father’s Rights and Parents Rights THE CONSTITUTIONAL FRAMEWORK OF FATHERS’ RIGHTS

We also have the GrandParents Rights To Visit Family Law Packet including the FL-375 Form Needed to File

to fully understand how any of your actions will be used against you as government officials please read more here.  https://goodshepherdmedia.net/9-32-particular-rights-fourteenth-amendment-interference-with-parent-child-relationship/  about your vindictiveness to an oppositional stance to your incompetance has caused you to leave law and become victims of your own vengeance and incompetence and failure to do the right thing, God is KING, now you punitive measures to control someone who clearly and factually can disapprove all your actions and understands more of RIGHT VS WRONG than you all. Children deserve parents who actually have the Childs best interest which in the eyes of the state and common good https://goodshepherdmedia.net/9-32-particular-rights-fourteenth-amendment-interference-with-parent-child-relationship and commonly morally conscious and good people NOTHING HAS CHEANGED AND REMAINS: safety, well-being, sexual safety, health and education!

Leaving my child with a wanted fugitive sex offender and prosecuting me for calling you dumb fucking lazy cops in good faith phone calls, what makes them good faith phone calls you may ask? Well it becomes good faith and constitutionally protected speech when its regarding filing charges or protecting my son or having the Judges orders adhered to, the fact that after you hang up or get frustrated with me i call you names does not constitute any law violations, you have a duty to protect and to serve. (all recorded more recordings to be published for the TORT!) some of your behaviors have become criminal and for government officials and law enforcement to become criminals just to keep a sex offender in the home of a child that a judge order to be safe from and to come after the father who demands his child is safe makes you criminals and you will be held accountable!

CLICK ANY PHOTO TO TAKE YOU TO THE LOVE OF FATHER & SON PAGE
a TRUE STORY OF DEPRIVATOIN OF RELATIONSHIP PAIN

Bringing a “Malicious Prosecution” Claim in California

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.

Civil Lawsuit

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.

Criminal Cases

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.

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:

1. 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.
2. 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.
3. 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”).
4. 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,
• humiliation,
• 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.

Legal References:

Misconduct – Know More of Your Rights

Sometimes in Life you really can become the victim any of the following, although this list is not complete and always growing the following are reasons to look into your rights.  If you have experienced any of the following, contact a TORT CLAIM Lawyer for any of the following  behaviors by either Law Enforcement, Judges, or District Attorney’s:

• discrimination if you have been discriminated because you are mental ill, or have any AXIS II abnormalities like being socially awkward, Sigma personality type, Asperger’s Syndrome  (a form of Autism Spectrum Disorder), or any personality disorder including PDD-NOS disorder  if you need to help with mental health discrimination learn more on this topic click here
• hate against you for being of any race, color, ethnicity, gender, mental impairment, physical impairment, age, sexual orientation or any other form of picking on someone in a negative fashion to show animosity and distain for their classification or they way they classify themselves or section. if you need to help with discrimination learn more on this topic click here
• malevolence
• collusion getting your buddies to help do wrong or working with those that do
• persuasion / coercion
• threats or intimidation by using tactics like scaring witness with malicious prosecution or abuse of power to hide their doings
• bribery (pay to dismiss or make a case “disappear” aka pay to play)
• blackmail (pay to dismiss or make a case “disappear” aka pay to play)
• extortion (pay to dismiss or make a case “disappear” aka pay to play)
• lying aka perjury
• manipulating evidence
• falsifying evidence 
• overlooking clear evidence (neglect)
• not checking evidence (due diligence)
• over reach (stretching laws outside of their content)
• hunting for crimes / cherry picking SOME DA OR POLICE TAKE CASES PERSONALLY AND ITS OBVIOUS TO EVERYONE BUT THEM
• gang type activity by law enforcement (working in unison with covering up or knowledge of such there of)
• being set up, must have proof not just hearsay
• not doing their job (allowing crimes to take place or judges orders not to be followed)
• different rules for the goose than the gander
• bias – not going after certain individuals and showing preferable treatment to others facing the similar offenses or even worse yet are treated as angels 

If you would like to learn more about Chapter 289 – Peace Officers and Other Law Enforcement Personnel which is their guidelines to give you a broader understanding of their side chapter-289-peace-officers-and-other-law-enforcement-personnel/

POLICE HAVE CLICKS OR GANGS WITHIN THEM CLICK HERE TO LEARN

NOT ALL POLICE ARE BAD, IT IS A SELECT FEW WHEN VIEWED NUMERICALLY AS A PERCENTAGE BUT WHEN ANYLYZED NUMERICALLY IT VERY HIGH WHEN COUNTED PER HUMAN HUMAN AN NOT AS A PERCENTAGE.

PERSERVING THE BADGE AND ITS MEANING IS DETRIMENTAL TO HAVING A FUNCTIONING CIVIC MINDED SOCIETY, THE MOMENT LAW ENFORCEMENT CROSSES THE LINE OF TRUST, THE IRREVERSIBLE DAMAGE IS INCONCEIVABLE BY THE WRONGDOERS.  These slubberdegullions infect the departments they work for, brining others down with them and inherently destroying community trust in the process.  This not only harms the community but it harms the moral of the good ones, like i stated before, percentage wise its low, but 1% of 10,000 is still 100 people and there is 660,288 cops give or take so that means there are roughly 6603 dirty cops, and that is with a 1% statistic which is because catching the dirty ones is even harder. 6603 dirt cops / 50 states = 132 dirty cops per state and that is if the number was closer to a real number 2-3% that is roughly 12,000-18,000 dirty cops!  GOOD MEN WANT GOOD THINGS, IT STARTS WITH FAMILY AND YOUR UPBRINGING AND MORALITY THAT DETERMINES IF YOU HAVE A CIVIC MIND AND DESERVE THE PRIVELEDGE TO HELP AND PROTECT OTHERS, NOT HARASS, KILL OR FRAME!

If you may experience this with anytime you challenge certain low self esteem, irritated, anti-social psychosocial personality types.  to learn more about these 3 items below in orange click here

1. Some individuals seek power to have control over others, while others want to have more influence over their own lives.
2. Individuals may seek power over others due to fear or mistrust, which can motivate choosing coercive and antisocial strategies to control them.
3. In contrast, individuals seeking power for self-determination tend to aim toward prosocial leadership and cooperation instead.

To learn more about how a victim of a real crime can use an audio recording can be used in any court proceeding to prove perjurylook here (California Constitution article I, § 28 Right to Truth – Victims’ Bill of Rights – Prop 8 1982) you cannot just record someone, unless their is no expectation of privacy (i.e. they record at the office,  you tell them they continue to blab)those are legal and no need for any (California Constitution article I, § 28 Right to Truth – Victims’ Bill of Rights – Prop 8 1982) to be applied.  But if you are secretly recording and there is no expectation of privacy, and you know what the other person is doing is a crime against you and your soul purpose is to use it to prove another’s statement is perjurious, it however cannot be used to convict 

If you are dealing with lying witnesses and you have forensic proof that can establish a lie…. then you can sue them for Malicious Prosecution which can lead to civil and even penal actions being taken up against them.  There is a slew of other reasons providing they are not judges, they have almost complete immunity but jurisdictional issues and operating outside of their official Judgeship Capacity can lead to a successful penetration, it’s hard and case by case, tolearn more about how to penetrate their vale of immunity click here.  Prosecutors are less immune than judges to find out how to penetrate their vale of immunity click here and cops can be sued are are far less immune, especially when constitutional rights are involved and liberties deprived now a days as of 4.4.2022 to find out how to penetrate their vale of immunity click here !  To learn more about perjury click here

If your Accuser has falsified evidence and you can prove it read up here on the correct laws for them Whether Cop or Civilian ITS WRONG!

What can happen to dirty cops ?

• IN EXTREME CASES THEY CAN SERVE TIME
• BE HIT IN A CIVIL LAWSUIT
• LOOSE PENSION AND ASSETS, BANK ACCOUNT
• EVEN BE GARNISHED IN THE FUTURE  FROM THEIR FUTURE NEW CAREER DOING SOMETHING ELSE
• DISGRACE THEMSELVES, THEIR FAMILY NAME AND REPUTATION OF THEMSELVES FOREVER (A COMMUNITY STANDING OF LESS VALUE THAN A CRIMINAL) while compounding the injustice that the bade of good officers consistantly receives due to neglegent sociopaths working with a badge who TARNISH it so THE GOOD OFFICERS THAT SACRIFICE THEIR LIFE EVERYDAY FOR CIVILITY IN SOCIETY have shame they did not earn, you shat on them!

TORT CLAIMS WHEN APPLIED IN THE CORRECT MANNER DO TOUCH HOME FOR LAW THAT ABUSES LAW

For police to take sides, collude and lie just to save what? what are you saving exactly? The force? The Badge? NOPE

actions like that disgrace the honor and privilege they hold being civil servants to us citizens.  They often are not but always should be held at the highest standards as they  represent what they wish out of their citizens.  They are mere civil servants, serving the real penal code and serving the badge by being honest in all your doings, never to take sides, but to be a mere non

In this article we will cover:

1. Suing for police misconduct (reasons for Tort)
2. Suing for prosectional misconduct (reasons for Tort)
3. Suing for Violation your US Constitutional Rights (reasons for Tort)
4. Retrieving Police Data, their police line recordings, and bodycam Footage SB1421 form & learn here

How to file a complaint of Police or other Government Official Misconduct Click Here

• Thompson v. Clark holds Fourth Amendment claim under § 1983 for malicious prosecution read here
  • Thompson v. Clark, 364 F. Supp. 3d 178 read here
• Sullivan v. County of Los Angeles False Imprisonment- 12 Cal.3d 710 read here
• Walton v. Gomez – Reiterates many past findings  read here
•  SB1421 Form, The Right To Know Act – Access to California Police Records form here
  • THE LAW SB1421 code is here
• Police Decertification Process through SB-2  read here
  • Senate Bill 2 Legislature read here
    
  • New Laws from SB2 Protect You from Police Misconduct read here

Having Trouble getting the truth from police cams or phone system?

are Police or DA’S giving you the runaround ?

Know your rights and use their reluctance as a larger settlement in the Tort, for preventing Justice by using their position to manipulate, each delay shows intent, each method cements their behavioral psychology. Preventing justice by abusing their power is a constitutional violation. learn more below:

to find out more about police body camera law form here 

To Learn the most common US Constitutional Violations the US Government abuses the most.

learn more below:

• US Constitution read here

  • First Amendment – Freedom of Religion Speech, and Press read here
    • Freedom of the Press read here
    • Citizens & Non Protective Government Offices or Officials read here
    • First Amendment Federal court reaffirms right to film police read here
  • Second Amendment – Right to Bear Arms read here
  • Fourth Amendment – Search and Seizure read here
  • Fifth Amendment – Right Not to Self Incriminate / Double Jeopardy read here
  • Eight Amendment – Cruel & Unusual Punishment read here 
  • Fourteenth Amendment – Deliberate Indifference – Causing Harm – Due Process Clause read here
    • 9.32 Particular Rights – Fourteenth Amendment – Interference with Parent/Child Relationship read here
    • Deliberate Indifference – Causing Harm – Due Process Clause read here
    • Miranda Rights read here
    • How Far Does Probable Cause Go? Where Do Your Rights Begin? read here

Is there any resources when there is a problematic co-conspirator District Attorney or Judge (doing a solid for a friend or few)?

Why yes there is! Not only are they held to the same standards as Police, they have one added caveat both judges and district attorney are lawyers, so they are governed by The State Bar in your state.  If your state is like California it holds Judges & Prosecutor’s not only to the Standard State Bar that they hold all lawyers to but one more last caveat specific ones governing them in particular.  We believe in our country at times its our leaders and servants that become unethical through unscrupulous nefarious shady actions and eschew justice for friendships they make in their legal community of unethical through unscrupulous nefarious shady employees of the government.  Many southern California police have gangs withing them!

TO LEARN MORE ON POLICE GANGS AND CLICKS WITHING THE RANKS CLICK HERE.

Remember although times are changing in some areas old habits die hard.  The police have always been the “Good Ole’ Boys” although many are mere slubberdegullions and if you dare say one of them did something wrong you will find the police gang click which includes some district attorneys and judges, they have a long reach of corrupt ties!

We hope the resources below will help you with these specific type of professionals:

• Misconduct by Judges & Prosecutor read here
• California Attorney Misconduct Law read here
• Malicious Prosecution / Prosecutorial Misconduct read here
• Frivolous, Meritless or Malicious Prosecution read here
• Vindictive Prosecution – Georgetown University read here
• What is abuse of process? read here
• Vindictive & Selective Prosecution  read here
• Prosecutorial Misconduct, What is it ? read here

• California Rules of Professional Conduct and Other Related Rules and Codes can be found here
• New UPDATE California Rules of Professional Conduct Maintaining the Integrity of the Profession (Rules 8.1 – 8.5)  found here
• Types of misconduct by lawyers, judges and DA’s list is ever changing and examples can be found PDF here
• To complain about a judges conduct here is the link to the form to see a sample of what yours should look like Click here

To learn how THESE MALICIOUS ACTIVITIES HERE are linked in with 18 U.S. Code § 241 – Conspiracy against rights

To learn how 18 U.S. Code § 241 can linked in with 18 U.S. Code § 242 – Deprivation of rights under color of law

and what to do about it How to File a complaint of Police, Judge, DA, and ALL Government Employee Misconduct?

cited some from https://www.losangelescriminallawyer.pro/california-penal-code-section-118-1-pc-police-officers-filing-fa.html#:~:text=Under%20California%20Penal%20Code%20Section,report%20on%20a%20criminal%20matter.

AN IN DEPTH ARTICLE ABOUT PROESECUTIONAL MISCONDUCT click here

How to file a complaint of Police or other Government Official Misconduct Click Here

To learn more about the awesome new ruling that allows for going after a tyrant government office or government officer read below 2022 ruling!!!!

NOW, AS OF APRIL 4, 2022 YOU HAVE A RIGHT UNDER FEDERAL LAW TO SUE FOR YOUR MALICIOUS CRIMINAL PROSECUTION.

FEDERAL MALICIOUS PROSECUTION LAW FROM 1994 TO 2017

20-659 Thompson v. Clark (04-04-2022) – Suing the Government Officially Personally tapping into their financial life legally

In its landmark decision, Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,

403 U.S. 388 (1971), the U.S. Supreme Court held that federal officials can be sued personally for money damages for on-the-job 
conduct that violates the Constitution. Cases in which federal employees face personal liability cut across everything the government
does in all three branches of government. Whether they are engaging in every-day law enforcement, protecting our borders,
addressing national security, or implementing other critical government policies and functions, federal employees of every rank face the
specter of personal liability.

thompson-v-clark-364-f-supp-3d-178/

thompson-v-clark-holds-fourth-amendment-claim-under-%c2%a7-1983-for-malicious-prosecution

Interference by threat, intimidation or coercion with exercise or enjoyment of individual rights
The Bane Civil Rights Act (California Civil Code Section 52.1) forbids anyone from interfering by
force or by threat of violence with your federal or state constitutional or statutory rights.
The acts forbidden by these civil laws may also be criminal acts, and can expose violators to criminal penalties.
california-civil-code-section-52-1/

42 U.S. Code § 1983 – Civil action for deprivation of rights

Every person who, under color of any statute, ordinance, subjects, or causes to be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

to read the full statute click link below
cited 42-us-code-1983-civil-action-for-deprivation-of-rights/

Sullivan v. County of Los Angeles – 12 Cal.3d 710 – Mon, 11_04_1974

Section 815.2 provides: "(a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity
within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee
or his personal representative.

[8] Malicious prosecution "consists of initiating or procuring the arrest and prosecution of another under lawful process,
    but from malicious motives and without probable cause. ... [Italics in original.] The test is whether the defendant was
    actively instrumental in causing the prosecution." (4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 242, pp. 2522-2523.)
    Cases dealing with actions for malicious prosecution against private persons require that the defendant has at least sought
    out the police or prosecutorial authorities and falsely reported facts to them indicating that plaintiff has committed a crime.
    (Rupp v. Summerfield (1958) 161 Cal.App.2d 657, 663 [326 P.2d 912]; Centers v. Dollar Markets (1950) 99 Cal.App.2d 534, 544-545 [222 P.2d 136].)
    Similarly the suits against government employees or entities cited by the Senate Committee in commenting upon section 821.6
    all involve the government employees' acts in filing charges or swearing out affidavits of criminal activity against the plaintiff.
    fn. 9 No case has predicated a finding of malicious prosecution on the holding of a person in jail beyond his term or beyond the completion
    of all criminal proceedings against him.

cited sullivan-v-county-of-los-angeles-12-cal-3d-710/

Spencer v. Peters

After several unsuccessful appeals, the relevant facts of which will be discussed throughout this order, Mr. Spencer's prison 
sentence was commuted to community supervision in 2004 by then Governor Locke. Dkt. 63-18. Following his release from prison.

This is a great hearing you click below you can hear the proceedings audio and discussion. This an excellent source for young hungry new attorneys! good luck in your career, work hard, good ethics, good nature, respect God in your work and doings just as you steer clear of harming attorney client privilege respect the attorney God privilege and do right by him! use your fantastic mind to work around the obstacles while still respecting God and his expectations he has for all of us. Live right, you only live once! YOLO is not a reason to go nuts, its a reason to straighten ones morals inline with the creator before your time is up. Now that is a lottery ticket you don’t want to forget buy, heaven beats anything you get here…. and you pay for it by doing good here now for God!
spencer-v-peters/

Prosecutorial Misconduct

“It is prosecutorial misconduct, the weaponization of the Justice System, and an attack by Radicals who desperately don’t want me to have fair and adequate family law/law enforcement services. Especially based previous misconduct and dismissed PC 653 Annoying and harassing phone calls to a residence  (public office isn’t a residence either) against law enforcement (they were recorded and case was dismissed after blackmail was paid to the OC DA Victim Rape Victim Fund (click here to listen to to 2 calls taken over 1 year apart)  cases and the recent criminal malicious prosecution of me when I complain of their negligence and their own crimes they have committed against me and my son.”

DOJ on Prosecutorial Misconduct

Prosecutorial overreaching and misconduct distort the truth-finding process and taint the credibility of the criminal justice system, including the outcomes they generate. NACDL is dedicated to attaining meaningful, systemic reform to help prevent the insidious harm caused when a prosecutor carelessly, or purposefully, fails in his or her duties to us all. This page (click here) contains resources from the Department of Justice on the problem of prosecutorial misconduct.

 You may try this small tool below if suited for you order

• Section 1008 – Motion to reconsider matter and modify, amend or revoke prior order
  Motion to reconsider – Cal. Code Civ. Proc. § 1008 Section 1008/
• Fighting A Judgment Without Filing An Appeal Settlement Or Mediation – Options to Appealing
  fighting-a-judgment-without-filing-an-appeal-settlement-or-mediation-options-to-appealing/
• RULE 9  RECONSIDERATION; APPEAL
  rule-9-reconsideration-appeal/

Malicious Prosecution

Criminal prosecution is malicious if law enforcement pursues groundless charges. Examples of malicious prosecutions include situations in which law enforcement:

• law enforcement:
  • charges a person with a crime to cover up police misconduct, such as excessive use of force or false imprisonment;
  • intends to punish a person by harassing them with criminal proceedings;
  • intends to ruin a person’s reputation by bringing unfounded criminal charges against them; or
  • charges a person with a crime to divert attention from the actual perpetrator.A private person who lies to the police, and causes law enforcement to file false criminal charges, may also be liable for malicious prosecution.

Malice is defined as the state of mind under which a person intentionally does a wrongful act with the intent to inflict injury. But courts focus on the lack of probable cause, and malice may be inferred from its absence. Under Ohio law, a plaintiff cannot sue for malicious prosecution unless the underlying process or legal action has been revolved in the accused’s favor.

Relationship to “Abuse of Process” and “False Arrest”

Another tort claim for litigation misconduct is abuse of process. Abuse of process differs from malicious prosecution in that a person can still sue for abuse of process where there were reasonable grounds to pursue the case, but the lawsuit was initiated with an improper or ulterior purpose. For example, trying to tie up property in a divorce proceeding for the purpose of getting the other spouse to agree to different child-visitation rights may constitute abuse of process. Abuse-of-process claims, however, are difficult to prove and rarely successful.

Other available claims include false arrest, which may lie where police arrest someone without probable cause. Probable cause requires that police have reasonable trustworthy information sufficient to warrant an officer of reasonable caution to believe the arrestee committed, or is in the process of committing, an offense. Typically, acting on a warrant is a complete defense to a false-arrest claim.

Malicious Prosecution and False Arrest as a Civil-Rights Violation

In addition to any state-law claims, both malicious (criminal) prosecution and false arrest are recognized as separate violations of a person’s constitutional right against unreasonable searches and seizures protected by the Fourth Amendment of the U.S. Constitution. Therefore, where malicious-prosecution claims involve an arrest or criminal proceeding, plaintiffs may be able to file in either state or federal court.

Proof of malice is not required to succeed on a claim of malicious criminal prosecution under the U.S. Constitution. But here a plaintiff must prove:

• (a) criminal prosecution was initiated against the plaintiff and that the defendant made, influenced, or participated in the decision to prosecute;
• (b)there was a lack of probable cause for the criminal prosecution;
• (c) as a consequence of the legal proceeding, the plaintiff suffered a deprivation of liberty apart from the initial seizure; and
• (d) the criminal proceeding was resolved in the plaintiff’s favor.

Bringing a “Malicious Prosecution” Claim in California

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.

Civil Lawsuit

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.
• How to file a complaint of Police or other Government Official Misconduct Click Here

Penal Code §§ 146 [unlawful detention or arrest by peace officer] 149 [beating / torturing prisoners], 236 [false imprisonment], 192 [manslaughter], 187 [murder] and 245 [assault with deadly weapon / by means resulting in great bodily injury]), civil liability (i.e. federal civil remedy for violation of federal and statutory rights under color of state law [42 U.S.C. § 1983]), and California state law claims for battery, assault, false arrest / false imprisonment, wrongful death, violation of Cal. Civil Code § 52.1 (retaliation for exercise of, or in attempt to, dissuade prevent another from exercising Constitutional rights), or administrative discipline (i.e. reprimand, suspension, rank reduction, and termination.)

Notwithstanding the absurd and cruel creation of immunity for peace officers that went well beyond the literal wording  and clear meaning of Section 821.6 by the California Courts of Appeal, in 2061 in  Tort claims are typically matters of state law, raising no federal question. However, the conduct complained of may also violate the federal Constitution. In such a case, relief may be available in a federal court under 42 U.S.C. § 1983, which authorizes “constitutional torts”, by creating a private right of action in federal court (Congress even allowing federal claims in a state court), against any person who, “under color of [state law],” causes injuries by violating an individual’s federal Constitutional or statutory rights.  Section 1983, however, “is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979.) Therefore, in order to bring a malicious prosecution claim under Section 1983, a malicious criminal prosecution must be deemed a deprivation of a right “secured by the Constitution.” 42 U.S.C. § 1983.

THE NINTH CIRCUIT COMES TO THE RESCUE AND REFUSES TO FOLLOW THE CALIFORNIA COURTS OF APPEAL IN THEIR AD NAUSEUM EXPANSION OF MALICIOUS PROSECUTION IMMUNITY UNDER SECTION 821.6.

On July 5, 2016, the Ninth Circuit handed down the seminal case of Garmon v. Cty. of Los Angeles, 828 F.3d 837, 847 (9th Cir. 2016), which rejected the California Court of Appeal’s ad nauseam expansion of Section 821.6 immunity and refused to immunize police officers pursuant to that section. In that Opinion, the Ninth Circuit held that they are only bound to follow state law on state law issues when either the highest court in a state (i.e. the California Supreme Court on California law) has decided that issue, or, when the state Courts of Appeals have decided an issue and the federal court finds that the state Supreme Court would have held otherwise. In reaching that holding that Ninth Circuit Court of Appeals held that the California Supreme Court already interpreted [California Government Code] section 821.6 as ‘confining its reach to malicious prosecution actions.’ “Sullivan v. County of Los Angeles, 12 Cal.3d 710, 117 Cal.Rptr. 241, 527 P.2d 865, 871 (1974), and that in their opinion, the California Supreme Court would adhere to Sullivan, notwithstanding many Opinions of the California Courts of Appeal holding otherwise. Accordingly, the state of the law is that if you have the same case with the same parties and your case is in a California state court, that Section 821.6 immunizes many actions of peace officers other than malicious prosecution, but if you are in federal court, Section 821.6 immunity only immunizes claims for malicious prosecution under California state law.

On the basis of dicta expressed by the plurality opinion in Albright v. Oliver, 510 U.S. 266 (1994), there has been a political and practical acceptance of a federal constitutional right to be free of a malicious criminal prosecution; a frame-up by state actors.

In Albright v. Oliver, 510 U.S. 266 (1994), the U.S. Supreme Court held that although a malicious criminal prosecution is not a 14th Amendment substantive due process violation, that is might be considered an unreasonable seizure of one’s person under the 4th Amendment to the U.S. Constitution, if the subsequent malicious prosecution was accompanied by the actual physical arrest of the person.

In reality, these words were crafted by the Supreme Court to permit persons who are falsely and maliciously accused of a crime by the police that resulted in a bogus criminal prosecution, to sue the police who attempted to frame them. It’s judicial “newspeak“.

If there is anything that would constitute what the courts call substantive due process (i.e. outrageous police conduct that shocks the conscience), attempting to frame an innocent is it. However, the Supreme Court could not agree on whether a malicious criminal prosecution was a substantive due process violation in Albright v. Oliver, but the Justices did not want to leave one who the police attempted to frame without a remedy.

Accordingly, in Manuel v. City,  of Joliett, 580 U.S. _____ (2017), the Supreme Court held that one who was physically arrested and confined in custody by way of the false arrest of a police officer, can obtain damages under 42 U.S.C. § 1983 for that person’s continued confinement in jail, after the point in time when the District Attorney (prosecutor) formally filed criminal charges against the person. In other words, the accused person can collect damages for being kept in jail before trial, pursuant to criminal charges, filed by the prosecutor, that were procured by the arresting police officer having authored a false police report, that the prosecutor relied upon in  deciding to file the very criminal charges that kept the false accused person in jail before trial.

However, this still didn’t establish a Naked Constitutional Tort of a Malicious Criminal Prosecution; only a damages remedy for a false arrest, and for confinement in jail after the point in time when the prosecutor formally filed criminal charges against the confined person.

Following both Albright v. Oliver and Manuel v. City of Joliet, most United States District Courts and the United States Courts of Appeals (the federal intermediate level appellate courts) permitted a Section 1983 remedy for a malicious criminal prosecution by a peace officer.  The First, Second, and Eleventh Circuits composed the “Tort Circuits,” wherein plaintiffs pleading malicious prosecution claims under Section 1983, were required to satisfy the common law elements of a malicious prosecution claim in addition to proving a constitutional violation. The “Constitutional Circuits”—the Fourth, Fifth, Seventh, and Tenth— concentrated on whether a constitutional violation exists.

Most of the Circuits of the United States Courts of Appeals, allowed for an aggrieved person the right to sue for being subjected to a malicious criminal prosecution, federal remedy for the same, via 42 U.S.C. §  1983. They did so, on various theories, since the right to be free from a malicious criminal prosecution is not described in the federal Constitution, but the pure evil and outrageousness of such government action compels appellate judges to find some Constitutional foundation for that right, in order to allow a person who the government attempted to frame, some sort of remedy.

Although sister circuits categorized the Third Circuit as a “Tort Circuit”, the Third Circuit more recently acknowledged that “[o]ur law on this issue is unclear”; however, it continued to encourage plaintiffs to address each common law element. Similarly, the Sixth Circuit has avoided defining the required elements of a claim, although it appears to recognize a Fourth Amendment right against malicious prosecution and continued detention without probable cause.  The Ninth Circuit lies on both sides of the divide; seemingly turning on whether they want the malicious prosecution plaintiff to prevail.

In Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002.)  held that a malicious criminal prosecution was a naked constitutional tort, and was actionable under 42 U.S.C. § 1983 under the 4th Amendment. They just said it, basically out of thin air.

The Ninth Circuit also continued its pre-Galbraith malicious prosecution jurisprudence and held that in in addition to constituting a 4th Amendment violation, that one could sue for a malicious criminal prosecution if the prosecution was brought to deprive the innocent of some other constitutional right, such as attempting to frame an innocent in retaliation for protected exercise of First Amendment free speech, or, as a naked constitutional tort. See, Awabdy v. City of Adelanto, 368 F.3d 1062, 1069–72 (9th Cir. 2004.) i

FEDERAL LAW NOW PROVIDES A REMEDY FOR A MALICIOUS CRIMINAL PROSECUTION.

In Thompson v. Clark, 596 U.S  (April 4, 2022) for the first time in the history of the Americann Republic, the U.S. Supreme Court finally held that there is a Constitutional Tort of Malicious Criminal Prosecution. The Supreme Court also went on to hold that in order to sue for a Malicious Criminal Prosecution, that the underlying criminal action only need not result in a conviction of the accused for the accused (and  now plaintiff), for the underlying criminal case to be considered to be “favorably terminated”; a “favorable termination” of the underlying criminal case being a required element of that claim.

Although under California law you may not recover damages for your malicious criminal prosecution because of immunity provided in Cal. Gov’t Code § 821.6  (See, Asgari v. City of Los Angeles, 15 Cal. 4th 744 (1997), at least now there is a federal remedy for the police attempting to frame you; finally.

to learn more about SB 2 Police Decertification Process – Changes to Government Code

senate-bill-2-police-decertification-process/

SB 2, Expanding Civil Liability Exposure

sb-2-expanding-civil-liability-exposure/

Gerardo Rodarte v. Joseph Gutierrez – arises from the arrest and pretrial detention

you can read more on this gerardo-rodarte-v-joseph-gutierrez/