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

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

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