Defending the Malicious Prosecution claim

The complex tort of malicious prosecution is frequently threatened yet rarely fully understood.  The elements of the claim are that a prior action  (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff’s favor;  (2) was brought without probable cause: and (3) was initiated with malice.” (Brennan v. Tremco Inc. (2001) 25 Cal.4th 310, 313).  Defending against a malicious prosecution claim obviously will entail negating the elements of the tort.  The prior plaintiff can defend the case by establishing probable cause to file the prior action or by arguing that the manner of the prior action’s termination did not establish the prior defendant’s freedom from liability.  In addition to contesting the elements of the tort, at least three other defenses may also come into play: Advice of Counsel, Statute of Limitations and Unclean Hands.

Advice of Counsel

Advice of counsel can provide an absolute defense to a client.  “Reliance upon the advice of counsel, in good faith and after full disclosure of the facts, customarily establishes probable cause.”  (Pond v. Insurance Co. of North America (1984) 151 Cal.App.3d 280, 288).  However, the defense is not available if the defendant knew that there was no probable cause to file suit.  (George F. Hillenbrand, Inc. v. Insurance Co. of North America (2002) 104 Cal.App.4th 784, 814).  One peril to asserting advice of counsel is that the client may be found to have waived the attorney client privilege regarding the advice received.  (Chiron Corp. v. Genentech, Inc. (E.D. Cal. 2001) 179 F.Supp.2d 1182, 1186).  Thus, a client asserting advice of counsel as a defense should be prepared at the least to litigate the question of whether the privilege applies.

Statute of Limitations

There are two possible statutes of limitations for malicious prosecution actions.  Claims against non-attorneys are governed by the two-year statute of Code of Civil Procedure, section 340.6, subdivision (a).  Claims against attorneys may be subject to a one-year statute of limitations.  (Vafi v. McCloskey (2011) 193 Cal.App.4th 874, 880; Cheong Yu Yee v. Cheung (Cal. Ct. App., Oct. 4, 2013, D060989) 2013 WL 5496953, __ Cal.Rptr.3d __).  The statute begins to run when judgment is entered in the prior action.  (Feld v. Western Land & Development Co. (1992) 2 Cal.App.4th 1328, 1334).  If an appeal is filed from the prior action, the statute is tolled pending the outcome of the appeal.  (Id.)  When the appellate court remands the matter back to the trial court following the appeal, the statute begins to run again.  (Id.).

Unclean Hands

Unclean hands is an affirmative defense to a malicious prosecution action.  (Kendall-Jackson Winery, Ltd. v. Superior Court (1999) 76 Cal.App.4th 970, 974).  For the defense to apply the court will examine whether there was a relationship between the claimed misconduct by the plaintiff and the plaintiff’s claimed injuries.  (Id.)  The misconduct “need not be a crime or an actionable tort.  Any conduct that violates conscience, or good faith, or other equitable standards of conduct is sufficient cause to invoke the doctrine.”  (Id.)

Litigation Privilege

The litigation privilege set forth in Civil Code section 47, subdivision (b) does not apply to a malicious prosecution action.  (McClintock v. West (2013) 219 Cal.App.4th 540).

This post is the fourth in a series of posts on the tort of malicious prosecution.  Jeffrey Lewis represented the prevailing parties in the malicious prosecution case of  Videotape Plus, Inc. v. Lyons (2001) 89 Cal.App.4th 156.   Jeffrey Lewis and the other attorneys at Broedlow Lewis LLP are experienced litigators and can advise you about your potential rights and defenses in a malicious prosecution action.  Each case is different and you should consult a lawyer rather than relying on this post as legal advice for your situation.

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