Contrasting the Torts of Malicious Prosecution and Abuse of Process

The related torts of malicious prosecution and abuse of process both vindicate the important personal rights to be free from unwarranted or abusive litigation tactics.  There are some important distinctions in the elements of each claim:

The common law tort of malicious prosecution originated as a remedy for an individual who had been subjected to a maliciously instituted criminal charge, but in California, as in most common law jurisdictions, the tort was long ago extended to afford a remedy for the malicious prosecution of a civil action. (Citations). Under the governing authorities, in order to establish a cause of action for malicious prosecution of either a criminal or civil proceeding, a plaintiff must demonstrate “that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff’s, favor [citations]; (2) was brought without probable cause [citations]; and (3) was initiated with malice [citations].”

(Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 871)

Establishing the “Favorable Termination” Element of a Malicious Prosecution claim

The complex tort of malicious prosecution is frequently threatened yet rarely fully understood.  One of the trickier elements to establish is a “favorable termination” of the prior action.  Just because you won the prior lawsuit does not necessarily mean that California courts will recognize the victory as “favorable.”

A defendant’s trial victory establishes a favorable termination.  Other modes of terminating a case are less clear.  In looking at the prior action, the courts are concerned with whether the prior termination was a result of the assessment by a court or the prior plaintiff that the prior defendant was innocent.

Non-substantive victories.  “Technical” or “procedural” victories are not “favorable” for purposes of a malicious prosecution action.  Examples of such technical victories are dismissals arising from 1) statute of limitations; 2) settlement; 3) laches; 4) lack of jurisdiction; 5) mootness; 6) lack of standing; 7) res judicata; and 8) ripeness.  (JSJ Ltd. Partnership v. Mehrban (2012) 205 Cal.App.4th 1512, 1525).  Such victories are considered non-substantive because they do not reflect a determination by the court or the prior plaintiff that the prior defendant was innocent of the alleged misconduct.

Close Situations.  Some situations require a closer, fact based evaluation to decide whether the prior victory was favorable.  For example, in Zeavin v. Lee (1982) 136 Cal.App.3d 766, 773, a case that ended due to terminating discovery sanctions, would not be