SLAPP’d in San Diego: Court of Appeal Confirms Requirement that a Malicious Prosecution Plaintiff Prove it Prevailed as to Entire Prior Action

This post is part of an ongoing series on California’s anti-SLAPP law from the perspective of Los Angeles appellate and trial attorney, Jeff Lewis. The First Amendment and California’s anti-SLAPP law have long been held to protect litigation related activities. Filing a lawsuit, for example, is protected by the First Amendment. Statements made in court proceedings are likewise protected. If a defendant is sued for such litigation activities, the defendant can usually quickly obtain a dismissal by filing an anti-SLAPP motion.

In Lane v. Bell, a plaintiff had lost most but not all of the claims pled in a prior action. In a subsequent action for malicious prosecution, the defendant (who was previously the plaintiff) filed an anti-SLAPP motion. Key to resolving the anti-SLAPP motion was whether the prior plaintiff’s victory as to one cause of action precluded the later claim for malicious prosecution? The Fourth Appellate District concluded it did. To prove a claim for malicious prosecution, a prior defendant must prove that in the prior action he prevailed as to the entire action. The Court of Appeal held that the anti-SLAPP motion was properly granted because the prior plaintiff had prevailed on at least one cause of action.

Jeff Lewis is an experienced First Amendment attorney who can advise you about the specifics of your anti-SLAPP issue or appeal.  Each case is different and you should consult a lawyer rather than relying on this post as legal advice for your situation.  If you are contemplating filing or responding to lawsuit or appeal with potential anti-SLAPP issues, consider hiring a certified appellate specialist as your lawyer or co-counsel.  Don’t wing it, win it.

California Supreme Court Affirms Absolute Defense to Malicious Prosecution Action

Have you ever written or received a letter threatening a malicious prosecution action? Often times the people writing and sending such letters are unaware that a malicious prosecution action is not a viable claim because of a plaintiff's interim success on a hearing on the merits. The Interim Adverse Judgment Rule is an absolute defense to a malicious prosecution action. In the first action, if there was a hearing on the merits of a claim such as a summary judgment motion and the plaintiff prevails, that victory affords a complete defense in a subsequent malicious prosecution action. This defense applies even where the plaintiff ultimately loses the first action. This month the California Supreme Court issued an opinion that confirmed the continuing vitality of this absolute defense even where the trial court in the first action determines after an interim victory that the action was brought in bad faith. The case of Parrishw v. Watkins (August 10, 2017 S228277) represents an effort to chip away at a solid and often relied on defense in malicious prosecution action.

Assertion of Advice of Counsel in a Malicious Prosecution Action

In a malicious prosecution action, the client who initiated the prior lawsuit has a unique defense available to him.  He can assert “advice of counsel” and attempt to avoid liability.  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).  The burden of proving the advice of counsel defense rests with the client.  (Nunez v. Pennisi (Cal. Ct. App., Oct. 27, 2015, H039910) 2015 WL 6468389, at *8).  The advice of counsel defense will not apply unless the client proves that he informed his counsel of the “specific relevant facts” before the lawsuit was filed.  (Nunez v. Pennisi (Cal. Ct. App., Oct. 27, 2015, H039910) 2015 WL 6468389, at *8).  The defense is not available if the client 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).

This post is the latest 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.

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)

Continue reading “Contrasting the Torts of Malicious Prosecution and Abuse of Process”

Proving the “Prior Action” Requirement of a Malicious Prosecution Case

When a party prevails in a legal proceeding, he or she sometimes will seek further vindication by way of a malicious prosecution action.  However, no matter how frivolous the prior action was, not all legal proceedings are recognized by California courts as triggering malicious prosecution liability.  In California, the filing of a frivolous garden variety civil action for breach of contract or a tort can support a later claim for malicious prosecution.  In addition, the following types of legal proceedings are recognized as “prior actions” which will support a later claim for malicious prosecution: Continue reading “Proving the “Prior Action” Requirement of a Malicious Prosecution Case”

Potential Defendants in a Malicious Prosecution Case

Malicious prosecution actions in California are complex.  Filing and defending such actions require the handling attorney to have a deep understanding of  the interplay of anti-SLAPP law, SLAPP-back actions and malicious prosecution actions.  One of the preliminary issues to resolve in preparing a malicious prosecution action is who to name as a defendant.  In most cases, the defendants are not usually hard to identify: 1) the prior plaintiff(s); and 2) the lawyer(s) for the prior plaintiff(s).  However, in some instances this question is not so clear as to which parties to name as defendants in a malicious prosecution case.  For example,

  • Liability is not limited to the prior plaintiff and attorney for the prior plaintiff.  Persons who urge, procure or otherwise are actively instrumental in the filing of the lawsuit may be sued for malicious prosecution along with the actual prior plaintiff.  (Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 25 fn. 26).
  • Even if initial counsel had probable cause to file a lawsuit, successor counsel may be liable for malicious prosecution if they continued the prosecution without probable cause.  (Zamos v. Stroud (2004) 32 Cal. 4th 958, 970).
  • A trustee may be sued for a prior action brought in trustee’s representative capacity.  The trustee, not the trust, is the real party in interest with respect to litigation over trust property.  (Nicholson v. Fazeli (2003) 113 Cal.App.4th 1091, 1102-1103).
  • Associate counsel who appears on the pleadings and is on the case service list may not avoid malicious prosecution liability by claiming ignorance about allegations made by lead counsel.  (Cole v. Patricia A. Meyer & Associates, APC (2012) 206 Cal.App.4th 1095, 1117).

This post is the fifth in an ongoing 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.

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.

Continue reading “Defending the Malicious Prosecution claim”

Establishing the “Probable Cause” 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 that the prior action was filed and/or continued without probable cause.  Just because you won the prior lawsuit does not necessarily mean that California courts will recognize the prior action lacked probable cause.

“Reasonable Attorney” Test
The test is whether any reasonable attorney would have thought the claim tenable.  (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 886).  A claim is legally tenable if it is supported by existing authority or the reasonable extension of that authority.  (Sheldon Appel Co. v. Albert & Olikersupra, 47 Cal.3d at p. 886; see also Arcaro v. Silva and Silva Enterprises Corp. (1999) 77 Cal.App.4th 152, 156-57).   Continue reading “Establishing the “Probable Cause” Element of a Malicious Prosecution claim”

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

Three key questions to ask in evaluating any potential case for Malicious Prosecution

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).  In evaluating whether to accept or defend a malicious prosecution action, there are three critical questions to ask at the outset of the case:

  1. What motions were filed in the prior action bearing on the merits?
  2. What viable sources and parties are there to satisfy a judgment?
  3. Is there sufficient evidence available to the parties now to survive an anti-SLAPP motion to strike within 90 days of filing the complaint?

Continue reading “Three key questions to ask in evaluating any potential case for Malicious Prosecution”