Legal Definitions of Malicious Prosecution

An intentional tort arising from the institution instigation of unjustifiable and unreasonable civil or criminal litigation.9 min read

An intentional tort arising from the institution instigation of unjustifiable and unreasonable civil or criminal litigation.

An action for malicious prosecution can be brought against underlying case's plaintiff, plaintiff's counsel and/or advisors.

Sheldon Appel

In one of California's leading cases, its Supreme Court granted review in Sheldon Appel "to consider a number of issues relating to the proper determination of the probable cause element in a malicious prosecution action, including the question whether a plaintiff may establish an absence of probable cause by proving that its former adversary attorney failed to perform adequate legal research before filing the prior action." (Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal.3dat pp.867-868.) To that end, the Court determined "that the most promising remedy for excessive litigation does not lie in an expansion of malicious prosecution liability" (id. at p. 873) and thus found it was not "advisable to abandon or relax the traditional limitations on malicious prosecution recovery." (Id. at p.874.) It was from that perspective that the Court analyzed the specific questions presented in Sheldon Appel.

  • First, the Supreme Court determined the issue of probable cause is one for the court, not a jury. (Sheldon Appel, supra, 47 Cal.3d at pp.874-877) Thus, where there are no disputed questions of fact relevant to the probable cause issue, the matter may be determined by summary judgment(or on appeal by de novo review). Id. at pp.884-886.
  • Second, the Supreme Court determined that, where (as in Sheldon Appel) "the facts known by the attorney are not in dispute, the probable cause issue is properly determined by the trial court under an objective standard; it does not include a determination whether the attorney subjectively believed that the prior claim was legally tenable."(Sheldon Appel, supra, 47 Cal.3d at p.881)

The Perceived and Objective Tenability of a Claim

To avoid confusion, the Court "strongly emphasize[d]" that it did not mean to "suggest that an attorney who institutes an action which he does not believe is legally tenable is free from the risk of liability for malicious prosecution. If the trial court concludes that the prior action was not objectively tenable, evidence that the defendant attorney did not subjectively believe that the action was tenable would clearly be relevant to the question of malice. Inasmuch as an attorney who does not have a good faith belief in the tenability of an action will normally assume that a court is likely to come to the same conclusion, the malicious prosecution tort will continue to deter attorneys from filing actions which they do not believe are legally tenable.

"Furthermore, the probable cause element, as so defined, imposes improper or unjustified hardship on a malicious prosecution plaintiff. If a court finds that the initial lawsuit was in fact objectively tenable, the court has determined that the fundamental interest which the malicious prosecution tort is designed to protect -- 'the interest in freedom from unjustifiable and unreasonable litigation' -- has not been infringed by the initial action. Under such circumstances, it is not unfair to bar a plaintiff's suit for damages even if the plaintiff can show that its adversary's law firm did not realize how tenable the prior claim actually was, since the plaintiff could properly have been put to the very same burden of defending an identical claim if its adversary had simply consulted a different, more legally astute, attorney. This is a classic case of 'no harm, no foul.'" (Sheldon Appel, supra, 47 Cal.3d at pp.881-882)