California Civil Jury Instructions (CACI)

1501. Wrongful Use of Civil Proceedings

[Name of plaintiff] claims that [name of defendant] wrongfully brought a lawsuit against [him/her/it]. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant] was actively involved in bringing [or continuing] the lawsuit;

[2. That the lawsuit ended in [name of plaintiff]’s favor;]

[3. That no reasonable person in [name of defendant]’s circumstances would have believed that there were reasonable grounds to bring the lawsuit against [name of plaintiff];]

4. That [name of defendant] acted primarily for a purpose other than succeeding on the merits of the claim;

5. That [name of plaintiff] was harmed; and

6. That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s harm.

[The law requires that the trial judge, rather than the jury, decide if [name of plaintiff] has proven element 2 above, whether the earlier lawsuit ended in [his/her/its] favor. But before I can do so, you must decide whether [name of plaintiff] has proven the following:

[List all factual disputes that must be resolved by the jury.]

The special [verdict/interrogatory] form will ask for your finding on [this/these] issue[s].]

[The law [also] requires that the trial judge, rather than the jury, decide if [name of plaintiff] has proven element 3 above, whether [name of defendant] had reasonable grounds for bringing the earlier lawsuit against [him/her/it]. But before I can do so, you must decide whether [name of plaintiff] has proven the following:

[List all factual disputes that must be resolved by the jury.]

The special [verdict/interrogatory] form will ask for your finding on [this/these] issue[s].]

New September 2003; Revised April 2008, October 2008

Directions for Use

Malicious prosecution requires that the proceeding have ended in the plaintiff’s favor (element 2) and that the defendant did not reasonably believe that there were any grounds (probable cause) to initiate the proceeding (element 3). Probable cause is to be decided by the court as a matter of law. However, the jury may be required to find some preliminary facts before the court can make its legal determination, including facts regarding what the defendant knew or did not know at the time. (See Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 881 [254 Cal.Rptr. 336, 765 P.2d 498].) If so, include element 3 and also the bracketed part of the instruction that refers to element 3.

Favorable termination is handled in much the same way. If a proceeding is terminated other than on the merits, there may be disputed facts that the jury must find in order to determine whether there has been a favorable termination. (See Fuentes v. Berry (1995) 38 Cal.App.4th 1800, 1808 [45 Cal.Rptr.2d 848].) If so, include element 2 and also the bracketed part of the instruction that refers to element 2. Once these facts are determined, the jury does not then make a second determination as to whether there has been a favorable termination. The matter is determined by the court based on the resolution of the disputed facts. (See Sierra Club Found. v. Graham (1999) 72 Cal.App.4th 1135, 1159 [85 Cal.Rptr.2d 726] [element of favorable termination is for court to decide].)

Either or both of the elements of probable cause and favorable termination should be omitted if there are no disputed facts regarding that element for the jury to decide.

Element 4 expresses the malice requirement.

Sources and Authority

  • “Although the tort is usually called ‘malicious prosecution,’ the word ‘prosecution’ is not a particularly apt description of the underlying civil action. The Restatement uses the term ‘wrongful use of civil proceedings’ to refer to the tort.” (5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 486, internal citations omitted.)
  • Government Code section 821.6 provides: “A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.”
  • “To establish a cause of action for the malicious prosecution of a civil proceeding, a plaintiff must plead and prove 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; (2) was brought without probable cause; and (3) was initiated with malice.” (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50 [118 Cal.Rptr. 184, 529 P.2d 608], internal citations omitted.)
  • “The remedy of a malicious prosecution action lies to recompense the defendant who has suffered out of pocket loss in the form of attorney fees and costs, as well as emotional distress and injury to reputation because of groundless allegations made in pleadings which are public records.” (Sagonowsky v. More (1998) 64 Cal.App.4th 122, 132 [75 Cal.Rptr.2d 118], internal citations omitted.)
  • “The malicious commencement of a civil proceeding is actionable because it harms the individual against whom the claim is made, and also because it threatens the efficient administration of justice. The individual is harmed because he is compelled to defend against a fabricated claim which not only subjects him to the panoply of psychological pressures most civil defendants suffer, but also the additional stress of attempting to resist a suit commenced out of spite or ill will, often magnified by slanderous allegations in the pleadings.” (Merlet v. Rizzo (1998) 64 Cal.App.4th 53, 59 [75 Cal.Rptr.2d 83], internal citation omitted.)
  • “[The litigation privilege of Civil Code section 47] has been interpreted to apply to virtually all torts except malicious prosecution.” (Kimmel v. Goland (1990) 51 Cal.3d 202, 209 [271 Cal.Rptr. 191, 793 P.2d 524].)
  • “There does not appear to be any good reason not to impose liability upon a person who inflicts harm by aiding or abetting a malicious prosecution which someone else has instituted.” (Lujan v. Gordon (1977) 70 Cal.App.3d 260, 264 [138 Cal.Rptr. 654].)
  • “[A] cause of action for malicious prosecution lies when predicated on a claim for affirmative relief asserted in a cross-pleading even though intimately related to a cause asserted in the complaint.” (Bertero, supra, 13 Cal.3d at p. 53.)
  • “A claim for malicious prosecution need not be addressed to an entire lawsuit; it may . . . be based upon only some of the causes of action alleged in the underlying lawsuit.” (Franklin Mint Co. v. Manatt, Phelps & Phillips, LLP (2010) 184 Cal.App.4th 313, 333 [109 Cal.Rptr.3d 143].)
  • “[A] lawyer is not immune from liability for malicious prosecution simply because the general area of law at issue is complex and there is no case law with the same facts that establishes that the underlying claim was untenable. Lawyers are charged with the responsibility of acquiring a reasonable understanding of the law governing the claim to be alleged. That achieving such an understanding may be more difficult in a specialized field is no defense to alleging an objectively untenable claim.” (Franklin Mint Co., supra, 184 Cal.App.4th at p. 346.)
  • “Our repeated references in Bertero to the types of harm suffered by an ‘individual’ who is forced to defend against a baseline suit do not indicate. . . that a malicious prosecution action can be brought only by an individual. On the contrary, there are valid policies which would be furthered by allowing nonindividuals to sue for malicious prosecution.” (City of Long Beach v. Bozek (1982), 31 Cal.3d 527, 531 [183 Cal.Rptr. 86, 645 P.2d 137], reiterated on remand from United States Supreme Court at 33 Cal.3d 727 [but holding that public entity cannot sue for malicious prosecution].)
  • “[T]he courts have refused to permit malicious prosecution claims when they are based on a prior proceeding that is (1) less formal or unlike the process in the superior court (i.e., a small claims hearing, an investigation or application not resulting in a formal proceeding), (2) purely defensive in nature, or (3) a continuation of an existing proceeding.” (Merlet, supra, 64 Cal.App.4th at p. 60.)
  • “[I]t is not enough that the present plaintiff (former defendant) prevailed in the action. The termination must ‘ “reflect on the merits,” ’ and be such that it ‘tended to indicate [the former defendant’s] innocence of or lack of responsibility for the alleged misconduct.’ ” (Drummond v. Desmarais (2009) 176 Cal.App.4th 439, 450 [98 Cal.Rptr.3d 183], internal citations omitted.)
  • “ ‘[A] voluntary dismissal on technical grounds, such as lack of jurisdiction, laches, the statute of limitations or prematurity, does not constitute a favorable termination because it does not reflect on the substantive merits of the underlying claim…’ ” (Drummond, supra, 176 Cal.App.4th at p. 456.)
  • “[A] malicious prosecution plaintiff is not precluded from establishing favorable termination where severable claims are adjudicated in his or her favor.” (Sierra Club Found., supra, 72 Cal.App.4th at p. 1153, internal citation omitted.)
  • “Where a proceeding is terminated other than on the merits, the reasons underlying the termination must be examined to see if it reflects the opinion of the court or the prosecuting party that the action would not succeed. If a conflict arises as to the circumstances explaining a failure to prosecute an action further, the determination of the reasons underlying the dismissal is a question of fact.” (Fuentes, supra, 38 Cal.App.4th at p. 1808, internal citations omitted.)
  • “[W]hen a dismissal results from negotiation, settlement, or consent, a favorable termination is normally not recognized. Under these latter circumstances, the dismissal reflects ambiguously on the merits of the action.” (Weaver v. Superior Court (1979) 95 Cal.App.3d 166, 184—185 [156 Cal.Rptr. 745], internal citations omitted, disapproved on other grounds in Sheldon Appel Co., supra, 47 Cal.3d at p. 882.)
  • “ ‘Should a conflict arise as to the circumstances explaining the failure to prosecute, the trier of fact must exercise its traditional role in deciding the conflict.’” (Weaver, supra, 95 Cal.App.3d at p. 185, original italics, internal citations omitted.)
  • “Not every case in which a terminating sanctions motion is granted necessarily results in a ‘favorable termination.’ But where the record from the underlying action is devoid of any attempt during discovery to substantiate allegations in the complaint, and the court’s dismissal is justified by the plaintiff’s lack of evidence to submit the case to a jury at trial, a prima facie showing of facts sufficient to satisfy the ‘favorable termination’ element of a malicious prosecution claim is established …” (Daniels v. Robbins (2010) 182 Cal.App.4th 204, 219 [105 Cal.Rptr.3d 683].)
  • “ ‘Probable cause exists when a cause of action is, objectively speaking, legally tenable.’ . . . The claim need not be meritorious in fact, but only ‘ “arguably tenable …” ’ ” (Drummond, supra, 176 Cal.App.4th at p. 453, original italics, internal citations omitted.)
  • “[T]he existence or absence of probable cause has traditionally been viewed as a question of law to be determined by the court, rather than a question of fact for the jury … [¶] [It] requires a sensitive evaluation of legal principles and precedents, a task generally beyond the ken of lay jurors …” (Sheldon Appel Co., supra, 47 Cal.3d at p. 875.)
  • “When there is a dispute as to the state of the defendant’s knowledge and the existence of probable cause turns on resolution of that dispute, . . . the jury must resolve the threshold question of the defendant’s factual knowledge or belief. Thus, when . . . there is evidence that the defendant may have known that the factual allegations on which his action depended were untrue, the jury must determine what facts the defendant knew before the trial court can determine the legal question whether such facts constituted probable cause to institute the challenged proceeding.” (Sheldon Appel Co., supra, 47 Cal.3d at p. 881, internal citations omitted.)
  • “Whereas the malice element is directly concerned with the subjective mental state of the defendant in instituting the prior action, the probable cause element calls on the trial court to make an objective determination of the ‘reasonableness’ of the defendant’s conduct, i.e., to determine whether, on the basis of the facts known to the defendant, the institution of the prior action was legally tenable.” (Sheldon Appel Co., supra, 47 Cal.3d at p. 878, original italics.)
  • “ ‘The facts to be analyzed for probable cause are those known to the defendant [in the malicious prosecution action] at the time the underlying action was filed.’ ” (Walsh v. Bronson (1988) 200 Cal.App.3d 259, 264 [245 Cal.Rptr. 888], internal citations omitted.)
  • “A litigant will lack probable cause for his action either if he relies upon facts which he has no reasonable cause to believe to be true, or if he seeks recovery upon a legal theory which is untenable under the facts known to him.” (Soukup v. Law Offıces of Herbert Hafif (2006) 39 Cal.4th 260, 292 [46 Cal.Rptr.3d 638, 139 P.3d 30].)
  • “ ‘[T]here may be situations where denial of summary judgment should not irrefutably establish probable cause. For example, if denial of summary judgment was induced by materially false facts submitted in opposition, equating denial with probable cause might be wrong.
  • Summary judgment might have been granted but for the false evidence.’ ” (Antounian v. Louis Vuitton Malletier (2010) 189 Cal.App.4th 438, 451 [117 Cal.Rptr.3d 3].)

  • “[T]he fraud exception requires ‘ “knowing use of false and perjured testimony.” ’ ” (Antounian, supra, 189 Cal.App.4th at p. 452.)
  • “Probable cause may be present even where a suit lacks merit… Suits which all reasonable lawyers agree totally lack merit—that is, those which lack probable cause—are the least meritorious of all meritless suits. Only this subgroup of meritless suits present[s] no probable cause.” (Roberts v. Sentry Life Insurance (1999) 76 Cal.App.4th 375, 382 [90 Cal.Rptr.2d 408].)
  • “[A]n attorney may be held liable for malicious prosecution for continuing to prosecute a lawsuit discovered to lack probable cause.” (Zamos v. Stroud (2004) 32 Cal.4th 958, 970 [12 Cal.Rptr.3d 54, 87 P.3d 802].)
  • “California courts have held that victory at trial, though reversed on appeal, conclusively establishes probable cause.” (Roberts, supra, 76 Cal.App.4th at p. 383.)
  • “As an element of the tort of malicious prosecution, malice at its core refers to an improper motive for bringing the prior action. As an element of liability it reflects the core function of the tort, which is to secure compensation for harm inflicted by misusing the judicial system, i.e., using it for something other than to enforce legitimate rights and secure remedies to which the claimant may tenably claim an entitlement. Thus the cases speak of malice as being present when a suit is actuated by hostility or ill will, or for some purpose other than to secure relief. It is also said that a plaintiff acts with malice when he asserts a claim with knowledge of its falsity, because one who seeks to establish such a claim ‘can only be motivated by an improper purpose.’ A lack of probable cause will therefore support an inference of malice.” (Drummond, supra, 176 Cal.App.4th at pp. 451—452, original italics, internal citations omitted.)
  • “Because malice concerns the former plaintiff’s actual mental state, it necessarily presents a question of fact.” (Drummond, supra, 176 Cal.App.4th at p. 452.)
  • “Negligence does not equate with malice. Nor does the negligent filing of a case necessarily constitute the malicious prosecution of that case.” (Grindle v. Lorbeer (1987) 196 Cal.App.3d 1461, 1468 [242 Cal.Rptr. 562].)
  • “The motive of the defendant must have been something other than that of bringing a perceived guilty person to justice or the satisfaction in a civil action of some personal or financial purpose. The plaintiff must plead and prove actual ill will or some improper ulterior motive. It may range anywhere from open hostility to indifference.” (Downey Venture v. LMI Insurance Co. (1998) 66 Cal.App.4th 478, 494 [78 Cal.Rptr.2d 142], internal citations omitted.)
  • “Suits with the hallmark of an improper purpose are those in which: ‘ “. . . (1) the person initiating them does not believe that his claim may be held valid; (2) the proceedings are begun primarily because of hostility or ill will; (3) the proceedings are initiated solely for the purpose of depriving the person against whom they are initiated of a beneficial use of his property; (4) the proceedings are initiated for the purpose of forcing a settlement which has no relation to the merits of the claim.” ’ ” (Sierra Club Found., supra, 72 Cal.App.4th at pp. 1156—1157.)
  • “Although Zamos [supra] did not explicitly address the malice element of a malicious prosecution case, its holding and reasoning compel us to conclude that malice formed after the filing of a complaint is actionable.” (Daniels, supra, 182 Cal.App.4th at p. 226.)

Secondary Sources

5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 471, 474, 477—484, 486—512

4 Levy et al., California Torts, Ch. 43, Malicious Prosecution and Abuse of Process, §§ 43.01—43.06 (Matthew Bender)

31 California Forms of Pleading and Practice, Ch. 357, Malicious Prosecution and Abuse of Process, §§ 357.10—357.32 (Matthew Bender)

14 California Points and Authorities, Ch. 147, Malicious Prosecution and Abuse of Process, §§ 147.20—147.53 (Matthew Bender)