California Civil Jury Instructions (CACI)

1500. Former Criminal Proceeding

[Name of plaintiff] claims that [name of defendant] wrongfully caused a criminal proceeding to be brought 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 causing [name of plaintiff] to be prosecuted [or in causing the continuation of the prosecution];

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

[3. That no reasonable person in [name of defendant]’s circumstances would have believed that there were grounds for causing [name of plaintiff] to be arrested or prosecuted;]

4. That [name of defendant] acted primarily for a purpose other than to bring [name of plaintiff] to justice;

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 criminal proceeding 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 a reasonable person in [name of defendant]’s circumstances would have believed that there were grounds for causing [name of plaintiff] to be arrested or prosecuted. 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 criminal 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, it may require the jury 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.

Element 4 expresses the malice requirement.

Sources and Authority

  • Restatement Second of Torts section 653 provides:

    A private person who initiates or procures the institution of criminal proceedings against another who is not guilty of the offense charged is subject to liability for malicious prosecution if

    (a) he initiates or procures the proceedings without probable cause and primarily for a purpose other than that of bringing an offender to justice, and

    (b) the proceedings have terminated in favor of the accused.

  • Restatement Second of Torts section 657 provides: “The fact that the person against whom criminal proceedings are instituted is guilty of the crime charged against him, is a complete defense against liability for malicious prosecution.”
  • Restatement Second of Torts, section 673 provides:

    (1) In an action for malicious prosecution the court determines whether

    (a) the proceedings of which the plaintiff complains were criminal in character;

    (b) the proceedings were terminated in favor of the plaintiff;

    (c) the defendant had probable cause for initiating or continuing the proceedings;

    (d) the harm suffered by the plaintiff is a proper element for the jury to consider in assessing damages.

    (2) In an action for malicious prosecution, subject to the control of the court, the jury determines

    (a) the circumstances under which the proceedings were initiated in so far as this determination may be necessary to enable the court to determine whether the defendant had probable cause for initiating or continuing the proceedings;

    (b) whether the defendant acted primarily for a purpose other than that of bringing an offender to justice;

    (c) the circumstances under which the proceedings were terminated;

    (d) the amount that the plaintiff is entitled to recover as damages;

    (e) whether punitive damages are to be awarded, and if so, their amount.

  • 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.”
  • “Malicious prosecution consists of initiating or procuring the arrest and prosecution of another under lawful process, but from malicious motives and without probable cause.” (Cedars-Sinai Medical Center v. Superior Court (1988) 206 Cal.App.3d 414, 417 [253 Cal.Rptr. 561], internal citation 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 Supreme Court has observed: “Cases dealing with actions for malicious prosecution against private persons require that the defendant has at least sought out the police or prosecutorial authorities and falsely reported facts to them indicating that plaintiff has committed a crime.” (Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710, 720 [117 Cal.Rptr. 241, 527 P.2d 865], internal citations omitted.)
  • “The test is whether the defendant was actively instrumental in causing the prosecution.” (Cedars-Sinai Medical Center, supra, 206 Cal.App.3d at p. 417.)
  • In Lujan v. Gordon (1977) 70 Cal.App.3d 260, 263 [138 Cal.Rptr. 654], the court observed that the Supreme Court in an 1861 case had approved a jury instruction whose effect “was to impose liability upon one who had not taken part until after the commencement of the prosecution.”
  • “Originally the common law tort of malicious prosecution was limited to criminal cases, but the tort was extended to afford a remedy for the malicious prosecution of a civil action.” (Merlet v. Rizzo (1998) 64 Cal.App.4th 53, 58 [75 Cal.Rptr.2d 83], internal citation omitted.)
  • “ ‘Probable cause’ [is defined] as ‘a suspicion founded upon circumstances sufficiently strong to warrant a reasonable man in the belief that the charge is true.’ ” (Clary v. Hale (1959) 175 Cal.App.2d 880, 886 [1 Cal.Rptr. 91], internal citation omitted.)
  • “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.)
  • In Bertero [Bertero v. National General Corp. (1974) 13 Cal.3d 43 [118 Cal.Rptr. 184, 529 P.2d 608]], the court approved a jury instruction stating that liability can be found if the prior action asserts a legal theory that is brought without probable cause, even if alternate theories are brought with probable cause. (Bertero, supra, 13 Cal.3d at pp. 55—57.) This holding was reaffirmed in Crowley v. Katleman (1994) 8 Cal.4th 666, 695 [34 Cal.Rptr.2d 386, 881 P.2d 1083].)
  • “ ‘[T]he plaintiff in a malicious prosecution action must plead and prove that the prior judicial proceeding of which he complains terminated in his favor.’ Termination of the prior proceeding is not necessarily favorable simply because the party prevailed in the prior proceeding; the termination must relate to the merits of the action by reflecting either on the innocence of or lack of responsibility for the misconduct alleged against him.” (Sagonowsky, supra, 64 Cal.App.4th at p. 128, internal citations omitted.)
  • “ ‘The theory underlying the requirement of favorable termination is that it tends to indicate the innocence of the accused, and coupled with the other elements of lack of probable cause and malice, establishes the tort, that is, the malicious and unfounded charge of crime against an innocent person.’ ” (Cote v. Henderson (1990) 218 Cal.App.3d 796, 804 [267 Cal.Rptr. 274], quoting Jaffe v. Stone (1941) 18 Cal.2d 146, 150 [114 P.2d 335].)
  • “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.)
  • “The plea of nolo contendere is considered the same as a plea of guilty. Upon a plea of nolo contendere the court shall find the defendant guilty, and its legal effect is the same as a plea of guilty for all purposes. It negates the element of a favorable termination, which is a prerequisite to stating a cause of action for malicious prosecution.” (Cote, supra, 218 Cal.App.3d at p. 803, internal citation omitted.)
  • In Verdier v. Verdier (1957) 152 Cal.App.2d 348, 352, fn. 3 [313 P.2d 123], the court observed that “[a]cquittal of the criminal charge, in the criminal action, did not create a conflict of evidence on the issue of probable cause. [Citations.]”
  • “ ‘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 v. Superior Court (1979) 95 Cal.App.3d 166, 185 [156 Cal.Rptr. 745], original italics, internal citations omitted, disapproved on other grounds in Sheldon Appel Co., supra, 47 Cal.3d at p. 882.)

Secondary Sources

5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 469—485, 511

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)