California Civil Jury Instructions (CACI) (2017)

1500. Former Criminal Proceeding

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1500.Former Criminal Proceeding—Essential Factual Elements
[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, June 2015
Directions for Use
Give this instruction in a malicious prosecution case based on an underlying
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criminal prosecution. If there is an issue as to what it means to be “actively
involved” in element 1, also give CACI No. 1504, Former Criminal
Proceeding—“Actively Involved” Explained.
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
• Public Employee Immunity. Government Code section 821.6.
“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.)
• “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.)
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• “[T]he effect of the approved instruction [in Dreux v. Domec (1861) 18 Cal. 83]
was to impose liability upon one who had not taken part until after the
commencement of the prosecution.” (Lujan v. Gordon (1977) 70 Cal.App.3d
260, 263 [138 Cal.Rptr. 654].)
• “When, as here, the claim of malicious prosecution is based upon initiation of a
criminal prosecution, the question of probable cause is whether it was
objectively reasonable for the defendant . . . to suspect the plaintiff . . . had
committed a crime.” (Greene v. Bank of America (2013) 216 Cal.App.4th 454,
465 [156 Cal.Rptr.3d 901].)
• “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.)
• “Admittedly, the fact of the grand jury indictment gives rise to a prima facie
case of probable cause, which the malicious prosecution plaintiff must rebut.
However, as respondents’ own authorities admit, that rebuttal may be by proof
that the indictment was based on false or fraudulent testimony.” (Williams v.
Hartford Ins. Co. (1983) 147 Cal.App.3d 893, 900 [195 Cal.Rptr. 448].)
• “Acquittal of the criminal charge, in the criminal action, did not create a
conflict of evidence on the issue of probable cause. [Citations.]” (Verdier v.
Verdier (1957) 152 Cal.App.2d 348, 352, fn. 3 [313 P.2d 123].)
• “ ‘[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
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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.)
• “Generally, the requirements of the doctrine of collateral estoppel ‘will be met
when courts are asked to give preclusive effect to preliminary hearing probable
cause findings in subsequent civil actions for false arrest and malicious
prosecution. [Citation.]’ ‘A determination of probable cause at a preliminary
hearing may preclude a suit for false arrest or for malicious prosecution’].)
‘One notable exception to this rule would be in a situation where the plaintiff
alleges that the arresting officer lied or fabricated evidence presented at the
preliminary hearing. [Citation.] When the officer misrepresents the nature of the
evidence supporting probable cause and that issue is not raised at the
preliminary hearing, a finding of probable cause at the preliminary hearing
would not preclude relitigation of the issue of integrity of the evidence.’
Defendants argue, and we agree, that the stated exception itself contains an
exception—i.e., if the plaintiff alleges that the arresting officer lied or fabricated
evidence at the preliminary hearing, plaintiff challenges that evidence at the
preliminary hearing as being false, and the magistrate decides the credibility
issue in the arresting officer’s favor, then collateral estoppel still may preclude
relitigation of the issue in a subsequent civil proceeding involving probable
cause.” (Greene v. Bank of America (2015) 236 Cal.App.4th 922, 933 [186
Cal.Rptr.3d 887], 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.)
• “ ‘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], disapproved on other grounds in Sheldon Appel Co., supra, 47
Cal.3d at p. 882, original italics, internal citations omitted.)
• “ ‘For purposes of a malicious prosecution claim, malice “is not limited to
actual hostility or ill will toward the plaintiff. . . .” [Citation.]’ ‘[I]f the
defendant had no substantial grounds for believing in the plaintiff’s guilt, but,
nevertheless, instigated proceedings against the plaintiff, it is logical to infer
that the defendant’s motive was improper.’ ” (Greene, supra, 216 Cal.App.4th at
pp. 464–465, internal citation omitted.)
• “Malice may be inferred from want of probable cause, but want of probable
cause cannot be inferred from malice, but must be affirmatively shown by the
plaintiff.” (Verdier, supra, 152 Cal.App.2d at p. 354.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 469–485, 511
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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)
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