CACI No. 1500. Former Criminal Proceeding - Essential Factual Elements
Judicial Council of California Civil Jury Instructions (2024 edition)
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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/nonbinary pronoun/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 arrested [and 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 [and 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/nonbinary pronoun/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 [and
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, May 2018
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.
In elements 1 and 3 and in the next-to-last paragraph, include the bracketed
references to prosecution if the arrest was without a warrant. Whether prosecution is
required in an arrest on a warrant has not definitively been resolved. (See Van
Audenhove v. Perry (2017) 11 Cal.App.5th 915, 919-925 [217 Cal.Rptr.3d 843].)
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.)
• “[A] cause of action for malicious prosecution cannot be premised on an arrest
that does not result in formal charges (at least when the arrest is not pursuant to
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a warrant).” (Van Audenhove,supra, 11 Cal.App.5th at p. 917 [rejecting Rest.2d
Torts, § 654. subd. (2)(c)].)
• “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.)
• “[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
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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].)
• “[I]n most cases, a person who merely alerts law enforcement to a possible
crime . . . is not liable if . . . law enforcement, on its own, after an
independent investigation, decides to prosecute.” (Cox v. Griffın (2019) 34
Cal.App.5th 440, 452 [246 Cal.Rptr.3d 185].)
• “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.)
• “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.)
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• “ ‘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 (11th ed. 2017) Torts, §§ 552-570, 605
4 Levy et al., California Torts, Ch. 43, Malicious Prosecution and Abuse of Process,
§ 43.01 (Matthew Bender)
31 California Forms of Pleading and Practice, Ch. 357, Malicious Prosecution and
Abuse of Process, § 357.10 et seq. (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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