California Civil Jury Instructions (CACI) (2017)

1502. Wrongful Use of Administrative Proceedings

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1502.Wrongful Use of Administrative Proceedings
[Name of plaintiff] claims that [name of defendant] wrongfully brought an
administrative proceeding 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 administrative proceeding;
2. That [name of administrative body] did not conduct an
independent investigation;
[3. That the proceeding ended in [name of plaintiff]’s favor;]
[4. That no reasonable person in [name of defendant]’s circumstances
would have believed that there were reasonable grounds to bring
the proceeding against [name of plaintiff];]
5. That [name of defendant] acted primarily for a purpose other
than succeeding on the merits of the claim;
6. That [name of plaintiff] was harmed; and
7. 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 3 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 4 above, whether a reasonable
person in [name of defendant]’s circumstances would have believed that
there were there were reasonable grounds for bringing the proceeding
against [name of plaintiff]. 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
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0015
Directions for Use
Malicious prosecution requires that the proceeding have ended in the plaintiff’s
favor (element 3) and that the defendant did not reasonably believe that there were
any grounds (probable cause) to initiate the proceeding (element 4). 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 didn’t 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 4 and also the bracketed part of the
instruction that refers to element 4.
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 3 and also the bracketed part of the instruction that refers to
element 3. 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 5 expresses the malice requirement.
Sources and Authority
• Public Employee Immunity. Government Code section 821.6.
“ ‘Where the prosecuting officer acts on an independent investigation of his own
instead of on the statement of facts by the party making the complaint, the
latter has not caused the prosecution and cannot be held liable in an action for
malicious prosecution.’ ” (Werner v. Hearst Publications, Inc. (1944) 65
Cal.App.2d 667, 673 [151 P.2d 308], internal citation omitted.)
• “We adopt the rule set forth in section 680 of the Restatement of Torts and hold
that an action for malicious prosecution may be founded upon the institution of
a proceeding before an administrative agency.” (Hardy v. Vial (1957) 48 Cal.2d
577, 581 [311 P.2d 494].)
• 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.”
• “ ‘Where the prosecuting officer acts on an independent investigation of his own
instead of on the statement of facts by the party making the complaint, the
latter has not caused the prosecution and cannot be held liable in an action for
malicious prosecution.’ ” (Werner v. Hearst Publications, Inc. (1944) 65
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Cal.App.2d 667, 673 [151 P.2d 308], internal citation omitted.)
• “[W]e hold that the State Bar, not respondents, initiated, procured or continued
the disciplinary proceedings of [plaintiff]. Therefore, [plaintiff] failed to allege
the elements required for a malicious prosecution of an administrative
proceeding against respondents.” (Stanwyck v. Horne (1983) 146 Cal.App.3d
450, 459 [194 Cal.Rptr. 228].)
• “The [Board of Medical Quality Assurance] is similar to the State Bar
Association. Each is empowered and directed to conduct an independent
investigation of all complaints from the public prior to the filing of an
accusation.” (Hogen v. Valley Hospital (1983) 147 Cal.App.3d 119, 125 [195
Cal.Rptr. 5], internal citation omitted.)
• “Hogen and Stanwyck placed an additional pleading burden upon the plaintiff in
a malicious prosecution case based upon the favorable termination of an
administrative proceeding. Those cases held that since it is the administrative
body, and not the individual initiating the complaint, which actually files the
disciplinary proceeding, a cause of action for malicious prosecution will not lie
if the administrative body conducts an independent preliminary investigation
prior to initiating disciplinary proceedings.” (Johnson v. Superior Court (1994)
25 Cal.App.4th 1564, 1568 [31 Cal.Rptr.2d 199].)
• “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 citation omitted.)
• The same rules for determining probable cause in the wrongful institution of
civil proceedings apply to cases alleging the wrongful institution of
administrative proceedings. (Nicholson v. Lucas (1994) 21 Cal.App.4th 1657,
1666, fn. 4 [26 Cal.Rptr.2d 778].)
• “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.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 513–516
4Levy et al., California Torts, Ch. 43, Malicious Prosecution and Abuse of
Process, §§ 43.01–43.06 (Matthew Bender)
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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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