California Civil Jury Instructions (CACI) (2017)

1504. Former Criminal Proceeding—“Actively Involved” Explained

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1504.Former Criminal Proceeding—“Actively Involved”
[Name of defendant] was “actively involved” in causing [name of plaintiff]
to be prosecuted [or in causing the continuation of the prosecution] if
after learning that there was no probable cause that [name of plaintiff]
had committed a crime, [he/she] sought out the police or prosecutorial
authorities and falsely reported facts to them indicating that [name of
plaintiff] had committed a crime. Merely giving testimony or responding
to law enforcement inquiries is not active involvement.
New June 2015
Directions for Use
Give this instruction in a malicious prosecution case arising from an earlier
criminal proceeding. This instruction explains what is meant by “active
involvement” in a criminal prosecution, as used in element 1 of CACI No. 1500,
Former Criminal Proceeding—Essential Factual Elements.
Sources and Authority
• “Although a criminal prosecution normally is commenced through the action of
government authorities, a private person may be liable for malicious prosecution
under certain circumstances based on his or her role in the criminal proceeding.
‘The relevant law is clear: “One may be civilly liable for malicious prosecution
without personally signing the complaint initiating the criminal proceeding.” ’ ”
(Zucchet v. Galardi (2014) 229 Cal.App.4th 1466, 1481 [178 Cal.Rptr.3d 363,
internal citation omitted.)
• “Malicious prosecution consists of initiating or procuring the arrest and
prosecution of another under lawful process, but from malicious motives and
without probable cause. . . . . [Italics in original.] The test is whether the
defendant was actively instrumental in causing the prosecution.’ ” (Sullivan v.
County of Los Angeles (1974) 12 Cal.3d 710, 720 [117 Cal. Rptr. 241, 527 P.2d
865], original italics.)
• “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.” (Greene v. Bank of America (2013) 216 Cal.App.4th 454,
464 [156 Cal.Rptr.3d 901].)
• “Public policy requires that ‘private persons who aid in the enforcement of the
law should be given an effective protection against the prejudice which is likely
to arise from the termination of the prosecution in favor of the accused.’ ”
(Cedars-Sinai Medical Ctr. v. Superior Court (1988) 206 Cal.App.3d 414, 418
[253 Cal.Rptr. 561].)
• “[M]erely giving testimony and responding to law enforcement inquiries in an
active criminal proceeding does not constitute malicious prosecution.” (Zucchet,
supra, 229 Cal.App.4th at p. 1482.)
• “[T]o create liability for malicious prosecution . . . [t]he person must ‘take
[some affirmative action to encourage the prosecution by way of advice or
pressure, as opposed to merely providing information.’ ” (Zucchet,supra, 229
Cal.App.4th at p. 1485.)
• “According to section 655 of the Restatement, ‘[a] private person who takes an
active part in continuing or procuring the continuation of criminal proceedings
initiated by himself or by another is subject to the same liability for malicious
prosecution as if he had then initiated the proceedings.’ ” (Zucchet,supra, 229
Cal.App.4th at p. 1483.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 476
4Levy et al., California Torts, Ch. 43, Malicious Prosecution and Abuse of
Process, § 43.03 (Matthew Bender)
31 California Forms of Pleading and Practice, Ch. 357, Malicious Prosecution and
Abuse of Process, § 357.19 (Matthew Bender)
1505–1509. Reserved for Future Use