Being sued without a sound legal basis can cost money, interrupt operations, and damage relationships. But an unsuccessful lawsuit is not automatically malicious prosecution, and aggressive litigation is not automatically abuse of process. For California businesses and individuals, these claims require specific facts. This article explains the differences, the evidence that matters, and the procedural risks to consider before bringing a new lawsuit over an earlier one.
Malicious prosecution: California requirements
A civil malicious prosecution claim generally requires proof that the defendant initiated or continued a prior proceeding that ended favorably for the claimant, lacked probable cause, and acted with malice. Each requirement matters independently. Winning the earlier case does not establish the other elements.
- Favorable termination: The earlier proceeding must end in a way that reflects the merits and the claimant’s lack of liability. A settlement ordinarily does not qualify. A voluntary dismissal may qualify, but its circumstances matter; dismissal for a purely technical or procedural reason may not.
- Lack of probable cause: The question is generally whether the earlier claim was objectively legally tenable based on the facts known when it was pursued. A weak claim is not necessarily one without probable cause.
- Malice: The claimant must establish that the prior proceeding was initiated or continued primarily for an improper purpose or with an improper motive. Malice may involve actual hostility or an effort to obtain a collateral advantage. It may be shown through circumstantial evidence, but lack of probable cause alone does not establish malice, nor does mere dislike of the claimant.
In Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, the California Supreme Court explained the objective nature of probable cause. In Zamos v. Stroud (2004) 32 Cal.4th 958, the court recognized potential liability for continuing litigation after learning it lacked probable cause. Evidence discovered during a case can therefore matter, not just information available when it began.
Abuse of process concerns misuse of court procedures
Abuse of process focuses on how a legal procedure is used, rather than whether the entire lawsuit lacked a proper basis. It generally requires an ulterior purpose and a willful act using process in a way that is not proper in the regular conduct of the proceeding.
For example, using a subpoena or enforcement procedure for an ulterior purpose and in a manner not proper in the regular conduct of the proceeding may support an abuse-of-process claim. The specific process and the allegedly improper act must be identified. Merely filing a lawsuit with an improper motive generally is not enough.
Unlike malicious prosecution, abuse of process does not generally require favorable termination of the underlying case. However, an improper motive alone does not transform an otherwise authorized use of process into a valid claim. California courts distinguish misuse of a procedure from ordinary litigation pressure. Rusheen v. Cohen (2006) 37 Cal.4th 1048 discusses these requirements and the litigation privilege’s effect on an abuse-of-process claim.
Anti-SLAPP motions and the litigation privilege
Before filing either claim, evaluate California’s anti-SLAPP statute, Code of Civil Procedure section 425.16. A claim arising from protected litigation activity may face a special motion to strike. The defendant must identify protected acts that supply the elements of the challenged claim; the mere fact that litigation occurred is not enough. Statements made in judicial proceedings or in connection with issues under judicial review fall within section 425.16(e)(1) and (2) without a separate showing that they concern a public issue. If the defendant establishes that the claim arises from protected activity, the claimant must demonstrate a probability of prevailing by showing a legally sufficient claim supported by a prima facie factual showing. The supporting evidence must be admissible or capable of being presented in admissible form.
- Early evidence matters: Allegations alone may not be enough to defeat an anti-SLAPP motion.
- Discovery may pause: Filing the motion generally stays discovery, although a court may permit specified discovery for good cause.
- Fees are a risk: A prevailing anti-SLAPP defendant generally is entitled to attorney fees and costs.
The litigation privilege under Civil Code section 47(b) is a separate concern. It broadly protects qualifying communications in judicial proceedings. Malicious prosecution is a recognized exception, but abuse-of-process claims may be barred when based on privileged communications. Labeling conduct “abusive” does not avoid the privilege. As Rusheen explains, when the gravamen of the claim is privileged communicative conduct, the privilege can also extend to noncommunicative acts necessarily related to that communication, such as acts necessary to enforce a judgment. Mere association with litigation is not enough.
Evidence to preserve before evaluating a claim
A useful assessment starts with a complete record, not just the final ruling. Preserve materials lawfully available to you, including:
- Complaints, amended pleadings, motions, orders, and dismissal documents.
- Evidence showing what the opposing party knew and when they knew it.
- Correspondence explaining why a claim was pursued or dismissed.
- Subpoenas, writs, or other procedures allegedly used for an improper purpose.
- Attorney invoices and records of financial losses attributable to the challenged conduct.
Do not access private accounts or obtain documents through unauthorized means. Keep original files and their dates intact. If litigation is ongoing, coordinate evidence preservation with counsel and continue meeting existing court deadlines. A possible future claim does not excuse ignoring the present case.
Decide whether a separate lawsuit makes sense
These claims are not substitutes for defending the original lawsuit. Depending on the circumstances, objections, protective orders, sanctions requests, or other remedies within that case may address the problem more directly.
Before pursuing a separate action, assess each element, available damages, privilege defenses, anti-SLAPP exposure, and filing deadlines. Do not assume every potential defendant or theory has the same limitations period. The timing analysis can depend on who is sued, the alleged conduct, and when the claim accrued.
Itkin Law’s civil litigation practice assists businesses and individuals with evaluating disputes and available legal options. A focused review can distinguish an actionable misuse of litigation from conduct that is frustrating but legally protected.
Talk to a California business attorney
If you believe a baseless lawsuit or misused court procedure caused harm, discuss the record and potential risks with Itkin Law during a free consultation. Schedule a free consultation or call (424) 603-8888.
This article is attorney advertising and provides general information only. It is not legal advice and does not create an attorney–client relationship. The law changes, and this article reflects the law as of its publication date. Every situation is different — contact us to discuss how the law applies to your exact circumstances. See our full disclaimer.
