Legal Memorandum: Pleadings in a Malicious Prosecution Action


Area of Law: Litigation & Procedure
Keywords: Malicious prosecution; Pleadings; Intention of parties
Jurisdiction: California
Cited Cases: 74 P.3d 737; 121 Cal. Rptr. 2d 794; 295 P.2d 405; 765 P.2d 498; 602 P.2d 393; 217 Cal. App. 3d 589; 87 P.3d 802; 32 Cal. 4th 958; 254 Cal. Rptr. 336; 118 Cal. App. 4th 204; 114 Cal. App.4th 495; 46 Cal. 2d 375; 47 Cal. 3d 863; 99 Cal. App. 4th 1179
Cited Statutes: Civ. Proc. Code § 425.16; Restatement of Torts § 676
Date: 11/01/2005

Traditionally, the plaintiff in an action for malicious prosecution must plead and prove the following elements: “the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in . . . plaintiff’s favor; (2) was brought without probable cause; and (3) was initiated with malice.”  Zamos v. Stroud (2004) 32 Cal. 4th 958, 966, 87 P.3d 802, 12 Cal. Rptr. 3d 54, 60.  Significantly, however, continuing to prosecute an action after it is discovered to lack probable cause also will constitute malicious prosecution.  Id. at 970, 12 Cal. Rptr. 3d at 63-64.  In Zamos, the defendant presented evidence for its anti-SLAPP motion showing that, the facts available at the time the underlying case was filed were sufficient for a claim of fraud.  The plaintiff, however, presented evidence that shortly after the case was filed, he had given the defendant transcripts showing that the claim did not have merit.  Id. at 971, 12 Cal. Rptr. 3d at 64.  The anti-SLAPP motion was denied.  (Zamos is a case of first impression on the issue of continuing to prosecute an action as a basis for probable cause.)

After Zamos was decided, the elements of the cause of action for malicious prosecution have been restated to include the “continuing to prosecute” concept.  Thus, the plaintiff must show:

the prior underlying action (1) was commenced by or at the direction of the defendant, or the defendant continued to prosecute it after discovering […]


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