The Guide is an invaluable online tool for litigation and transactional attorneys. The Guide provides for more than 70 common law causes of action:

- Each action’s elements;
- The most recent state and federal cases that cite the actions’ elements;
- The applicable statute of limitations for each action; and
- Defenses to each cause of action.
- AND, The Guide is updated annually.

FREE – No credit card or payment required. Testimonials

Malicious Prosecution

1 Elements and Case Citations

To establish a cause of action for malicious prosecution, a plaintiff must demonstrate that the prior action

(1) was initiated by or at the direction of the defendant and legally terminated in the plaintiff's favor,
(2) was brought without probable cause, and
(3) was initiated with malice.

Siebel v. Mittlesteadt, 41 Cal. 4th 735, 740 (2007).

“Malicious prosecution actions have traditionally been disfavored as potentially chilling the right to pursue legal redress and report crime. . . [but] malicious prosecution suits are not barred simply because they are disfavored.”  Id.

“To determine whether a party has received a favorable termination, we consider  ‘the judgment as a whole in the prior action … .’ Victory following a trial on the merits is not required. Rather, ‘the termination must reflect the merits of the action and the plaintiff's innocence of the misconduct alleged in the lawsuit.’”  Id. at 741 (internal quotation marks omitted).

California Code of Civil Procedure section 425.18 addresses malicious prosecution actions in a “SLAPPback” context.  It defines “SLAPPback” as “any cause of action for malicious prosecution or abuse of process arising from the filing or maintenance of a prior cause of action that has been dismissed pursuant to a special motion to strike under Section 425.16.”  Cal. Code Civ. Proc. § 425.18(b)(1).  Under section 425.16(b)(1), “[a] cause of action against a person arising from any act of that person in furtherance of the person'’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”


California Supreme Court: Siebel v. Mittlesteadt, 41 Cal. 4th 735, 740 (2007).

California 1st Dist.: Robinzine v. Vicory, 143 Cal. App. 4th 1416, 1422 (2006).

California 2d Dist.:  Greene v. Bank of America, 216 Cal. App. 4th 454, 464-65 (2013); Silas v. Arden, 213 Cal. App. 4th 75, 89 (2012).

California 3d Dist.: Kreeger v. Wanland, 141 Cal. App. 4th 826, 832 (2006).

California 4th Dist.:  Yee v. Cheung, 220 Cal. App. 4th 184, 199 (2013).

California 5th Dist.: Palmer v. Zaklama, 109 Cal. App. 4th 1367, 1382 (2003).

California 6th Dist.: Kurz v. Syrus Systems, LLC, 221 Cal. App. 4th 748, 759 (2013).


United States Court of Appeal for the 9th Circuit: Subramanian v. QAD, Inc., 494 Fed. Appx. 826, 827 (9th Cir. 2012).

Central District:Trinity Christian Ctr. of Santa Ana, Inc. v. McVeigh, No. SACV 13-1334 DOC (RNBx), 2013 U.S. Dist. LEXIS 157125, at *24 (C.D. Cal. Oct. 31, 2013).

Eastern District: Pleasant v. Turner, No. 1:13-cv-00329 LJO-GSA, 2013 U.S. Dist. LEXIS 154553, at *10-11 (E.D. Cal. Oct. 28, 2013).

Northern District:Killian v. City of Monterey, No. 5:12-cv-05418-PSG, 2013 U.S. Dist. LEXIS 175306, at *20 & n.118 (ND. Cal. Dec. 13, 2013).

Southern District: Collins v. San Diego Metro. Transit Sys., No. 3:13-cv-0960-AJB-WMC, 2013 U.S. Dist. LEXIS 160638, at *5-6 (S.D. Cal. Nov. 7, 2013).

2 Defenses to Claim for Malicious Prosecution

(1)   Cal. Code Civ. Proc. § 431.30(b)(2) (pleading affirmative defenses), and other standard defenses.  See Chapter 1 for all defenses.

(2)   Statute of Limitations: Cal. Code Civ. Proc. § 335.1 (two years) from the date of favorable termination; Cal. Code Civ. Proc. § 340.6 (one year – actions against attorneys).  “The principle is well established that the cause of action for malicious prosecution first accrues at the conclusion of the litigation in favor of the party allegedly prosecuted maliciously.”  Babb v. Superior Court, 3 Cal. 3d 841, 846 (1971).

(3)    Defendant brought proceeding on reliance of advice of counsel.  See Mabie v. Hyatt, 61 Cal. App. 4th 581, 597-598 (1998).

(4)   No Litigation Privilege:  Code of Civil Procedure section 47(b)’s litigation privilege does not apply to malicious prosecution actions.  See, e.g., Komarova v. National Credit Acceptance, Inc., 175 Cal. App. 4th 324, 336 (2009).

(5)    Defendant had probable cause to initiate a prior judicial proceeding. See Puryear v. Golden Bear Ins. Co., 66 Cal. App. 4th 1188, 1197 (discussing the requirement of probable cause for civil proceedings).

(6) Prevailing Party is not Necessarily a Favorable Termination:  “One may be a prevailing party for attorney fee purposes yet not have obtained a favorable termination for malicious prosecution purposes. . . . ‘[A] “‘favorable’ termination does not occur merely because a party complained against has prevailed in an underlying action… . If the termination does not relate to the merits—reflecting on neither innocence of nor responsibility for the alleged misconduct—the termination is not favorable in the sense it would support a subsequent action for malicious prosecution.”’”  State of California ex rel. Standard Elevator Co., Inc. v. West Bay Builders, Inc., 197 Cal. App. 4th 963, 981 (2011).