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Malicious Prosecution Elements Get Clarified

To prevail in a malicious prosecution action under California law, a malicious prosecution plaintiff (the defendant in the underlying action) must show that:

(1) the plaintiff in the underlying action pursued a claim with subjective malice,

(2) the claim was brought without objective probable cause, and

(3) the underlying action was terminated on the merits in favor of the defendant.

In a recent case, Lane v. Bell (2018) Cal App LEXIS 79, the Court looked at the third element.  Can the underlying action be said to have been terminated in favor of the defendant if most, but not all, of the claims were found in favor of said defendant?

Favorable termination “is an essential element of the tort of malicious prosecution, and it is strictly enforced.” (Ferreira v. Gray, Cary, Ware & Freidenrich (2001) 87 Cal.App.4th 409, 413 [104 Cal. Rptr. 2d 683].) Noting that “‘[t]he theory underlying the requirement of favorable termination is that it tends to indicate the innocence of the accused,’” the Supreme Court in Casa Herrera expressly stated that “[t]o determine ‘whether there was a favorable termination,’ we ‘look at the judgment as a whole in the prior action.’” (Casa Herrera, supra, 32 Cal.4th at p. 341, italics added.) The basic question presented here is whether a partial victory by the malicious prosecution plaintiff in the underlying action can satisfy the favorable termination element where the malicious prosecution defendant also obtained a partial victory in the underlying action.

Lane v. Bell (2018) Cal App LEXIS 79, at 9

The Court  ultimately held that, because some of the claims were granted in favor of the plaintiff (in the underlying case), it cannot be said that the underlying action was terminated on the merits in favor of the defendant.

Mr. Serrano has been admitted to practice before California State and Federal Courts. He was named to the Super Lawyers’ 2012, 2013, 2014, 2015, and 2016 Southern California Rising Stars List, an honor awarded to no more than 2.5% of attorneys in Southern California each year. View Attorney Jean-Simon Serrano's Attorney Bio Here.

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