Malicious Prosecution, Wrongful Civil Litigation & Abuse of Process

Malicious Prosecution of a Criminal Charge Elements: 1) D instituted or instigated a prosecution 2) without probable cause, and 3) with malice, and 4) the criminal prosecution terminated favorably to the plaintiff, and 5) the plaintiff suffered damages as a result

Malicious Prosecution of a Criminal Charge Defenses: →Guilt of the plaintiff, in fact →Immunity →Waiver/ release of claim

Tortious Civil Litigation: Malicious Prosecution of a Civil Claim Elements: 1) D instituted or instigated a civil case 2) without probable cause, and 3) with malice, and 4) the civil case terminated favorably to the plaintiff, and 5) the plaintiff suffered damages as a result (minority: P must show “special injury”)

Illinois Statute on special injury proof in civil malicious prosecution cases (735 ILCS 5/2-109) “In all cases alleging malicious prosecution arising out of proceedings which sought damages for injuries or death by reason of medical, hospital, or other healing art malpractice, the plaintiff need not plead or prove special injury to sustain his or her cause of action. In all such cases alleging malicious prosecution, no exemplary or punitive damages shall be allowed.”

Abuse of Process Elements: 1) Legal procedure set in motion by D (which can be in proper form, and with probable cause), 2) perverted to accomplish a purpose for which it was not designed, and 3) a willful act in the use of that process, not proper to the regular conduct of the proceeding (many states: this act must be after the summons that initiated the suit)

“Malicious abuse of process”: a new tort in New Mexico Elements: 1) D initiated civil proceedings, and 2) D did an act in the use of process other than one that would be proper in the regular prosecution of a claim, and 3) One of D’s primary motives was to accomplish an illegitimate end by misusing process, and 4) P suffered damages as a result

First Amendment impacts on malicious prosecution and abuse of process torts Prof’l Real Estate Investors (U.S. 1993): First Amendment “petition” clause protects seeking relief from courts, executive or legislative branches -- but this protection is lost if the lawsuit is a “sham”: proved if P shows (1) the suit is objectively baseless; and (2) that the D was attempting to directly interfere with the business relationship of a competitor through the use of government process

First Amendment impacts on malicious prosecution and abuse of process torts Cal. Code Civ. Proc. § 425.16(b): anti-SLAPP “Any 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 or 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.”