malicious prosecution

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Malicious prosecution is the filing of a lawsuit for an improper purpose, and without grounds or probable cause. The improper lawsuit may either be civil or criminal in nature. To remedy an act of malicious prosecution, an alleged victim files a malicious prosecution action.

A malicious prosecution action is a civil tort claim for damages caused by malicious prosecution. To prove malicious prosecution in California, the plaintiff must show: 

  • The defendant was actively involved in bringing or continuing the lawsuit; 
  • The lawsuit ended in the plaintiff’s favor; 
  • No reasonable person in the defendant’s circumstances would have believed that there were reasonable grounds to bring the lawsuit against the plaintiff; 
  • The defendant acted primarily for a purpose other than succeeding on the merits of the claim;
  • The plaintiff was harmed; and 
  • The defendant’s conduct was a substantial factor in causing the plaintiff’s harm. 
  • Most jurisdictions follow these elements but may vary on what constitutes each element. 

See also: Pierre v. City of New York (2021); Thompson v. Clark, 596 U.S. (2022)

Because malicious prosecution is a civil action, the award for a successful claim is damages for the consequences of the previous action.

There is no cause of action for malicious prosecution under federal law but malicious prosecution in federal cases may still be tried under state tort claims. Malicious prosecution refers to previous improper civil or criminal proceedings in most jurisdictions. However, some jurisdictions refer to malicious prosecution only for a prior criminal proceeding whereas vexatious litigation would be based on a prior civil proceeding. The elements of malicious prosecution and vexatious litigation actions are essentially the same. 

[Last updated in July of 2023 by the Wex Definitions Team]