Contrasting the Torts of Malicious Prosecution and Abuse of Process


The related torts of malicious prosecution and abuse of process both vindicate the important personal rights to be free from unwarranted or abusive litigation tactics.  There are some important distinctions in the elements of each claim:

The common law tort of malicious prosecution originated as a remedy for an individual who had been subjected to a maliciously instituted criminal charge, but in California, as in most common law jurisdictions, the tort was long ago extended to afford a remedy for the malicious prosecution of a civil action. (Citations). Under the governing authorities, in order to establish a cause of action for malicious prosecution of either a criminal or civil proceeding, a plaintiff must demonstrate “that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff’s, favor [citations]; (2) was brought without probable cause [citations]; and (3) was initiated with malice [citations].”

(Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 871)

In contrast, the tort of abuse of process requires proof of two elements:

first, an ulterior purpose, and second, a wilful act in the use of the process not proper in the regular conduct of the proceeding. Some definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process, is required; and there is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions. The improper purpose usually takes the form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or the payment of money, by the use of the process as a threat or a club. There is, in other words, a form of extortion, and it is what is done in the course of negotiation, rather than the issuance or any formal use of the process itself, which constitutes the tort.’

(Spellens v. Spellens (1957) 49 Cal.2d 210, 232-33)

As succinctly put by one court:

Malicious prosecution and abuse of process are distinct. The former concerns a meritless lawsuit (and all the damage it inflicted). The latter concerns the misuse of the tools the law affords litigants once they are in a lawsuit (regardless of whether there was probable cause to commence that lawsuit in the first place).

Bidna v. Rosen (1993) 19 Cal.App.4th 27, 40

Three key differences in the torts:

  • California’s litigation privilege, which provides an absolute defense to most torts in California, does not apply to malicious prosecution actions.  (Silberg v. Anderson (1990) 50 Cal.3d 205, 215)
  • In abuse of process case, the prior defendant need not prove a favorable termination.  (Spellens v. Spellens (1957) 49 Cal.2d 210, 232).
  • Filing a lawsuit alone – even with an improper purposes is not a proper basis for an abuse of process action.  (Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1169).

This post is the seventh in an ongoing series of posts on the tort of malicious prosecution.  Jeffrey Lewis represented the prevailing parties in the malicious prosecution case of Videotape Plus, Inc. v. Lyons (2001) 89 Cal.App.4th 156.   Jeffrey Lewis and the other attorneys at Broedlow Lewis LLP are experienced litigators and can advise you about your potential rights and defenses in a malicious prosecution action.  Each case is different and you should consult a lawyer rather than relying on this post as legal advice for your situation.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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