Malicious prosecution actions in California are complex. Filing and defending such actions require the handling attorney to have a deep understanding of the interplay of anti-SLAPP law, SLAPP-back actions and malicious prosecution actions. One of the preliminary issues to resolve in preparing a malicious prosecution action is who to name as a defendant. In most cases, the defendants are not usually hard to identify: 1) the prior plaintiff(s); and 2) the lawyer(s) for the prior plaintiff(s). However, in some instances this question is not so clear as to which parties to name as defendants in a malicious prosecution case. For example,
Liability is not limited to the prior plaintiff and attorney for the prior plaintiff. Persons who urge, procure or otherwise are actively instrumental in the filing of the lawsuit may be sued for malicious prosecution along with the actual prior plaintiff. (Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 25 fn. 26).
Even if initial counsel had probable cause to file a lawsuit, successor counsel may be liable for malicious prosecution if they continued the prosecution without probable cause. (Zamos v. Stroud (2004) 32 Cal. 4th 958, 970).
A trustee may be sued for a prior action brought in trustee’s representative capacity. The trustee, not the trust, is the real party in interest with respect to litigation over trust property. (Nicholson v. Fazeli (2003) 113 Cal.App.4th 1091, 1102-1103).
Associate counsel who appears on the pleadings and is on the case service list may not avoid malicious prosecution liability by claiming ignorance about allegations made by lead counsel. (Cole v. Patricia A. Meyer & Associates, APC (2012) 206 Cal.App.4th 1095, 1117).
This post is the fifth in an ongoing series of posts on the tort of malicious prosecution.