Malicious Prosecution, Malicious Prosecution, Or Malicious Arrest

"Legal Lexicon":
MALICIOUS PROSECUTION - An intentional tort arising from the institution
or instigation of unjustifiable and unreasonable civil or criminal
litigation. An action for malicious prosecution can be brought against
the underlying case's plaintiff, plaintiff's counsel and/or advisors.
In one of California's leading cases its Supreme Court granted review in
Sheldon Appel "to consider a number of issues relating to the proper
determination of the probable cause element in a malicious prosecution
action, including the question whether a plaintiff may establish an
absence of probable cause by proving that its former adversary's
attorney failed to perform adequate legal research before filing the
prior action." (Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal.3d
at pp.867-868.) To that end, the Court determined "that the most
promising remedy for excessive litigation does not lie in an expansion
of malicious prosecution liability" (id. at p. 873) and thus found it
was not "advisable to abandon or relax the traditional limitations on
malicious prosecution recovery." (Id. at p.874.) It was from that
perspective that the Court analyzed the specific questions presented in
Sheldon Appel.
First, the Supreme Court determined the issue of probable cause is one
for the court, not a jury. (Sheldon Appel, supra, 47 Cal.3d at pp.874-
877) Thus, where there are no disputed questions of fact relevant to the
probable cause issue, the matter may be determined by summary judgment
(or on appeal by de novo review). Id. at pp.884-886.
Second, the Supreme Court determined that, where (as in Sheldon Appel)
"the facts known by the attorney are not in dispute, the probable cause
issue is properly determined by the trial court under an objective
standard; it does not include a determination whether the attorney
subjectively believed that the prior claim was legally tenable."
(Sheldon Appel, supra, 47 Cal.3d at p.881)
To avoid confusion, the Court "strongly emphasize【d】" that it did not
mean to "suggest that an attorney who institutes an action which he does
not believe is legally tenable is free from the risk of liability for
malicious prosecution. If the trial court concludes that the prior
action was not objectively tenable, evidence that the defendant attorney
did not subjectively believe that the action was tenable would clearly
be relevant to the question of malice. Inasmuch as an attorney who does
not have a good faith belief in the tenability of an action will
normally assume that a court is likely to come to the same conclusion,
the malicious prosecution tort will continue to deter attorneys from
filing actions which they do not believe are legally tenable.
"Furthermore, the probable cause element, as so defined, imposes no
improper or unjustified hardship on a malicious prosecution plaintiff.
If a court finds that the initial lawsuit was in fact objectively
tenable, the court has determined that the fundamental interest which
the malicious prosecution tort is designed to protect -- 'the interest
in freedom from unjustifiable and unreasonable litigation' -- has not
been infringed by the initial action. Under such circumstances, it is
not unfair to bar a plaintiff's suit for damages even if the plaintiff
can show that its adversary's law firm did not realize how tenable the
prior claim actually was, since the plaintiff could properly have been
put to the very same burden of defending an identical claim if its
adversary had simply consulted a different, more legally astute,
attorney. This is a classic case of 'no harm, no foul.'" (Sheldon Appel,
supra, 47 Cal.3d at pp.881-882)
In reaching this conclusion, the Supreme Court discussed a number of
malicious prosecution cases in which the attorney-defendants had been
specifically charged with knowledge of the falsity of the claim asserted
in the underlying action, e.g., Bertero v. National General Corp. (1974)
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