Malicious Prosecution, Malicious Prosecution, Or Malicious Arrest3

"Legal Lexicon":
the Supreme Court adopted an objective standard persuade that the
repeated references in the opinion to the attorney's knowledge were
included because, in the factual context of that case, reference to the
attorney's knowledge was the only way to determine whether the
underlying action was objectively tenable when it was filed. Where
undisputed evidence establishes an objectively reasonable basis for
instituting the underlying action, a "dispute" about what the attorney
knew or did not know at the time she filed the underlying action is
irrelevant.
The Court expressly rejected the more stringent "prudent attorney" test
(where the question is whether a prudent attorney, after such
investigation of the facts and research of the law as circumstances
reasonably warrant, would have considered the action to be tenable on
the theory advanced), adopting instead the less stringent "reasonable
attorney" formulation of In re Marriage of Flaherty (1982) 31 Cal.3d
637, 650, the definition applied to court-imposed sanctions for
frivolous appeals "'to avoid a serious chilling effect on the assertion
of litigants' rights. . . . Counsel and their clients have a right to
present issues that are arguably correct, even if it is extremely
unlikely that they will win . . . .'" Sheldon Appel Co. v. Albert &
Oliker, supra, 47 Cal.3d at p.885, quoting In re Marriage of Flaherty,
supra, 31 Cal.3d at p.650. As the Court put it, there is no "reason to
afford litigants and their attorneys less protection from subsequent
tort liability than 【there】 is to shield them from court-imposed
sanctions within the initial action." Sheldon Appel Co. v. Albert &
Oliker, supra, 47 Cal.3d at p.885.
Modified to the malicious prosecution context, the standard is "whether
any reasonable attorney would have thought the claim tenable" (Sheldon
Appel Co. v. Albert & Oliker, supra, 47 Cal.3d at p.886), a standard
that is satisfied if the issues presented in the underlying action were
arguably correct, even if it was extremely unlikely the client would win
(id. at p.885)
The theoretical underpinnings of Sheldon Appel is the imposition of
reasonable limitations on malicious prosecution actions to avoid a
serious chilling effect on the assertion of litigants' rights, by
permitting lawyers and their clients to present issues that are arguably
correct, even if it is extremely unlikely that they will win. Sheldon
Appel Co. v. Albert & Oliker, supra, 47 Cal.3d at p.885.
Denial of a motion for summary judgment in the underlying action does
not itself preclude a subsequent malicious prosecution claim. Lucchesi
v. Giannini & Uniack, supra, 158 Cal.App.3d at p.787.
The standard of proof on a motion for summary judgment for the plaintiff
in the underlying action may differ from the standard applied to the
lawyer for the plaintiff in the underlying action. (Leonardini v. Shell
Oil Co. (1989) 216 Cal.App.3d 547, 569, fn.7, cert. denied (1990) 498
U.S. 919.)
In Sheldon Appel, a lis pendens was filed in the underlying case (an
action for declaratory relief). When the lis pendens was expunged, that
meant the declaratory relief action had "terminated in Sheldon Appel's
favor." (Sheldon Appel, supra, 47 Cal.3d at p. 869.) Thus, the malicious
prosecution defendant's knowledge at the time the underlying action was
initiated was the only way to determine whether the prior action was
objectively tenable when filed. (See also Leonardini v. Shell Oil Co.,
supra, 216 Cal.App.3d at pp.563, 567-570; Klein v. Oakland Raiders,
Ltd. (1989) 211 Cal.App.3d 67, 71, 75-76; Sheldon Appel, supra, 47
Cal.3d at p.886.)
MALICIOUS PROSECUTION, or MALICIOUS ARREST, torts, or remedies. These
terms import a wanton prosecution or arrest, made by a prosecutor in a
criminal proceeding, or a plaintiff in a civil suit, without probable
cause, by a regular process and proceeding, which the facts did not
Malicious Prosecution, Malicious Prosecution, Or Malicious Ar