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Memorundum of Points and Authorities for a Petition for Serious and Willful Misconduct

Burbank, CA |

I'm an unrepresented injured worker who has been recently acquitted by the jury from malicious and fraudulent crimes filed by my employer and insurance company as having committed insurance fraud. The stress they've put me through is unbearable. I was already recovering from severe depression and now I'm back to square one. They were trying to use these fraudulent charges as a peremptory strategy to preclude me from being paid. Not only did they lose in the criminal court, but it became very clear that this was a blatant conspiracy. The defense attorney and the claims adjuster came to testify against me and ended up helping me. I now want to file for serious and willful misconduct since going through this malicious prosecution has worsened my condition. Where can I get the S&W template?

Attorney Answers 2


There is no "template" for what you want to do and, in fact, malicious prosecutions are extremely difficult to prove. You will need counsel, plain and simple, even to survive the initial rounds of motions to dismiss.

The complaining witness did not "lose." The prosecution lost. And the employer and insurance company did not bring the criminal case against you; that was the prosecutor's decision. An acquittal does not mean "innocent" and it will not suffice to prove that there was no basis for the criminal action. By itself the acquittal will not prove that the prosecution, the complaining witness, or any of the witnesses committed any unlawful act.

Think for a moment about all of the people who are acquitted in criminal court. Do you think that they then go on to win judgments to repay their expenses and sufferings for that experience. In almost all circumstances, the acquitted criminal defendant will not have a viable claim for restitution for the damages incurred by the necessity to defend against prosecution. But there is always the exceptional case...

See an attorney for specific advice and assistance here if you have any intentions of really making this effort fly.

My responses to questions on Avvo are never intended as legal advice and must not be relied upon as legal advice. I give legal advice only in the course of an attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by individual consultation and execution of a written agreement for legal services.

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Thank you very much for your response. I agree with you when you say there's always the exceptional cases, such as mine. The reason being that they knowingly used perjury in the courtroom. The initial prosecutor was transferred out of the case after I had written to the DOJ and the City Attorney reporting that he is engaged in fraud. I've since reported the workers comp defense lawyer to the California Bar Association. It's one thing to be guilty but not proven so, and another to be a victim of malicious prosecution with friends abusing their authority and helping friends.

Christine C McCall

Christine C McCall


All very interesting but none of this lessens MY point. You will NOT prevail without an attorney. Please believe me. I wish it weren't true. On these facts with this kind of basis for your claim, you will get nowhere without legal counsel.


There is no template. Sit down with an attorney to see if you have any cause of action available.

Good luck.

In no way am I offering you legal advice, and in no way has my comment created an attorney-client relationship. You are not to rely upon my note above in any way, but insted need to sit down with counsel and share all relevant facts before receiving fully-informed legal advice. If you want to be completely sure of your rights, you must sit down with an experienced criminal defense attorney to be fully aware of your rights.

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