We hear time after time how our legal system is “out of control". We hear stories of frivolous law suits achieving outrageous results like the infamous “McDonald’s hot coffee on the lap" case. We complain about and criticize the system as if every single case that is filed in our civil courts were of the same caliber as those “outrageous" cases. But I beg to differ. I believe that the vast majority of the cases filed are legitimate as there are laws and legal procedures in place to minimize the filing of “frivolous" cases.

However, even with the deterrents in place, there are instances where people and/or their attorney(s) abuse the civil legal system by filing meritless actions against others. This is quite common with personal injury actions, where greedy people file to recover damages even though they are NOT injured.

When that happens, there is recourse for those who have been wrongfully sued. The victorious defendant (the person wrongfully sued) can file an action against the losing plaintiff (the person who filed the law suit) and/or his/her attorney, an action for “abuse of the civil process" and/or “malicious prosecution".

A valid malicious prosecution case requires the following:

In Daniels v. Robbins, the California Court of Appeals addressed a claim of malicious prosecution against opposing counsel. Malicious prosecution requires that the following elements of proof be present:

  • The entire prior action proceedings must be completed.

Prior actions may include civil lawsuits, administrative proceedings, declaratory relief actions, probate proceedings and even insanity proceedings.

  • The person who was initially sued achieved a favorable termination of the prior action.

This means the court ruled in favor of the person originally sued (defendant) and found that the suit did not merit action, and if it did proceed, it would fail.

  • There was no probable cause for the prior action.

This means that there was no reasonable belief as to the validity of the prior action. The courts examine probable cause from an attorney's viewpoint: whether a reasonable attorney would believe there is a meritorious claim.

  • The prior action was initiated with malice.

This can be shown where the action was filed for an improper purpose, such as to harass the plaintiff or to force the plaintiff to do something unrelated to the merits of the prior action.

What can an aggrieved defendant recover in an “Abuse of Process/Malicious Prosecution" action? Any attorney fees and costs that the person incurred in defending the original case will be recoverable. Emotional distress and damage to reputation can come as a result of a person being sued. If it can be proven that the person has indeed suffered emotionally, then he/she can recover “specific" damages (medical bills, cost of going to therapy, medication, etc.) as well as “general" damages (pain, suffering, sleeplessness, etc..). Loss of reputation will be harder to prove, but if evidence of such a loss can be successfully introduced at trial, then the person can recover for the “economic" damages that this loss has caused.

There is another type of damage that can be recovered if it can be proven that the actions or conduct of the plaintiff in the original case was malicious. However, the malicious conduct must be superior to just simple malice. The conduct must be outrageous and despicable.

So the next time you hear someone say that the courts are filled with meritless, frivolous cases, you will know that the people that do file them can end up with the exact opposite result that they were trying to achieve.