I've read numerous times that certain causes of action such as Abuse of Process or Malicious Prosecution are "not favored by the law/courts". What exactly does this mean that they're "not favored," and why aren't these favored causes of action?
The problem with malpros/abuse of process cases is that there must be a very clear showing that there was virtually no probable cause for the plaintiff or his/its attorney to file the underlying action. This is a steep hill to climb. Often, the plaintiff in the underlying case has not disclosed all relevant information at the outset. Often, the plaintiff's attorney proceeds with a case that is 'marginal' but appears to have some basis. When it does not turn out that way, the defendant may think that, just because he was the 'prevailing party' in the underlying case, the plaintiff and attorney had no basis for the case. This requires the next court to review the entire factual basis of case #1, get into the head of the plaintiff and attorney in that case, and then decide whether there was any probable cause to bring the first case; or, whether the plaintiff in case #1 "reasonably relied on the advice of counsel" (a defense to malpros).
The threat of a malpros case is often used in an effort to persuade a plaintiff or his/its attorney to abandon a case...rarely successfully...These are very difficult cases to bring and win. I happen to have an excellent case with very clear facts, very clear prevailing party, and a solvent defendant and attorney against whom I am proceeding right now. This is a rarity...the second one I have had in more than 30 years of litigation experience.
The information given is generic and does not constitute legal advice, which would only be given after a complete review of the specific facts of your case.
Certain causes of action are not favored by the courts because they are often alleged in a complaint but are rarely successfully proven at trial.
To establish a cause of action for malicious prosecution, a plaintiff must prove that the underlying action was (1) terminated in the plaintiff's favor, (2) prosecuted without probable cause, and (3) initiated with malice. (Zamos v. Stroud (2004) 32 Cal.4th 958, 966, 973.) This is very difficult to actually prove.
Likewise, to succeed in an action for abuse of process, a litigant must establish two elements: that the defendant (1) contemplated an ulterior motive in using the process; and (2) committed a willful act in the use of the process not proper in the regular conduct of the proceedings. (Brown v. Kennard (2001) 94 Cal.App.4th 40, 44.) Again, very difficult to prove.
Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult your own attorney.
As a matter of general legal philosophy and practice, certain types of claims have a reputation with judges and lawyers as being troublesome, difficult and fraught with emotion. Abuse of process and malicious prosecution claims fall under that shadow. Every abuse of process and malicious prosecution claim is brought by somebody who just went through a lawsuit of some kind, and won it. The plaintiff in these types of cases is not just satisfied with winning lawsuit number one, now there has to be a lawsuit number two, the only point of which is to pound the loser in lawsuit number one even further into the ground. The legal system wants disputes to be over, not continue to infinity with each winning defendant turning around and suing the losing plaintiff in a continuing series. So right off the bat, these types of claims are "not favored."
As other responders have pointed out, these claims are hard to prove on a technical level, and that is another reason they are "not favored."
For example, to establish the elements of an abuse of process claim in most jurisdictions, it is not enough to show that somebody sued you in a stupid, pointless lawsuit, lied about all the facts, and got their case tossed out by the judge with a nasty opinion and imposition of sanctions. In other words, a complete blowout in your favor in case number one. That's not enough. You have to show that the plaintiff in suit number one *abused* the court's process (meaning the summons in this instance) to accomplish some improper purpose other than to hale you into court. If all the losing plaintiff did in suit number one is serve you with a summons and complaint to get the case started, that plaintiff did not *abuse* the process. They used the process - the summons - for a proper purpose: staring a lawsuit and serving the defendant. That is what a summons is for. It doesn't matter that the lawsuit was a stone loser, or in most jurisdictions even that it was brought in bad faith. To establish abuse of process, you would have to show that the plaintiff in suit number one used the summons for some improper purpose, such creating a fake summons, or sending a real summons to someone else to embarrass or humiliate you or to tie up your assets, or some such similar thing. This requirement is very hard to establish most of the time, which is why claims for abuse of process are rarely successful.
Malicious prosecution claims are somewhat easier to succeed with than claims for abuse of process, but just barely. In most jurisdictions, the plaintiff in a malicious prosecution case has to show that not only did he or she win the first case, but that there was no truth to the factual claims made in the first case, the plaintiff in suit number one knew they were lying, and that the first lawsuit was brought for an improper purpose. An improper purpose in this context is not lying in court to get money. Somebody is lying in pretty much every lawsuit. The improper purpose has to be something extra - such as tying up the defendant's assets or business activities with an injunction. Because of the technical difficulties with proving malicious prosecution, it is also a claim, like abuse of process, that is "not favored."
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