Skip to Content

Stay Informed

What Can You Do When You Think a Frivolous Lawsuit Has Been Filed Against You? (Part II)

Published 2.15.15

In the last issue of this newsletter, we discussed the options that may be available to a party faced with what is perceived to be a frivolous lawsuit, while the lawsuit is pending. This article will comment on the separate and distinct remedy of bringing a malicious prosecution case after the underlying lawsuit has ended. A malicious prosecution case can be brought only if the defendant in that action prevailed on the merits in the underlying lawsuit.

A prevailing defendant may have the option of bringing a malicious prosecution lawsuit, which can be brought both against the plaintiff(s) and counsel from the prior lawsuit. The remedy is available for bringing and/or maintaining an action where the new plaintiff demonstrates that the underlying lawsuit was brought and/or maintained with malice and without probable cause. Since the filing of a lawsuit is ordinarily a privileged act, the proof required to prevail on a malicious prosecution case is fairly stringent. The challenging nature of succeeding on a malicious prosecution claim is demonstrated by one of the most famous such lawsuits in recent California history.

In connection with the move by the Oakland Raiders to Los Angeles, the Raiders and their managing general partner, Al Davis, filed an antitrust lawsuit naming the NFL, Gene Klein, owner of the San Diego Chargers, NFL Commissioner Pete Rozelle and Georgia Frontiere, owner of the Los Angeles Rams, claiming that they used harassment and illegal threats against Davis in an attempt to prevent the Raiders from moving to Los Angeles. The defendants eventually prevailed in that case.

Gene Klein then brought a malicious prosecution case against Al Davis, seeking compensatory and punitive damages. Klein claimed that he was singled out in the lawsuit, which caused him pain and suffering, including a heart attack that he sustained while testifying in the case. A jury found in Klein’s favor, awarding him $10,000,000.00 which was later reduced by the trial judge to $2,000,000.00. The award was reversed on appeal when the appellate court determined that there was legal authority to support the Raiders’ claim for antitrust violation, even though that claim eventually was unsuccessful. Thus, the second element – that the underlying action was instituted without probable cause – was lacking in Klein’s malicious prosecution suit.

A plaintiff in a malicious prosecution case must also demonstrate that the victory in the underlying case was “on the merits.” By way of example, winning a case because of a statute of limitations defense is not considered to constitute prevailing on the merits.

There are other limitations on bringing malicious prosecution cases, which are generally “disfavored” in the law. For example, the successful defendant in a contractual arbitration proceeding cannot bring a malicious prosecution claim. Also, small claims cases and family law proceedings cannot be the basis of a malicious prosecution claim. Further, public entities may not sue for malicious prosecution.

It is common for malicious prosecution complaints to generate an anti-SLAPP motion in response. As discussed in the prior article, if a defendant wins an anti-SLAPP motion, the plaintiff becomes responsible for the defendant’s legal expenses, including attorneys’ fees.
It is worth noting that malicious prosecution claims are often confused with abuse of process, which is a somewhat related, but distinct, situation. Abuse of process cases can be brought where a plaintiff (or cross-complainant) has misused a court “process” with an ulterior motive. Examples of process are writs of attachment and injunctions. Such claims can be brought even before the underlying lawsuit is resolved. As a practical matter, since writs of attachment and injunctions are issued only after a judge has found that such is justified (and usually after opposition by the defending party), successful abuse of process cases are rare.


“I am going to sue for malicious prosecution” is a fairly common reaction when defendants are faced with a lawsuit they believe to be frivolous. However, until the defendant actually prevails on the merits in the underlying lawsuit, a claim cannot be stated. Even after prevailing on the merits, successful defendants should evaluate the possibility of prevailing on a malicious prosecution claim. That analysis should include not only the potential amount of any recovery, but the realistic likelihood of collecting it. A defendant who brings a malicious prosecution case unsuccessfully faces, of course, the possibility of facing a malicious prosecution case in return.