In Del Rio v. Jetton (1997) 55 Cal.App.4th 30, the court allowed a malicious prosecution action based on an unsuccessful underlying federal civil rights action to proceed in state court over an argument that the federal attorney fees statute for civil rights cases, 42 United States Code section 1988, provided an exclusive remedy. The Court of Appeal pointed out that subjective bad faith is not required for an award of attorney fees under section 1988, whereas "in contrast, a successful action for malicious prosecution in California requires proof not only that the underlying action was brought without probable cause, but also that it was initiated or continued with malice." ( Del Rio v. Jetton, supra, 55 Cal.App.4th at p. 36.) There was no conflict between state and federal law that would mandate preemption: "Congress intended the fee-shifting provision in 42 U.S.C. section 1988 to encourage plaintiffs to bring good faith civil rights actions, and to deter plaintiffs from bringing civil rights actions which lack foundation. A tort action for malicious prosecution against a plaintiff who brought a civil rights action without foundation, and with malice does not conflict with either of those purposes." ( Del Rio v. Jetton, supra, 55 Cal.App.4th at pp. 36-37.)