Malicious Prosecution Cause of Action California
"To establish a cause of action for the malicious prosecution of a civil proceeding, a plaintiff must plead and prove that the prior action:
(1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff's, favor ;
(2) was brought without probable cause [citations]; and (3) was initiated with malice." ( Bertero v. National General Corp. (1974) 13 Cal. 3d 43, 50, 118 Cal. Rptr. 184, 529 P.2d 608.)
In Sagonowsky v. More the parties entered into an agreement that contained a commercial contractual arbitration provision.
This agreement provided that "any dispute or claim in law or equity arising out of this contract or any resulting transaction shall be decided by neutral binding arbitration . . . ." (Sagonowsky v. More, supra, 64 Cal. App. 4th at p. 125, fn. 1.) the agreement specifically excepted certain proceedings from the arbitration agreement.
After the arbitration successfully terminated in her favor, Sagonowsky (and two others) filed a malicious prosecution action against More, the attorney who had represented the opposing party in the arbitration proceeding.
After the trial court sustained More's demurrer without leave to amend on the ground, inter alia, that "primarily . . . where the parties have come together by contract . . . to submit disputes to arbitration as opposed to litigation . . . malicious prosecution should not be available to a successful defendant in such an arbitration proceeding" (id., at p. 127), Sagonowsky appealed.
In affirming the trial court's judgment, the Sagonowsky court stated:
"In contrast appellants expressly contracted for private arbitration and defined the scope of disputes subject to that arbitration broadly, but expressly acknowledged that certain limited avenues of action in court would still be open to them. . . .
"The significance of such provisions is that the parties sought to limit quite narrowly the circumstances in which they would seek a judicial remedy.
It was certainly possible for them to have agreed to subject themselves to liability in the courts for malicious prosecution of an arbitration (or to have provided for a costs or sanction award by the arbitrator for a baseless claim); however, they made no such agreement here. . . . In short, the intent of the parties as expressed in both agreements was to strictly limit recourse to judicial remedies and submit 'any dispute' regarding each agreement to private arbitration.
"Appellants urge us to insert into the agreement to arbitrate any dispute the added requirement that the dispute be a 'colorable claim' or a 'bona fide' claim.
We decline to rewrite the agreement entered into by the parties. These parties were not impeded from agreeing to submit only colorable or bona fide claims to arbitration, nor from including in their agreement a provision for a fee award or sanction to be imposed by the arbitrator for claims found not to be colorable or bona fide.
They did not do so. Having chosen in their agreement to arbitrate not to foreclose the risk that they might bear the cost of an arbitration which terminated in their favor on a claim without merit, appellants cannot expect this court to rewrite that agreement.
"Accordingly, on these facts we find the trial court did not err in sustaining the demurrer to the cause of action for malicious prosecution on the basis that the private, contractual arbitration which terminated in their favor was not a 'prior action' of the sort which will support such a claim." (Sagonowsky v. More, supra, 64 Cal. App. 4th at pp. 133-134.)