Malicious Prosecution Favorable Termination California

Although the Supreme Court has further clarified that the element of probable cause is distinct from the element of favorable termination, and has acknowledged that probable cause is only an issue that arises with regard to theories of claims within an action after the favorable termination of the earlier action as a whole has been reached (Crowley v. Katleman (1994) 8 Cal.4th 666, 686), it has nonetheless conceded that whether a "partial favorable termination" of a case "is sufficient to support a malicious prosecution action is, again, a question of policy under the substantive law of that tort." (Ibid.) The substantive law of the tort of malicious prosecution since Singleton, supra, 45 Cal.2d 489, has developed to the extent that a plaintiff in such action "is not precluded from establishing favorable termination where severable claims are adjudicated in his or her favor. " (Sierra Club Foundation v. Graham (1999) 72 Cal.App.4th 1135 at p. 1153.) In Albertson v. Raboff (1956) 46 Cal.2d 375, the California Supreme Court permitted the favorable termination element of a malicious prosecution claim to be shown by "that part of the judgment in the former action that determined that defendant had no interest in or a right to a lien upon plaintiff's real property,which was separate from an action for money damages found against him." (Id. at p. 382.) The court found such portion of the judgment "is now final and constitutes a termination of that separable part of the proceeding favorable to plaintiff." (Ibid.) This "severability rule" has been followed by various Courts of Appeal confronted with similar situations where the underlying case on which an action for malicious prosecution was based on severable claims. (See Graham, supra, 72 Cal.App.4th at pp. 1149-1153; Tabaz, supra, 27 Cal.App.4th at pp. 792-794; Jay, supra, 213 Cal. App. 3d at pp. 368-371.) As to those claims, the courts have uniformly found the element of favorable termination for a malicious prosecution could have been or was shown when the plaintiff pled and proved he received a favorable adjudication or termination which reflected his innocence on the merits of the misconduct alleged in those severed counts. (Ibid.) The element of favorable termination is a legal question for the court to decide. (Graham, supra, 72 Cal.App.4th at p. 1149.) Such question "calls for a termination reflecting on the merits of the action and the plaintiff's innocence of the misconduct alleged. When the proceeding terminates other than on the merits, the court must examine the reasons for termination to see if the disposition reflects the opinion of the court or the prosecuting party that the action would not succeed. If resolution of the underlying action leaves a residue of doubt about the plaintiff's innocence or liability, it is not a favorable termination sufficient to support a cause of action for malicious prosecution. " (Ibid.) As the court in Graham noted, "favorable termination can occur short of a trial on the merits, but it must bear on the merits. Thus a plaintiff does not establish favorable termination merely by showing that he or she prevailed in an underlying action. " (Ibid.) Although a malicious prosecution action "has been dubbed a disfavored tort because of its potential chilling effect on the willingness of the ordinary citizen to pursue resolution of disputes in court(citation), it is equally true that 'this convenient phrase should not be employed to defeat a legitimate cause of action. . . . ". . .' " (Graham, supra, 72 Cal.App.4th at p. 1148.) As the California Supreme Court has recognized, "the malicious commencement of a civil proceeding is actionable because it harms the individual against whom the claim is made, and also because it threatens the efficient administration of justice . . . . In recognition of the wrong done the victim of such a tort, settled law permits him to recover the cost of defending the prior action . . . and for mental or emotional distress . The judicial process is adversely affected by a maliciously prosecuted cause not only by the clogging of already crowded dockets, but by the unscrupulous use of the courts by individuals '. . . as instruments with which to maliciously injure their fellow men.' " (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50-51.) "In order to establish a cause of action for malicious prosecution of a civil proceeding, a plaintiff must demonstrate '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 ; and (3) was initiated with malice .'" (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 871.) Regarding the element of concern on this appeal, favorable termination, the plaintiff "must plead and prove that the prior judicial proceeding which is the basis of the malicious prosecution suit terminated in plaintiff's favor. Plaintiff need not show a verdict or a final determination on the merits; legal termination will suffice. The termination, however, must reflect on the merits of the underlying action. " (Berman v. RCA Auto Corp (1986) 177 Cal. App. 3d. 321, 323.) Because "'the theory underlying the requirement of favorable termination is that it tends to indicate the innocence of the accused . . . ' " (Lackner v. Lacroix (1979) 25 Cal.3d 747, 750), such element necessarily "requires a termination reflecting the merits of the action and plaintiff's innocence of the misconduct. " (Pattiz v. Minye (1998) 61 Cal.App.4th 822, 827.) "Where a proceeding is terminated other than on the merits, the reasons underlying the termination must be examined to see if the termination reflects the opinion of either the court or the prosecuting party that the action would not succeed." (Pender v. Radin (1994) 23 Cal.App.4th 1807, 1814.)