Distinctions from Malicious Prosecution and Malicious Use of Process


Malicious prosecution can be defined as the filing of a suit by a party with the sole intention to harm or disturb the other.  It is a common law intentional tort.  In order to establish a cause of action for malicious prosecution of either a criminal or civil proceeding, a plaintiff has to 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[i] (2) was brought without probable cause[ii]; and (3) was initiated with malice.[iii]

Malicious use of process is the improper use of a civil or criminal legal procedure for an unintended, malicious, or perverse reason.  It is the malicious and deliberate misuse of regularly issued civil or criminal court process that is not justified by the underlying legal action, or for a purpose that it is not intended to.  To maintain a cause of action for the common law tort of malicious use of process, the plaintiff has to prove that (1) a prior civil proceeding was instituted by the defendant. (2) The proceeding was instituted without probable cause. (3) The proceeding was instituted with malice. (4) The proceeding terminated in favor of the plaintiff. (5) Damages were inflicted upon the plaintiff by arrest or imprisonment, by seizure of property, or other special injury which would not necessarily result in all suits prosecuted to recover for a like cause of action.[iv]

The same set of facts may lead to different torts of malicious prosecution and malicious use of process.[v] In some jurisdictions, the term “malicious prosecution” denotes the wrongful initiation of criminal proceedings, while the term “malicious use of process” denotes the wrongful initiation of civil proceedings.

[i] Babb v. Superior Court (1971) 3 Cal.3d 841, 845 [92 Cal. Rptr. 179, 479 P.2d 379]

[ii] Grant v. Moore (1866) 29 Cal. 644, 648

[iii] Albertson v. Raboff (1956) 46 Cal.2d 375, 383 [295 P.2d 405]

[iv] Runkle v. O’Neil, 2007 U.S. Dist. LEXIS 8682 (D. Md. Feb. 7, 2007)

[v] Franco v. Mudford, 2002 Mass. App. Div. 63, 2002 WL 539065 (2002)