Under California law, the tort of abuse of process requires misuse of a judicial process.[i] To succeed in an action for abuse of process, a litigant must establish that the defendant (1) contemplated an ulterior motive in using the judicial process, and (2) committed a willful act in the use of that process not proper in the regular conduct of the proceedings. Misuse of an administrative proceeding–even one that is quasi-judicial does not support a claim for abuse of process.[ii]
California law does not require the whole proceeding in an abuse of process claim to be absolutely groundless. Thus, “if groundless charges are maliciously and without probable cause, coupled with others which are well founded, they are not on that account less injurious, and, therefore, even one charge can constitute a valid cause of action.”[iii]
A malicious abuse of process claim may be asserted either as a “procedural irregularity” involving misuse of procedural devices such as discovery or as “an act that otherwise indicates the wrongful use of proceedings.”[iv] The tort of malicious abuse of process is construed narrowly to protect the right of access to the courts.[v] “The filing of a proper complaint with probable cause, and without any overt misuse of process, will not subject a litigant to liability for malicious abuse of process, even if it is the result of a malicious motive.”[vi]
A plaintiff seeking to show a lack of probable cause must demonstrate, by the applicable standard of proof, that the opponent did not hold a reasonable belief in the validity of the allegations of fact or law of the underlying claim.[vii]
A cause of action for malicious-abuse-of-process accrues immediately upon the improper use of process. [viii]
The lack of a termination requirement is what distinguishes a claim for malicious abuse of process from one for malicious prosecution and thus a malicious abuse of process claim accrue as soon as criminal action is commenced.[ix]
Abuse of process is a common law tort recognized in Pennsylvania as “the perversion of legal process after it has begun ‘primarily to accomplish a purpose for which it is not designed”[x] and the absence of probable cause to initiate criminal proceedings is sufficient for an abuse of process claim. [xi]
The willful act “contemplates some overt act done in addition to the initiating of the suit. The mere filing or maintenance of a lawsuit even for an improper purpose is not a proper basis for an abuse of process action.”[xii]
[i] Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1037 (9th Cir. Cal. 2008) See also Rusheen v. Cohen, 37 Cal. 4th 1048, 1056, 39 Cal. Rptr. 3d 516, 128 P.3d 713 (2006). Davis v. United States, 2010 U.S. Dist. LEXIS 7036 (C.D. Cal. Jan. 28, 2010).
[iv] Fleetwood Retail Corp. v. LeDoux, 142 N.M. 150 (N.M. 2007)
[v] See Devaney v. Thriftway Mktg. Corp., 124 N.M. 512 (N.M. 1997)
[vi] Richardson v. Rutherford, 109 N.M. 495 (N.M. 1990)
[vii] Devaney, 124 N.M. 512 at 522.
[viii]McDow v. Gonzales, 2008 U.S. Dist. LEXIS 108674 (D.N.M. Sept. 30, 2008)
[ix] Mata v. Anderson, 2010 U.S. Dist. LEXIS 9257 (D.N.M. Jan. 13, 2010) Norton v. Town of Islip, 2009 U.S. Dist. LEXIS 27565 (E.D.N.Y. Mar. 27, 2009).
[x] Ciolli v. Iravani, 625 F. Supp. 2d 276, 296 (E.D. Pa. 2009)
[xi] Teeple v. Carabba, 2009 U.S. Dist. LEXIS 119937, 50-51 (E.D. Pa. Dec. 22, 2009)
[xii] Pomeroy v. Rizzo, 182 P.3d 1125, 1128 (Alaska 2008)