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Frivolous Lawsuits and Malicious Prosecution

“Frivolous”, “meritless”, “worthless”, “BS”, the list goes on and on.  People often use these terms to describe a lawsuit.  But what exactly does a “frivolous” lawsuit mean, and what are the implications?  In California a frivolous lawsuit can have various meanings.  For example, in the employment arena, an employer sued by an employee can sometimes recover attorney’s fees for a frivolous lawsuit.

The term “frivolous lawsuit” is most commonly found in the context of a malicious prosecution action.   Malicious prosecution is an action brought after someone sues you in a prior lawsuit that has no probable cause.  Which begs the next question; what is “probable cause”?  In order to have probable cause (for bringing a lawsuit) you must have “an honest belief, founded on facts sufficiently strong to justify that belief, that grounds exist for the proceeding.”  In other words, you must show that not only do facts exist for bringing the lawsuit but also that the legal theory asserted is valid.  Legally the standard is whether any reasonable attorney would have thought the claim or claims were tenable.

You must also show that the lawsuit you claim was frivolous was ultimately brought to termination in your favor, you suffered a legally recognizable injury, and that the lawsuit was initiated with “malice.”  In this context malice means actual ill will or some improper motive or purpose.  In other words, you must show something more than simple negligence.

A malicious prosecution lawsuit seeks to recover all attorney’s fees and costs incurred in defending against the meritless lawsuit, as well as possible compensation for emotional distress, mental suffering, and impairment to reputation.   Malicious prosecution lawsuits can be filed against the party who wrongfully sued you, as well as that party’s attorney in certain situations such as where the attorney clearly discovers the lawsuit has no merit but continues to bring it.  On the other hand, the attorney is generally allowed to rely upon the facts given to them by their client, even if they are false, unless the attorney knows the facts given are false.  Because of this it can be helpful to “set up” a malicious prosecution lawsuit by repeatedly demonstrating to opposing counsel, in writing, the lack of merit in their client’s allegations.

“Well great!” most people say, sign me up, that lawsuit I was in six months ago was garbage, “let’s sue!”  However, malicious prosecution lawsuits are complicated and often disfavored by courts.  Courts generally want people to be able to seek redress through the judicial system and not be punished for doing so, as well to be able to test gray areas of the law, and/or pursue novel emerging legal theories.  Moreover, “malice” can be hard to show as one’s motives for filing a lawsuit are usually hidden.  On the other hand, where a lawsuit clearly has no merit and you ultimately prevail either by dispositive motion, dismissal, or by going all the way to trial, attorney’s fees and costs can be substantial.  Thus, a suit seeking recovery of these fees may be valid and warranted.


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