Pace

Plaintiff Dean Francis Pace appeals an order dismissing, without leave to amend, his action against Hillcrest Motor Company, Inc. for malicious prosecution. The issue is whether an action for malicious prosecution may be based on an alleged malicious institution of a small claims proceeding.

In May 1978 Hillcrest filed a claim against Pace in the small claims division of the municipal court to recover $167.33 allegedly owing for repairs on Pace’s automobile. In June 1978 the small claims court entered judgment in favor of Pace. In November 1978 Pace filed this action in the superior court for $105,000 for Hillcrest’s alleged malicious prosecution of the small claims proceeding. Hillcrest demurred to the complaint on the ground, inter alia, that a small claims proceeding is not the type of proceeding which can give rise to a cause of action for malicious prosecution. In February 1979 the superior court sustained the demurrer without leave to amend and dismissed the action for malicious prosecution.

The tort of malicious prosecution lies to compensate an individual who is maliciously hailed into court and forced to defend against a fabricated cause of action. To establish…