Mabie

This case concerns what ought to be a well-settled question: A plaintiff files a complaint containing two claims. The first claim is supported by probable cause. The second claim is not supported by probable cause. Instead, it is motivated by malice. The defendant successfully defends both claims. May the defendant now sue for malicious prosecution of the unsupported and malicious claim? The California Supreme Court has ruled four times that the answer is yes.

The action underlying the instant malicious prosecution action contained essentially two claims. The first claim sought cancellation of a note and deed of trust. This claim was arguable both as to the facts and the law, and hence was supported by probable cause. The second claim accused defendants of fraud, conspiracy and malice, and sought punitive damages. This second claim had no evidentiary support whatever. The party who filed these claims, as well as her attorneys, admitted never having any evidence to support these claims. Nevertheless, as defendants in this malicious prosecution action, they moved for summary judgment, claiming that they had probable cause for the entire action. Both the moving and opposing…