CACI 1500 Former Criminal Proceeding—Essential Factual Elements

California Civil Jury Instructions CACI

1500 Former Criminal Proceeding—Essential Factual Elements

[Name of plaintiff] claims that [name of defendant] wrongfully caused a criminal proceeding to be brought against [him/her/nonbinary pronoun/it]. To establish this claim, [name of plaintiff] must prove all of the following:

1.That [name of defendant] was actively involved in causing [name of plaintiff] to be arrested [and prosecuted] [or in causing the continuation of the prosecution];

[2.That the criminal proceeding ended in [name of plaintiff]’s favor;]

[3.That no reasonable person in [name of defendant]’s circumstances would have believed that there were grounds for causing [name of plaintiff] to be arrested [and prosecuted];]

4.That [name of defendant] acted primarily for a purpose other than to bring [name of plaintiff] to justice;

5.That [name of plaintiff] was harmed; and

6.That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s harm.

[The law requires that the trial judge, rather than the jury, decide if [name of plaintiff] has proven element 2 above, whether the criminal proceeding ended in [his/her/nonbinary pronoun/its] favor. But before I can do so, you must decide whether [name of plaintiff] has proven the following:

[List all factual disputes that must be resolved by the jury.]

The special [verdict/interrogatory] form will ask for your finding on [this/these] issue[s].]

[The law [also] requires that the trial judge, rather than the jury, decide if [name of plaintiff] has proven element 3 above, whether a reasonable person in [name of defendant]’s circumstances would have believed that there were grounds for causing [name of plaintiff] to be arrested [and prosecuted]. But before I can do so, you must decide whether [name of plaintiff] has proven the following:

[List all factual disputes that must be resolved by the jury.]

The special [verdict/interrogatory] form will ask for your finding on [this/these] issue[s].]

New September 2003; Revised April 2008, October 2008, June 2015, May 2018

Crowdsource Lawyers

Directions for Use

Give this instruction in a malicious prosecution case based on an underlying criminal prosecution. If there is an issue as to what it means to be “actively involved” in element 1, also give CACI No. 1504, Former Criminal Proceeding—“Actively Involved” Explained.

In elements 1 and 3 and in the next-to-last paragraph, include the bracketed references to prosecution if the arrest was without a warrant. Whether prosecution is required in an arrest on a warrant has not definitively been resolved. (See Van Audenhove v. Perry (2017) 11 Cal.App.5th 915, 919–925 [217 Cal.Rptr.3d 843].)

Malicious prosecution requires that the criminal proceeding have ended in the plaintiff’s favor (element 2) and that the defendant did not reasonably believe that there were any grounds (probable cause) to initiate the proceeding (element 3). Probable cause is to be decided by the court as a matter of law. However, it may require the jury to find some preliminary facts before the court can make its legal determination, including facts regarding what the defendant knew or did not know at the time. (See Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 881 [254 Cal.Rptr. 336, 765 P.2d 498].) If so, include element 3 and also the bracketed part of the instruction that refers to element 3.

Favorable termination is handled in much the same way. If a proceeding is terminated other than on the merits, there may be disputed facts that the jury must find in order to determine whether there has been a favorable termination. (See Fuentes v. Berry (1995) 38 Cal.App.4th 1800, 1808 [45 Cal.Rptr.2d 848].) If so, include element 2 and also the bracketed part of the instruction that refers to element 2. Once these facts are determined, the jury does not then make a second determination as to whether there has been a favorable termination. The matter is determined by the court based on the resolution of the disputed facts. (See Sierra Club Found. v. Graham (1999) 72 Cal.App.4th 1135, 1159 [85 Cal.Rptr.2d 726] [element of favorable termination is for court to decide].)

Either or both of the elements of probable cause and favorable termination should be omitted if there are no disputed facts regarding that element for the jury.

Element 4 expresses the malice requirement.

Sources and Authority

Public Employee Immunity. Government Code section 821.6.

“Malicious prosecution consists of initiating or procuring the arrest and prosecution of another under lawful process, but from malicious motives and without probable cause.” (Cedars-Sinai Medical Center v. Superior Court (1988) 206 Cal.App.3d 414, 417 [253 Cal.Rptr. 561], internal citation omitted.)

“The remedy of a malicious prosecution action lies to recompense the defendant who has suffered out of pocket loss in the form of attorney fees and costs, as well as emotional distress and injury to reputation because of groundless allegations made in pleadings which are public records.” (Sagonowsky v. More (1998) 64 Cal.App.4th 122, 132 [75 Cal.Rptr.2d 118], internal citations omitted.)

“[A] cause of action for malicious prosecution cannot be premised on an arrest that does not result in formal charges (at least when the arrest is not pursuant to a warrant).” (Van Audenhovesupra, 11 Cal.App.5th at p. 917 [rejecting Rest.2d Torts, § 654. subd. (2)(c)].)

“Cases dealing with actions for malicious prosecution against private persons require that the defendant has at least sought out the police or prosecutorial authorities and falsely reported facts to them indicating that plaintiff has committed a crime.” (Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710, 720 [117 Cal.Rptr. 241, 527 P.2d 865], internal citations omitted.)

“[T]he effect of the approved instruction [in Dreux v. Domec (1861) 18 Cal. 83] was to impose liability upon one who had not taken part until after the commencement of the prosecution.” (Lujan v. Gordon (1977) 70 Cal.App.3d 260, 263 [138 Cal.Rptr. 654].)

“When, as here, the claim of malicious prosecution is based upon initiation of a criminal prosecution, the question of probable cause is whether it was objectively reasonable for the defendant … to suspect the plaintiff … had committed a crime.” (Greene v. Bank of America (2013) 216 Cal.App.4th 454, 465 [156 Cal.Rptr.3d 901].)

“When there is a dispute as to the state of the defendant’s knowledge and the existence of probable cause turns on resolution of that dispute, … the jury must resolve the threshold question of the defendant’s factual knowledge or belief. Thus, when … there is evidence that the defendant may have known that the factual allegations on which his action depended were untrue, the jury must determine what facts the defendant knew before the trial court can determine the legal question whether such facts constituted probable cause to institute the challenged proceeding.” (Sheldon Appel Co., supra, 47 Cal.3d at p. 881, internal citations omitted.)

“Admittedly, the fact of the grand jury indictment gives rise to a prima facie case of probable cause, which the malicious prosecution plaintiff must rebut. However, as respondents’ own authorities admit, that rebuttal may be by proof that the indictment was based on false or fraudulent testimony.” (Williams v. Hartford Ins. Co. (1983) 147 Cal.App.3d 893, 900 [195 Cal.Rptr. 448].)

“Acquittal of the criminal charge, in the criminal action, did not create a conflict of evidence on the issue of probable cause. [Citations.]” (Verdier v. Verdier (1957) 152 Cal.App.2d 348, 352, fn. 3 [313 P.2d 123].)

“ ‘[T]he plaintiff in a malicious prosecution action must plead and prove that the prior judicial proceeding of which he complains terminated in his favor.’ Termination of the prior proceeding is not necessarily favorable simply because the party prevailed in the prior proceeding; the termination must relate to the merits of the action by reflecting either on the innocence of or lack of responsibility for the misconduct alleged against him.” (Sagonowsky, supra, 64 Cal.App.4th at p. 128, internal citations omitted.)

“ ‘The theory underlying the requirement of favorable termination is that it tends to indicate the innocence of the accused, and coupled with the other elements of lack of probable cause and malice, establishes the tort, that is, the malicious and unfounded charge of crime against an innocent person.’ ” (Cote v. Henderson (1990) 218 Cal.App.3d 796, 804 [267 Cal.Rptr. 274], quoting Jaffe v. Stone (1941) 18 Cal.2d 146, 150 [114 P.2d 335].)

“[I]n most cases, a person who merely alerts law enforcement to a possible crime … is not liable if … law enforcement, on its own, after an independent investigation, decides to prosecute.” (Cox v. Griffin (2019) 34 Cal.App.5th 440, 452 [246 Cal.Rptr.3d 185].)

“Where a proceeding is terminated other than on the merits, the reasons underlying the termination must be examined to see if it reflects the opinion of the court or the prosecuting party that the action would not succeed. If a conflict arises as to the circumstances explaining a failure to prosecute an action further, the determination of the reasons underlying the dismissal is a question of fact.” (Fuentes, supra, 38 Cal.App.4th at p. 1808, internal citations omitted.)

“Generally, the requirements of the doctrine of collateral estoppel ‘will be met when courts are asked to give preclusive effect to preliminary hearing probable cause findings in subsequent civil actions for false arrest and malicious prosecution. [Citation.]’ ‘A determination of probable cause at a preliminary hearing may preclude a suit for false arrest or for malicious prosecution’].) ‘One notable exception to this rule would be in a situation where the plaintiff alleges that the arresting officer lied or fabricated evidence presented at the preliminary hearing. [Citation.] When the officer misrepresents the nature of the evidence supporting probable cause and that issue is not raised at the preliminary hearing, a finding of probable cause at the preliminary hearing would not preclude relitigation of the issue of integrity of the evidence.’ Defendants argue, and we agree, that the stated exception itself contains an exception—i.e., if the plaintiff alleges that the arresting officer lied or fabricated evidence at the preliminary hearing, plaintiff challenges that evidence at the preliminary hearing as being false, and the magistrate decides the credibility issue in the arresting officer’s favor, then collateral estoppel still may preclude relitigation of the issue in a subsequent civil proceeding involving probable cause.” (Greene v. Bank of America (2015) 236 Cal.App.4th 922, 933 [186 Cal.Rptr.3d 887], internal citations omitted.)

“The plea of nolo contendere is considered the same as a plea of guilty. Upon a plea of nolo contendere the court shall find the defendant guilty, and its legal effect is the same as a plea of guilty for all purposes. It negates the element of a favorable termination, which is a prerequisite to stating a cause of action for malicious prosecution.” (Cote, supra, 218 Cal.App.3d at p. 803, internal citation omitted.)

“ ‘Should a conflict arise as to the circumstances explaining the failure to prosecute, the trier of fact must exercise its traditional role in deciding the conflict.’ ” (Weaver v. Superior Court (1979) 95 Cal.App.3d 166, 185 [156 Cal.Rptr. 745], disapproved on other grounds in Sheldon Appel Co., supra, 47 Cal.3d at p. 882, original italics, internal citations omitted.)

“ ‘For purposes of a malicious prosecution claim, malice “is not limited to actual hostility or ill will toward the plaintiff. …” [Citation.]’ ‘[I]f the defendant had no substantial grounds for believing in the plaintiff’s guilt, but, nevertheless, instigated proceedings against the plaintiff, it is logical to infer that the defendant’s motive was improper.’ ” (Greene, supra, 216 Cal.App.4th at pp. 464–465, internal citation omitted.)

“Malice may be inferred from want of probable cause, but want of probable cause cannot be inferred from malice, but must be affirmatively shown by the plaintiff.” (Verdier, supra, 152 Cal.App.2d at p. 354.)

Secondary Sources

5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 552–570, 605
4 Levy et al., California Torts, Ch. 43, Malicious Prosecution and Abuse of Process, § 43.01 (Matthew Bender)
31 California Forms of Pleading and Practice, Ch. 357, Malicious Prosecution and Abuse of Process, § 357.10 et seq. (Matthew Bender)
14 California Points and Authorities, Ch. 147, Malicious Prosecution and Abuse of Process, §§ 147.20–147.53 (Matthew Bender)