CACI 1504 Former Criminal Proceeding—Actively Involved Explained

California Civil Jury Instructions CACI

1504 Former Criminal Proceeding—“Actively Involved” Explained

[Name of defendant] was “actively involved” in causing [name of plaintiff] to be prosecuted [or in causing the continuation of the prosecution] if after learning that there was no probable cause that [name of plaintiff] had committed a crime, [he/she/nonbinary pronoun] sought out the police or prosecutorial authorities and falsely reported facts to them indicating that [name of plaintiff] had committed a crime. Merely giving testimony or responding to law enforcement inquiries is not active involvement.

Directions for Use

Give this instruction in a malicious prosecution case arising from an earlier criminal proceeding. This instruction explains what is meant by “active involvement” in a criminal prosecution, as used in element 1 of CACI No. 1500, Former Criminal Proceeding—Essential Factual Elements.

Sources and Authority

“Although a criminal prosecution normally is commenced through the action of government authorities, a private person may be liable for malicious prosecution under certain circumstances based on his or her role in the criminal proceeding. ‘The relevant law is clear: “One may be civilly liable for malicious prosecution without personally signing the complaint initiating the criminal proceeding.” ’ ” (Zucchet v. Galardi (2014) 229 Cal.App.4th 1466, 1481 [178 Cal.Rptr.3d 363, internal citation omitted.)

“Malicious prosecution consists of initiating or procuring the arrest and prosecution of another under lawful process, but from malicious motives and without probable cause. … . [Italics in original.] The test is whether the defendant was actively instrumental in causing the prosecution.’ ” (Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710, 720 [117 Cal. Rptr. 241, 527 P.2d 865], original italics.)

“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.” (Greene v. Bank of America (2013) 216 Cal.App.4th 454, 464 [156 Cal.Rptr.3d 901].)

“Public policy requires that ‘private persons who aid in the enforcement of the law should be given an effective protection against the prejudice which is likely to arise from the termination of the prosecution in favor of the accused.’ ” (Cedars-Sinai Medical Ctr. v. Superior Court (1988) 206 Cal.App.3d 414, 418 [253 Cal.Rptr. 561].)

“[M]erely giving testimony and responding to law enforcement inquiries in an active criminal proceeding does not constitute malicious prosecution.” (Zucchetsupra, 229 Cal.App.4th at p. 1482.)

“[T]o create liability for malicious prosecution … [t]he person must ‘take [some affirmative action to encourage the prosecution by way of advice or pressure, as opposed to merely providing information.’ ” (Zucchetsupra, 229 Cal.App.4th at p. 1485.)

“According to section 655 of the Restatement, ‘[a] private person who takes an active part in continuing or procuring the continuation of criminal proceedings initiated by himself or by another is subject to the same liability for malicious prosecution as if he had then initiated the proceedings.’ ” (Zucchetsupra, 229 Cal.App.4th at p. 1483.)

Secondary Sources

5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 561
4 Levy et al., California Torts, Ch. 43, Malicious Prosecution and Abuse of Process, § 43.03 (Matthew Bender)
31 California Forms of Pleading and Practice, Ch. 357, Malicious Prosecution and Abuse of Process, § 357.19 (Matthew Bender)