The complex tort of malicious prosecution is frequently threatened yet rarely fully understood. One of the trickier elements to establish is that the prior action was filed and/or continued without probable cause. Just because you won the prior lawsuit does not necessarily mean that California courts will recognize the prior action lacked probable cause.
“Reasonable Attorney” Test
The test is whether any reasonable attorney would have thought the claim tenable. (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 886). A claim is legally tenable if it is supported by existing authority or the reasonable extension of that authority. (Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal.3d at p. 886; see also Arcaro v. Silva and Silva Enterprises Corp. (1999) 77 Cal.App.4th 152, 156-57).
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