Can My Business Sue for Malicious Prosecution After Winning a Baseless Lawsuit in California?

Last updated: November 2026. Reviewed by Pavel Kolmogorov, California business litigation attorney (State Bar No. 321018).

Sometimes, but winning the first case is only the start. A malicious prosecution claim in California requires that the earlier lawsuit ended in your favor on the merits, that it was brought or continued without probable cause, and that it was brought with malice. The deadline is generally two years from the judgment in the first case, and the defendant will usually answer with an anti-SLAPP motion. Kolmogorov Law, P.C. evaluates and litigates these claims for businesses in Orange County, Los Angeles, and across California.

Call (909) 235-6116 or contact us online to discuss a lawsuit you defeated, or one you believe was filed only to pressure your company.

The three elements of malicious prosecution

The plaintiff must show three things about the prior action. It was commenced by or at the direction of the defendant and pursued to a legal termination in the plaintiff's favor. It was brought without probable cause. And it was initiated with malice. (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 871-872.)

The Supreme Court later held that the tort also covers continuing to prosecute a lawsuit after discovering it lacks probable cause.

Malice without a lack of probable cause is not enough. Neither is a weak case filed in good faith.

Courts apply these elements strictly on purpose. The California Supreme Court calls malicious prosecution a disfavored cause of action, because the threat of a second lawsuit can discourage people from bringing legitimate disputes to court.

Favorable termination: winning is not always enough

The first case must have ended in a way that reflects on the merits. A defense verdict ordinarily qualifies. So, in most cases, does a summary judgment finding no evidence for the claim.

A technical or procedural ending does not. California courts have treated dismissals on statute of limitations grounds, on laches, and pursuant to a settlement as terminations that say nothing about who was right. If you paid, or even accepted, something to make the first case go away, a later malicious prosecution claim is probably gone with it.

That point should shape settlement decisions. I raise it with clients before a walk-away deal is signed, not after.

Probable cause: where most of these claims fail

Probable cause is not about what the other side secretly believed. It is an objective question, decided by the judge, about whether the earlier claim was legally tenable on the facts the filer knew. (Sheldon Appel, supra, 47 Cal.3d at p. 878.) The test is whether any reasonable attorney would have thought the claim tenable. A claim can be a loser and still pass.

One rule ends many cases at the door. If the earlier claim survived a hearing on the merits, such as the denial of your summary judgment motion, courts generally treat that ruling as establishing probable cause, unless it was obtained by fraud or perjury. A business that won at trial after losing summary judgment often has no malicious prosecution claim at all.

Malice is the subjective element. Evidence that the suit was filed to force a sale, tie up a product launch, or run up a smaller competitor's legal bills goes here.

Abuse of process is a different claim

Abuse of process has two elements: an ulterior purpose, and a willful act in the use of process that is not proper in the regular conduct of the proceeding. It targets misuse of the tools of litigation, such as a subpoena, a lien, or an attachment, for an end the tool was not designed to serve.

It does not reach the lawsuit itself. The Supreme Court has held that the mere filing or maintenance of a lawsuit, even for an improper purpose, is not a proper basis for an abuse of process action. That complaint belongs under malicious prosecution, with all of its requirements.

A second obstacle is the litigation privilege, which protects publications made in judicial proceedings. (Civ. Code, § 47, subd. (b).) Courts apply it to every tort except malicious prosecution, so abuse of process claims built on things said or filed in a case are usually barred.

The anti-SLAPP motion that follows

Filing a lawsuit is protected petitioning activity. A claim that arises from it is subject to a special motion to strike unless the plaintiff establishes a probability of prevailing. (Code Civ. Proc., § 425.16, subds. (b)(1), (e).) That means sworn declarations or comparable evidence on all three elements at the outset.

Lose that motion and you pay. A prevailing defendant on a special motion to strike is entitled to attorney fees and costs. (Code Civ. Proc., § 425.16, subd. (c)(1).) Our anti-SLAPP page explains the procedure.

The remedy inside the first case: sanctions and fees

The Supreme Court has said the better answer to unjustified litigation is speedy resolution and sanctions in the first action, not another round of lawsuits. (Sheldon Appel, supra, 47 Cal.3d at pp. 873-874.)

Every pleading carries a certification, made after reasonable inquiry, that it is not presented primarily for an improper purpose and that its legal contentions are warranted. Its factual contentions must have evidentiary support or be specifically identified as likely to have it after further investigation or discovery. A party who believes otherwise serves a sanctions motion, and the other side ordinarily has 21 days to withdraw the challenged paper before the motion can be filed. (Code Civ. Proc., § 128.7, subds. (b), (c)(1).) A separate statute allows an award of reasonable expenses, including attorney fees, for actions or tactics made in bad faith that are frivolous or solely intended to cause unnecessary delay. (Code Civ. Proc., § 128.5, subd. (a).)

Two other routes are simpler. A contract with an attorney fees clause may shift fees to the winner. And a prevailing party is ordinarily entitled to its allowable costs, which our page on recoverable court costs covers.

Deadline and damages

Malicious prosecution falls under the two-year statute. (Code Civ. Proc., § 335.1.) The claim accrues when judgment is entered in the underlying action, and the period is tolled while an appeal from that judgment is pending. (Escamilla v. Vannucci (2025) 17 Cal.5th 571, 589.) The same decision held that two years, not the one-year attorney statute, applies when a former adversary sues the opposing lawyer.

Recoverable damages include the attorney fees and costs of defending the first case, and compensation for harm the suit caused to the business's reputation and standing. Punitive damages may be available where malice is proved to the required standard.

What to bring to the first meeting

The complaint, the judgment or dismissal, and any appellate decision from the first case.
Rulings on demurrers, summary judgment, and nonsuit motions.
Settlement communications and any release.
Invoices showing what the defense cost.
Evidence of motive: emails, threats, statements to customers or investors.

Frequently asked questions

We won a lawsuit a competitor filed just to drain us. Can we now sue them for malicious prosecution in California?

Possibly. California requires three things: the earlier case ended in your favor on the merits, no reasonable attorney would have thought the claim tenable, and it was brought with malice. If the competitor's claim survived your summary judgment motion before you won at trial, probable cause is usually established and the claim fails. Expect an anti-SLAPP motion testing your evidence immediately.

What is the difference between malicious prosecution and abuse of process?

Malicious prosecution is about bringing a baseless lawsuit and requires a favorable termination, lack of probable cause, and malice. Abuse of process is about misusing a litigation procedure, such as a subpoena or attachment, for an ulterior purpose. In California, filing a lawsuit for a bad reason is not abuse of process, and the litigation privilege bars many such claims.

How long do I have to file a malicious prosecution claim in California?

Two years under Code of Civil Procedure section 335.1. The period starts when judgment is entered in the underlying case and is tolled while an appeal from that judgment is pending. The California Supreme Court confirmed in 2025 that the two-year period also governs a claim against the lawyer who represented your opponent.

The other side dropped its lawsuit against my company right before trial. Does that count as winning for a malicious prosecution claim?

It can. California courts ask whether the way the case ended reflects on the merits. A plaintiff who simply abandons a claim may be signaling that it lacked merit, which can qualify. A dismissal exchanged for a settlement, or one based on a procedural ground such as the statute of limitations, does not. The reasons for the dismissal will be examined closely.

Can I sue the other side's lawyer for malicious prosecution?

Sometimes. Lawyers who file and maintain a claim that no reasonable attorney would consider tenable can be defendants alongside their clients, and several leading California decisions involved law firms. The lawyer's research or subjective belief does not decide probable cause, which is measured objectively by the court. Malice must still be proved, and the lawyer will usually respond with an anti-SLAPP motion.

Talk to a California business litigation attorney

If your company defeated a lawsuit that should never have been filed, or is defending one now, call (909) 235-6116 or contact us online. Kolmogorov Law, P.C. is located at 327 Magnet, Irvine, CA 92618, and represents businesses in Orange County, Los Angeles, and throughout California.

This page provides general information about California law and is not legal advice. Outcomes depend on how the first case ended, the evidence, and the court.