| 词汇 | Malicious Prosecution, Malicious Prosecution, Or Malicious Arrest3 |
| 释义 | `1`Malicious Prosecution, Malicious Prosecution, Or Malicious Arrest3 `2` "Legal Lexicon": the Supreme Court adopted an objective standard persuade that the repeated references in the opinion to the attorney's knowledge were included because, in the factual context of that case, reference to the attorney's knowledge was the only way to determine whether the underlying action was objectively tenable when it was filed. Where undisputed evidence establishes an objectively reasonable basis for instituting the underlying action, a "dispute" about what the attorney knew or did not know at the time she filed the underlying action is irrelevant. The Court expressly rejected the more stringent "prudent attorney" test (where the question is whether a prudent attorney, after such investigation of the facts and research of the law as circumstances reasonably warrant, would have considered the action to be tenable on the theory advanced), adopting instead the less stringent "reasonable attorney" formulation of In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650, the definition applied to court-imposed sanctions for frivolous appeals "'to avoid a serious chilling effect on the assertion of litigants' rights. . . . Counsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win . . . .'" Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal.3d at p.885, quoting In re Marriage of Flaherty, supra, 31 Cal.3d at p.650. As the Court put it, there is no "reason to afford litigants and their attorneys less protection from subsequent tort liability than [there] is to shield them from court-imposed sanctions within the initial action." Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal.3d at p.885. Modified to the malicious prosecution context, the standard is "whether any reasonable attorney would have thought the claim tenable" (Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal.3d at p.886), a standard that is satisfied if the issues presented in the underlying action were arguably correct, even if it was extremely unlikely the client would win (id. at p.885) The theoretical underpinnings of Sheldon Appel is the imposition of reasonable limitations on malicious prosecution actions to avoid a serious chilling effect on the assertion of litigants' rights, by permitting lawyers and their clients to present issues that are arguably correct, even if it is extremely unlikely that they will win. Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal.3d at p.885. Denial of a motion for summary judgment in the underlying action does not itself preclude a subsequent malicious prosecution claim. Lucchesi v. Giannini & Uniack, supra, 158 Cal.App.3d at p.787. The standard of proof on a motion for summary judgment for the plaintiff in the underlying action may differ from the standard applied to the lawyer for the plaintiff in the underlying action. (Leonardini v. Shell Oil Co. (1989) 216 Cal.App.3d 547, 569, fn.7, cert. denied (1990) 498 U.S. 919.) In Sheldon Appel, a lis pendens was filed in the underlying case (an action for declaratory relief). When the lis pendens was expunged, that meant the declaratory relief action had "terminated in Sheldon Appel's favor." (Sheldon Appel, supra, 47 Cal.3d at p. 869.) Thus, the malicious prosecution defendant's knowledge at the time the underlying action was initiated was the only way to determine whether the prior action was objectively tenable when filed. (See also Leonardini v. Shell Oil Co., supra, 216 Cal.App.3d at pp.563, 567-570; Klein v. Oakland Raiders, Ltd. (1989) 211 Cal.App.3d 67, 71, 75-76; Sheldon Appel, supra, 47 Cal.3d at p.886.) MALICIOUS PROSECUTION, or MALICIOUS ARREST, torts, or remedies. These terms import a wanton prosecution or arrest, made by a prosecutor in a criminal proceeding, or a plaintiff in a civil suit, without probable cause, by a regular process and proceeding, which the facts did not Malicious Prosecution, Malicious Prosecution, Or Malicious Ar |
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