Q: We are being sued by a neighbor. She is also suing the neighbor on the other side. We think the case against us is just plain meritless. What does it take to establish her case is frivolous?
A.H., Hermosa Beach
A: The description “frivolous case” can mean a number of things, such as her claim on its face is time barred, or there is no law to support the claim, or no facts, and/or there is a demonstrable lack of probable cause and good faith.
One possible example: The neighbor argues your fence encroaches onto her property and therefore must be removed. She seeks not only the removal but damages against you for trespass. You obtain a survey and other records that conclusively show the fence is on your property, not hers. Further, she has nothing to contradict your proof. Her claim would be meritless and frivolous. The fence is on your property.
Malicious prosecution is often associated with frivolous cases. It means that you prevailed in the case and that there simply was no probable cause for the lawsuit (nor should any good faith lawyer have pursued it). Not an easy burden, but the law and the outcome (as noted, you prevailed) can make a malicious prosecution claim viable. A few questions to ask: Can you collect, if you sue and win? Put another way: Is it worth the time, cost and effort? If a lawyer is one of the parties sued (the lawyer who handled the case), is there liability insurance?
Q: What’s the difference between malicious prosecution and abuse of process?
C.H., Yorba Linda
A: Malicious prosecution and abuse of process are related types of civil claims because the basic assertion is that the court system is being used for a decidedly wrongful purpose. To be sure, however, each is distinct.
Abuse or process arises when a lawsuit or claims are pursued for which the system was not designed. One example is intentionally filing in the wrong venue (such as a distant location) in order to try to cause such hardship to the other side that they simply do not respond, or have to choose to settle.
Malicious prosecution, on the other other hand, arises when the defendant began or continued a criminal or civil proceeding without reasonable grounds to believe there is any basis for it at all, and the proceedings are concluded in favor of the person who was being prosecuted or sued.
One factor as to why claims of abuse of process and malicious prosecution can be challenging is that we favor “access to the courts” in our country. There is a stigma about “chilling” the right to bring claims, to seek redress, and thus turning the table on someone who sues or prosecutes can come with resistance. There is indeed a tension that can arise because just about anyone can file a lawsuit nowadays.
Ron Sokol has been a practicing attorney for over 40 years, and has also served many times as a judge pro tem, mediator, and arbitrator. It is important to keep in mind that this column presents a summary of the law, and is not to be treated or considered legal advice, let alone a substitute for actual consultation with a qualified professional.
Source: Orange County Register
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