Press "Enter" to skip to content

California Appeals Court Rules Probable Cause Defeats Malicious Prosecution Claim


The Court of Appeal of the State of California, Second Appellate District, recently affirmed the trial court’s ruling in favor a bank and its employee as to a plaintiff’s malicious prosecution claim.

In so ruling, the Appellate Court held that the doctrine of the law of the case does not bar application of the doctrine of collateral estoppel to plaintiff’s malicious prosecution claim, and that a magistrate’s determination in the plaintiff’s criminal proceeding on the issue of probable cause defeats the malicious prosecution claim as a matter of law.

A copy of the opinion is available at:

The plaintiff sued a bank and its branch manager for malicious prosecution. The dispute arose when the plaintiff went to a local bank branch to cash two insurance checks. The bank’s branch manager refused to do so because she could not verify the signature on the larger check, at which point the plaintiff became irate.

The parties’ accounts of what happened thereafter were diametrically opposed, with the plaintiff claiming he got upset, but did not threaten anyone, and the bank’s employees claiming the plaintiff threatened to blow the bank up. The police were called and plaintiff was arrested and charged with making a criminal threat. The plaintiff was acquitted after a jury trial in the criminal proceedings.

The trial court in this civil case entered judgment in the defendants’ favor after they filed a motion to strike plaintiff’s case under California’s Code of Civil Procedure section 426.16j (the “anti-SLAPP motion”).

The plaintiff appealed and the Second Appellate District reversed the judgment in defendant’s favor, holding that when there is conflicting evidence on the issue of probable cause, the finder of fact must decide whether sufficient facts exist to raise or reject an inference of probably cause.

On remand, the defendants moved for summary judgment, arguing that the plaintiff was collaterally estopped from re-litigating the issue of probable cause, the lack of which is an essential element in a malicious prosecution claim. This was because the magistrate in plaintiff’s criminal case found that probable cause existed at the preliminary hearing based on the branch manager’s testimony that plaintiff had threatened to blow-up the bank, and the trial judge’s denial of plaintiff’s motion for acquittal based on insufficient evidence. The trial court granted the defendants’ motion for summary judgment, reasoning that the finding of probable cause in the criminal case precluded plaintiff from re-litigating the issue in the civil case.

The plaintiff appealed, arguing that the appellate court decided the issue of probable cause in the first appeal and the doctrine of the law of the case precluded defendants from re-litigating that issue. The plaintiff also argued that collateral estoppel did not apply because the magistrate’s probable cause finding was based on lies procured by fraud.

Rejecting the plaintiff’s arguments, the Appellate Court reasoned that under California Supreme Court precedent, in order to state a cause of action for malicious prosecution of either a criminal or civil proceeding must show that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in the plaintiff’s favor; (2) was brought without probable cause; and (3) was initiated maliciously. The question of probable cause revolves around whether it was objectively reasonable for the defendant to suspect that the plaintiff had committed a crime.

The Appellate Court next discussed the law of the case doctrine, which applies “when, in deciding an appeal, an appellate court states in its opinion a principle or rule of law necessary to the decision, [which then] becomes the law of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal.” However, the law of the case doctrine does not apply to issues of which were not raised and determined in the prior appeal.

The Appellate Court affirmed the summary judgment in defendants’ favor because the issue of collateral estoppel was not raised in the first appeal and the doctrine of the law of the case does not preclude applying the doctrine of collateral estoppel. Applying the doctrine of collateral estoppel to the case at bar, the Court concluded that the magistrate’s probable cause finding in the plaintiff’s criminal case defeated plaintiff’s malicious prosecution claim as a matter of law.

Print Friendly, PDF & Email

Hector E. Lora manages the firm’s Florida office and has substantial experience in all phases of complex commercial litigation, including bench and jury trials as well as appellate practice. Hector represents lenders, servicers, debt collectors and debt buyers in complex mortgage foreclosure actions, quiet title actions, federal TILA, RESPA, TCPA, and FDCPA actions and Florida FCCPA actions brought by borrowers or debtors. He also represents creditors in bankruptcy litigation, purchasers of accounts receivable or factoring companies that provide revenue-based financing to small and mid-sized businesses in collection actions, and landlords in commercial and residential evictions. Hector’s broad litigation experience includes over a decade of defending civil enforcement actions filed by the Federal Trade Commission as well as real estate contract disputes and partition actions, contested mortgage foreclosure and condominium lien foreclosure actions and the foreclosure of UCC Article 9 security interests. Hector also has advised a variety of types of businesses regarding their compliance with applicable federal and state consumer protection laws, including the Federal Trade Commission Act, the Telephone Consumer Protection Act (TCPA), the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Telemarketing Sales Rule, the Controlling the Assault of Nonsolicited Pornography and Marketing Act of 2003, and Florida laws governing telephone solicitation and communication. Hector received his Juris Doctor from the Georgetown University Law Center, and his undergraduate degree with honors from the University of Florida. For more information, see

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.