Paiva v. Nichols

Opinion

DUFFY, J.

The absence of probable cause for bringing a prior action is an essential element of a malicious prosecution claim. (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 867 [254 Cal.Rptr. 336, 765 P.2d 498] (Sheldon Appel).) One way that a defendant can negate this element (and thereby defeat the claim) is by showing that an interim victory in the underlying case—such as the granting of a preliminary injunction in favor of the malicious prosecution defendant (the plaintiff in the prior case)— established probable cause. (Fleishman v. Superior Court (2002) 102…