1520 . Abuse of Process - Essential Factual Elements
[ Name of plaintiff ] claims that [ name of defendant ] wrongfully [ insert legal
pr ocedur e, e.g., “took a deposition” ]. T o establish this claim, [ name of
plaintiff ] must prove all of the following:
1. That [ name of defendant ] [ insert legal procedure, e.g., “took the
deposition of [name of deponent]” ];
2. That [ name of defendant ] intentionally used this legal procedure to
[ insert alleged improper purpose that procedure was not designed to
3. That [ name of plaintiff ] was harmed; and
4. That [ name of defendant ]’s conduct was a substantial factor in
causing [ name of plaintiff ]’s harm.
New September 2003
Sources and Authority
• “ ‘The common law tort of abuse of process arises when one uses the court’ s
process for a purpose other than that for which the process was designed.
[Citations.] It has been ‘interpreted broadly to encompass the entire range of
“procedures” incident to litigation.’ [Citation.] [¶] ‘[T]he essence of the tort [is]
. . . misuse of the power of the court; it is an act done in the name of the court
and under its authority for the purpose of perpetrating an injustice.’ [Citation.]’ ”
( S.A. v . Maiden (2014) 229 Cal.App.4th 27, 41 [176 Cal.Rptr .3d 567].)
• “T o establish a cause of action for abuse of process, a plaintif f must plead two
essential elements: that the defendant (1) entertained an ulterior motive in using
the process and (2) committed a wilful act in a wrongful manner .” ( Coleman v .
Gulf Insurance Gr oup (1986) 41 Cal.3d 782, 792 [226 Cal.Rptr . 90, 718 P .2d
77], internal citations omitted.)
• “A cause of action for abuse of process cannot be viable absent some harm to
the plaintif f caused by the abuse of process.” ( Y ee v . Superior Court (2019) 31
Cal. App. 5th 26, 37 [242 Cal.Rptr .3d 439].)
• “[Plaintif f]’ s complaint indicates that he has pleaded the tort of abuse of process,
long recognized at common law but infrequently utilized.” ( Kappel v . Bartlett
(1988) 200 Cal.App.3d 1457, 1463 [246 Cal.Rptr . 815], internal citation
• “Abuse of process is not just another name for malicious prosecution. Simply
filing or maintaining a lawsuit for an impr oper purpose (such as might support a
malicious prosecution cause of action) is not abuse of pr ocess . [Citation.] [¶]
Malicious prosecution and abuse of process are distinct. The former concerns a
meritless lawsuit (and all the damage it inflicted). The latter concerns the misuse
of the tools the law affor ds litigants once they ar e in a lawsuit (regardless of
whether there was probable cause to commence that lawsuit in the first place).
Hence, abuse of process claims typically arise for improper or excessive
attachments [citation] or improper use of discovery [citation].” ( S.A., supra , 229
Cal.App.4th at pp. 41-42, original italics.)
• “[W]hile a defendant’ s act of improperly instituting or maintaining an action
may , in an appropriate case, give rise to a cause of action for malicious
prosecution, the mere filing or maintenance of a lawsuit - even for an improper
purpose - is not a proper basis for an abuse of process action.” ( JSJ Limited
Partnership v . Mehrban (2012) 205 Cal.App.4th 1512, 1523 [141 Cal.Rptr .3d
• “Some definite act or threat not authorized by the process or aimed at an
objective not legitimate in the use of the process is required. And, generally , an
action lies only where the process is used to obtain an unjustifiable collateral
advantage. For this reason, mere vexation [and] harassment are not recognized as
objectives suf ficient to give rise to the tort.” ( Y ounger v . Solomon (1974) 38
Cal.App.3d 289, 297 [1 13 Cal.Rptr . 113], internal citations omitted.)
• “Process is action taken pursuant to judicial authority . It is not action taken
without reference to the power of the court.” ( Adams v . Superior Court (1992) 2
Cal.App.4th 521, 530 [3 Cal.Rptr .2d 49].)
• “This broad reach of the ‘abuse of process’ tort can be explained historically ,
since the tort evolved as a ‘catch-all’ category to cover improper uses of the
judicial machinery that did not fit within the earlier established, but narrowly
circumscribed, action of malicious prosecution.” ( Y ounger , supra, 38 Cal.App.3d
at p. 296, internal citations omitted.)
• “ ‘The improper purpose usually takes the form of coercion to obtain a collateral
advantage, not properly involved in the proceeding itself, such as the surrender
of property or the payment of money , by the use of the process as a threat or a
club.’ ” ( Spellens v . Spellens (1957) 49 Cal.2d 210, 232-233 [317 P .2d 613],
internal citation omitted.)
• “[A]n improper purpose may consist in achievement of a benefit totally
extraneous to or of a result not within its legitimate scope. Mere ill will against
the adverse party in the proceedings does not constitute an ulterior or improper
motive.” ( Ion Equipment Corp. v . Nelson (1980) 110 Cal.App.3d 868, 876 [168
Cal.Rptr . 361], internal citations omitted.)
• “Merely obtaining or seeking process is not enough; there must be subsequent
abuse, by a misuse of the judicial process for a purpose other than that which it
was intended to serve. The gist of the tort is the improper use of the process
after it is issued.” ( Adams, supra, 2 Cal.App.4th at pp. 530-531, internal
citations omitted.)
• “ ‘ “Some definite act or threat not authorized by the process, or aimed at an
MALICIOUS PROSECUTION CACI No. 1520
objective not legitimate in the use of the process, is required; and there is no
liability where the defendant has done nothing more than carry out the process
to its authorized conclusion, even though with bad intentions.” ’ ” ( Clark
Equipment Co. v . Wheat (1979) 92 Cal.App.3d 503, 524 [154 Cal.Rptr . 874],
internal citations omitted.)
• “[I]t is consistent with the purpose of section 47, subdivision (2) to exempt
malicious prosecution while still applying the privilege to abuse of process
causes of action.” ( Abraham v . Lancaster Community Hospital (1990) 217
Cal.App.3d 796, 824 [266 Cal.Rptr . 360].)
• “[T]he scope of ‘publication or broadcast’ includes noncommunicative conduct
like the filing of a motion for a writ of sale, the filing of assessment liens, or the
filing of a mechanic’ s lien. The privilege also applies to conduct or publications
occurring outside the courtroom, to conduct or publications which are legally
deficient for one reason or another , and even to malicious or fraudulent conduct
or publications.” ( O’Keefe v . Kompa (2000) 84 Cal.App.4th 130, 134 [100
Cal.Rptr .2d 602], internal citations omitted.)
• “The use of the machinery of the legal system for an ulterior motive is a classic
indicia of the tort of abuse of process. However , the tort requires abuse of legal
process, not just filing suit.” ( T rear v . Sills (1999) 69 Cal.App.4th 1341, 1359
[82 Cal.Rptr .2d 281], internal citations omitted.)
• “W e have located no authority extending the tort of abuse of process to
administrative proceedings. Application of the tort to administrative proceedings
would not serve the purpose of the tort, which is to preserve the integrity of the
court.” ( Stolz v . W ong Communications Ltd. Partnership (1994) 25 Cal.App.4th
181 1, 1822-1823 [31 Cal.Rptr .2d 229], internal citations omitted.)
Secondary Sources
5 W itkin, Summary of California Law (1 1th ed. 2017) T orts, §§ 61 1-622
4 Levy et al., California T orts, Ch. 43, Malicious Pr osecution and Abuse of Process,
§§ 43.20-43.25 (Matthew Bender)
31 California Forms of Pleading and Practice, Ch. 357, Malicious Pr osecution and
Abuse of Pr ocess , § 357.51 (Matthew Bender)
14 California Points and Authorities, Ch. 147, Malicious Prosecution and Abuse of
Pr ocess , § 147.70 et seq. (Matthew Bender)
1521-1529. Reserved for Future Use
CACI No. 1520 MALICIOUS PROSECUTION
Page last reviewed May 2024
Kathryn Robb, National Director of the Children’s Justice Campaign at Enough Abuse, discusses Vice President Kamala Harris’s unusual mention of child sexual abuse during her Democratic National Convention speech and its broader implications for addressing this issue in America.
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