<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by patriciastamper:
my husband and i are seperated we borrowed money from father in law 3 yrs ago and i left my husband in febuary now my father in law is suing just me for the money not his son,i am disabled and my husband works there is something wrong with this picture can he do this and can i sue, countersue for malicous prosecution,or abuse of process?<HR></BLOCKQUOTE>
My response:
First, it doesn't matter that you are disabled. At the time of the loan, if you lived in a Community Property State, you are only liable for 1/2 of the total amount of the loan, minus 1/2 of any credits (payments) on the loan. If your former father-in-law wants to forego the 1/2 his son owes, that's his choice. But again, the most he can claim (or win) is 1/2 from you.
The gist of a claim for malicious prosecution lies in commencing an action or issuing process without justification. In contrast, abuse of process involves misusing or misapplying process justified in itself for an end other than that for which the process was intended; thus, the purpose for which the process is issued becomes the key element. See Spellens v. Spellens (1957) 49 Cal.2d 210, 232. As the plaintiff in a malicious prosecution action, you must plead and prove that the "prior" judicial proceeding terminated in your favor. Babb v. Superior Court (1971) 3 Cal.3d 841, 845. Although the termination need not be one that follows a trial on the merits, it must reflect the merits of the underlying action. De La Pena v. Wolfe (1986) 177 Cal.App.3d 481, 484. The favorable termination of the allegedly malicious proceeding need not be a final determination of the controversy: it is sufficient to show that the former proceeding was legally terminated. For example, if your father-in-law voluntary dismisses his civil action, even though expressly made "without prejudice," it would then be a favorable termination that will support an action for malicious prosecution. MacDonald v. Joslyn (1969) 275 Cal.App.2d 282, 289 (dismissal does not constitute a favorable termination if based on technical or procedural grounds).
As it applies to the malicious prosecution of civil actions, "probable cause" is defined as "a suspicion founded on circumstances sufficiently strong to warrant a reasonable man in the belief that the charge is true." Davis v. Local Union No. 11, Int'l Brotherhood of Elec. Workers AFL-CIO (1971) 16 Cal.App.3d 686, 692. Since the existence of probable cause acts as a complete defense to an action for malicious prosecution, it is often the primary issue involved (observing that if the court determines probable cause existed to initiate your father-in-law's underlying action, the malicious prosecution suit fails, regardless of whether the initial action was maliciously motivated).
The standard for determining probable cause is an objective one: whether any reasonable attorney would have thought the civil claim was tenable. Sheldon Appel Co., supra, 47 Cal.3d at 885-886. Where there are no disputed facts relied on to show probable cause, the court will use the "reasonable attorney" standard to determine whether probable cause existed. Id., at 876-877. "Where a dispute exists as to the state of [father-in-law's] knowledge and the existence of probable cause turns on that dispute . . . the jury must resolve the threshold question of the defendant's factual knowledge or belief." Id., at 881.
The tort of malicious prosecution requires evidence of conduct more blameworthy than mere negligence. Thus, proof of malice becomes necessary. Maxon v. Security Ins. Co. (1963) 214 Cal.App.2d 603, 615. In this context, malice is defined as actual ill will or some improper motive or purpose, express or implied. Grindle v. Lorbeer (1987) 196 Cal.App.3d 1461, 1465. It is not necessary for you to prove that the prosecution was motivated by personal hostility, a grudge, or ill will. It is sufficient if it appears that the previous action was instituted in bad faith to vex, annoy, or wrong you. Weber v. Leuschner (1966) 240 Cal.App.2d 829, 837. Malice may be inferred from a lack of probable cause to initiate the underlying action where your father-in-law's behavior in bringing an action was clearly unreasonable. See Grindle, supra, 196 Cal.App.3d at 1466-1468 (attorney's mere negligence in investigating facts before filing is insufficient to infer malice). The existence of malice is a question of fact. Northrup v. Baker (1962) 202 Cal.App. 2d 347, 354.
In this case, however, if there is a debt, and you benefited from the proceeds of that loan, and you agreed to that loan, and you live in a community property State at the time of the loan, then it is highly unlikely you'd have a case for Malicious Prosecution or Abuse of Process.
Good luck to you.
IAAL
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[This message has been edited by I AM ALWAYS LIABLE (edited April 05, 2000).]
