Yup, and there are plenty of officially published cases that say so. "Simply filing or maintaining a lawsuit for an improper purpose . . . is not abuse of process." Bidna v. Rosen, 19 Cal. App. 4th 27, 40 (1993); see also JSJ Limited Partnership v. Mehrban, 205 Cal. App. 4th 1512, 1523 (2012) ("the mere filing or maintenance of a lawsuit—even for an improper purpose—is not a proper basis for an abuse of process action."). Both of these cases are cited in the Sources and Authority section of the CACI jury instructions that are quoted previously in the thread.In at least most states it is not abuse of process to file a lawsuit that turns out to be time barred. In general there is nothing wrong with filing the lawsuit if it is otherwise a potentially viable claim (aside from the statute of limitations issue). California does not hold otherwise. "In order to succeed in an action for abuse of process, the plaintiff must show that the defendant contemplated an ulterior motive in using the process, and committed a willful act in the use of the process not proper in the regular conduct of the proceedings." Galdjie v. Moses, No. B187754, 2006 WL 2773886, at *4 (Cal. Ct. App. Sept. 28, 2006). The Court went on to note that the mere filing or maintenance of a lawsuit is not itself an abuse of process. Id.
The appropriate tort in this situation would be malicious prosecution. However, case law interpreting California's anti-SLAPP statute over the past 10-20 years has made that tort almost impossible to prosecute successfully.