Amid the post-pandemic eviction wave, California tenants facing unlawful detainer actions based on deceit may wish to fight back against their duplicitous landlords.  In addition to defending against the eviction action, and hopefully prevailing, the tenant may further respond by filing an affirmative civil action against the landlord.  Where the landlord’s deception is particularly acute, the California tenant may include a cause of action for malicious prosecution.

Malicious prosecution is the filing of a civil or criminal lawsuit for an improper purpose, and without grounds or probable cause.  In the civil action context, probable cause is a suspicion founded on circumstances sufficiently strong to warrant a reasonable person in the belief that the charge is true.  Davis v. Local Union No. 11, Int’l Bhd. of Elec. Workers, AFL-CIO, 16 Cal. App. 3d 686, 692 (1971).  The Court will ask whether any reasonable attorney would have thought the civil claim was tenable.  Sheldon Appel Co. v. Albert & Oliker, 47 Cal. 3d 863, 885-86 (1989).

To establish a cause of action for malicious prosecution, the tenant must prove all of the following:

  1. The prior action was commenced by or at the direction of the defendant and was pursued to a legal termination in the Plaintiff’s favor;
  2. The prior action was brought without probable cause;
  3. The prior action was initiated with malice; and,
  4. The plaintiff suffered an injury or damage as a result.  Sheldon Appel Co. v. Albert & Oliker, 47 Cal. 3d 863, 871 (1989).

The tenant must prove the basic elements of the claim.  For the cause of action to be viable, the landlord’s filing an eviction must be more than carelessness, which is the basis for negligence.  Instead, the landlord must act with malice, which courts define as actual ill will or some improper motive or purpose, whether express or implied, including hostility to indifference.  Grindle v. Lorbeer, 196 Cal. App. 3d 1461, 1465 (1987).  Chiefly, the tenant must be able to show that the landlord instituting, “the proceedings…primarily for an improper purpose.”  Maleti v. Wickers, 82 Cal. App. 5th 181, 222 (2022).  Where a landlord threatens the tenant with a stressful and costly unlawful detainer action to strong arm the tenant into taking a course of action, especially where the landlord has done little to no research on the merits of the threatened unlawful detainer, or bases the unlawful detainer on facts that are clearly fabricated, the tenant may have a strong malicious prosecution cause of action.  Lanz v. Goldstone, 243 Cal. App. 4th 441, 467-68 (2015); HMS Capital, Inc. v. Lawyers Title Co., 118 Cal. App. 4th 204, 218 (2004) (Malice may be found, “where the proceedings are initiated for the purpose of forcing a settlement which has no relation to the merits of the claim.”).

The tenant may obtain punitive damages when it is proven, by clear and convincing evidence, that the landlord was guilty of malice.  California Civil Code § 3294(a).  Where the unlawful detainer complaint consists largely of fabricated claims, they knew were false at the time asserted, the tenant may obtain punitive damages under the theory that such flagrant abuse of the judicial process is malicious.  Bertero v. National General Corp., 13 Cal. 3d 43, 65 (1974) (flagrant abuse of the judicial process by filing fabricated claims to force a settlement or abandonment of a legitimate claim is precisely the type of tortious conduct that an award of punitive damages is designed to deter.).

In Trapp v. Maham Corp., 2024 Cal. Super. LEXIS 8311 (Riverside Sup. Ct. Feb. 23, 2024), a Riverside tenant brought a malicious prosecution action after the landlord filed a meritless unlawful detainer seeking to evict the tenant based on allegations the landlord knew were false at filing.  Without evidence, the landlord alleged in the eviction action that the tenant tampered with a circuit breaker box and kept an unlawful subtenant, despite knowing the subtenant was the tenant’s lawful live-in caregiver pursuant to federal disability and fair housing law.  The tenant alleged that the landlord only filed the eviction action in retaliation for the tenant filing an affirmative action regarding an issue with his tenancy and their relationship.  Ultimately, the tenant prevailed in the malicious prosecution action and obtained punitive damages.  After the landlord moved to strike punitive damages, the trial court affirmed the award, writing, “[t]hese facts are sufficient to support malice and punitive damages.”

While instituting a lawsuit for malicious prosecution is one possible riposte, this course of action is not tenable in response to every unlawful detainer action.  For the tenant to have a decent opportunity for obtaining a just result taking this course of action, the unlawful detainer summons & complaint must be acutely mendacious to the point it shocks the conscience.