Q: We were sued in a civil case, by a neighbor no less. We won, early on in the case, and the appeal was dismissed. We were traumatized by the suit, my wife and I, and it cost plenty to defeat. Our lawyer sent written communications to the lawyer for the party suing us that the case was “a malicious prosecution.” Can we sue this guy? That’s our first question.

D.A., Rancho Palos Verdes

A: Malicious prosecution is a tort claim that seeks to prevent a litigant from exploiting the court for a personal vendetta or other wrongful motive, by providing a remedy to those wrongfully subjected to court action. It is often said, however, that malicious prosecution actions are “disfavored” because they may chill access to the court (access is to be unfettered).

There are three basic criteria to have a valid malicious prosecution action: (1) the original lawsuit against you was resolved in your favor — you defeated it, you won; (2) the party suing you had no reasonable grounds or evidence to believe the case had merit; and (3) the motivation for the lawsuit involves malice.

The malice element does not mean a level of hatred, ill will, spite or even some evil intent. It can be shown by an improper purpose, such as to force settlement unrelated to the merits, coerce payment or capitulation, harass, or burden the other party with expenses.

You no doubt have had careful discussion with your lawyer about the pros and cons of pursuing a malicious prosecution claim. This should include what can be expected, such as an Anti Slapp Motion by the other side. If you do not know what that is, then there is one piece of the discussion you should have. Know the ropes, and learn how the case is going to be handled; are you paying for it in whole or in part, or is it on a contingency and the lawyer is fronting the costs?

Q: If we do sue for malicious prosecution, what kinds of damages can we seek? Do we just sue the party who sued us or also his lawyer?

D.A., Rancho Palos Verdes

A: You can sue both. Also, it may be possible to seek a variety of damages. Keep in mind, as noted above, malicious prosecution is a tort.

Attorney fees and costs incurred in defending the prior action can be sought.

Did you incur any financial loss or harm, such as a business opportunity or income? Do you now have higher insurance premiums? Any contracts or customers that were compromised?

In addition, payment for emotional distress/mental suffering can be requested. This may manifest with lost sleep, anxiety and stress. Physical injury is not required, but it is important to link the distress to the malicious prosecution through testimony, medical records (if any), the like.

Was your reputation tarnished by virtue of the prior case? Did you lose goodwill, were you stigmatized? Were you being accused of dishonesty, fraud or some kind of professional misconduct?

Finally, punitive damages can be part of your claim. This is if the behavior associated with the prior action rises to the level of fraud, malice or oppression (as defined by Civil Code Section 3294), and which can be demonstrated by clear and convincing evidence.