Malicious Prosecution in Civil Cases
When I am defending a client in a civil lawsuit, I often hear a variation of this question: “Can I sue them for suing me?” This is a typical reaction to being sued, because you may feel angry and offended and want to lash out and punish the other side just for filing a lawsuit against you. Unfortunately for defendants throughout Washington, the law does not favor these types of counterclaims; however, the law does provide for such an action under very narrow circumstances.
The operative claim is called “Civil Malicious Prosecution,” and it is typically brought by a defendant against a plaintiff in the form of a counterclaim. Washington common law has long recognized the existence of malicious prosecution claims for defendants in criminal actions, but eventually extended the claim to civil actions. In 1977, the Washington legislature codified a claim for civil malicious prosecution in RCW 4.24.350(1), allowing defendants in civil actions to sue the plaintiff for damages if they can prove the plaintiff knew the claim was false and made it without probable cause.
In 2004, the Washington Supreme Court set forth the seven elements necessary to prove a claim of civil malicious prosecution: 1) That a civil claim was made (a.k.a. a lawsuit was filed); 2) There was no probable cause to make the civil claim; 3) The person making the claim was motivated by malice; 4) that the person failed to prove their claim; 5) that making the claim caused injury or damage; 6) that the claim resulted in the plaintiff’s arrest or the seizure of their property; and 7) that the injury suffered as a result of the claim was “special” in that it would not necessarily result from similar causes of action. Clark v. Baines, 150 Wash.2d 905 (2004).
The effect of the Court’s ruling in Clark is to make it very difficult to prove a civil malicious prosecution claim. The first major hurdle is proving that there was no reasonable factual basis for the lawsuit. That may be the easiest part to prove, which says a lot about the other elements because it is rare to encounter a claim which has absolutely no basis in fact. Next, you must prove that the person who sued you did so maliciously, which means you must prove their subjective intent behind filing the lawsuit. Proving the intent of a party is always a challenge because you must supply evidence that makes the person’s motivations clear.
Even if you can do all of that that, you will only prevail in a case that resulted in your personal arrest or the seizure of your property. Civil claims almost never result in the arrest of the person being sued, but it is quite possible that property could be seized. Washington law allows for something called pre-judgment attachment or garnishment. Check out this fantastic webinar on pre-judgment remedies: https://beresfordlaw.com/webinar-prejudgment-writ-consideration/. Where pre-judgment garnishment or attachment has occurred, and the claim is later proven to be without merit, you will successfully be able to prove the sixth element of civil malicious prosecution. If none of your property was seized and you were not arrested, you cannot bring the claim.
Finally, on top of everything else, you must prove that you suffered a “special injury.” The term is only defined as one which does not typically result from similar causes of action. But if you have had your property seized and potentially lost or damaged because of the baseless lawsuit, you can likely satisfy this last element of special injury.
The answer to the oft asked question: “Can I sue them for suing me?” is almost always going to be “no.” It may be surprising, but wholly frivolous lawsuits based only on malice are uncommon. In my personal experience of over 17 years as an attorney, I have only seen a handful of claims that completely lacked factual merit, and none of those met all the elements necessary to prove civil malicious prosecution. Nevertheless, if you have a unique situation where the other party brought the claim against you with malicious intent and caused you special injury through your arrest or the seizure of your property, you may be able to successfully pursue a claim against them.