Siam v Kizilbash - malicious prosecution barred

Cite as: 130 Cal.App.4th 1563, 31 Cal.Rptr.3d 368

Cited by Benchguide [§20.60]  Subsequent Malicious Prosecution Action


A malicious prosecution action cannot be based on an unsuccessful  petition under CCP §527.6 (Siam v Kizilbash (2005) 130 CA4th 1563,  1567, 1571 1574, 31 CR3d 368) or an unsuccessful petition under CCP  §527.8 (Robinzine v Vicory (2006) 143 CA4th 1416, 1422–1424, 50 CR3d 65). The defendant’s remedy is to seek sanctions in the CCP §527.6 or §527.8 proceedings for the filing of a frivolous petition. 

page 372 of Siam:

We conclude that pursuant to the policy enunciated in Sheldon Appel Co. v. Albert *372 & Oliker (1989) 47 Cal.3d 863, 254 Cal.Rptr. 336, 765 P.2d 498 (Sheldon Appel), a cause of action for malicious prosecution may not be based upon an unsuccessful civil harassment petition. (§ 527.6.) We reject defendant's other arguments, including his assertion of privilege, which we conclude is overridden by the provisions of the Child Abuse and Neglect Reporting Act. (Pen.Code, §§ 11164 et. seq., 11172, subd. (a) (Pen.Code, § 11172(a)).)

From Siam,

"Yet, as in family law disputes, the background of bitterness would make it difficult to distinguish between a malicious petition and one that is not malicious. Further, just as in family law matters, section 527.6 provides for attorney fees as sanctions for a frivolous petition. "

Nothing contained herein is tendered as nor should it be considered as legal advice.  What is legal is not necessarily justice.  Almost all of reality is non-"published", ergo, what is legally affirmed is always a retarded misrepresentation of reality.   Use at your own risk!