Legal Question in Business Law in California

Technically it is abuse of process. It is a disfavored claim, and all inferences are construed against the plaintiff, in order to protect people with legitimate if not ultimately successful disputes from being intimidated into not having their day in court. But if this guy had no case, knew he had no case, and filed entirely to dissuade you from pursuing your case by making it more difficult and expensive, you may be successful. If you are in Northern California and would like to discuss your case further, please feel free to give me a call.

Technically, it is malicious prosecution you're asking about, but I don't think you can satisfy all of the elements of that tort. The California Supreme Court says the elements of abuse of process are �first, an ulterior purpose, and second, a wilful act in the use of the process not proper in the regular conduct of the proceeding.� Barquis v. Merchants Collection Assn. (1977) 7 Cal.3d 94, at pp.103-104. As an example of qualifying improper conduct, the court cited filing lawsuits in the wrong county. The court has made it clear that malicious prosecution is distinguished from abuse of process in that the latter requires malice as a motive for bringing the suit whereas the former requires a deliberate improper act in the actual conduct of the suit.

One of the requirements for a malicious prosecution action is that the party to be named as defendant have had the previous prosecution (criminal or civil) fianlly decided, on its merits, in favor of the now plaintiff. In your case, there was a dismissal. You make it sound as though there was a voluntary dismissal by the then plaintiff, and that would not qualify as a decision in your favor by the court, on the merits. If there were an involuntary dismissal of the case by the court, that'd probably be sufficient, but that's not what you have, I assume.

Another possibility is that this guy might qualify as a vexatious litigant under Code of Civil Procedure section 391 (et seq.), if he has been filing and losing a lot of cases.

First you have to 'win' your case against him, and defeat his against you, before considering an action for malicious prosecution.

You can file an action for malicious prosecution, but you should be aware that you would most likely be subject to a SLAPP motion at the outset. If you lose that motion, the case would be dismissed and you would have to pay his attorney's fees.