A wealthy businessman, with a net worth estimated at $10 million, dies. Instead of leaving his estate—or any part of it—to his wife, as might be expected, his will directs that the entire fortune go to his lawyer, a man who happens to be his neighbor and, we are told, best friend. Can any sensible person doubt that, whatever the testator’s intent, these facts are a compelling blueprint for a will contest? And if the circumstances suggest that the aggrieved widow is likely to file a lawsuit attacking the validity of the will, is it any surprise that her conscientious lawyers will feel bound to allege every alternative theory supporting the claim that there was wrongdoing behind the testamentary disposition of her husband’s millions?
I take these propositions to be self-evident. Yet the majority would permit the beneficiary of this most peculiar will to sue the widow and her lawyers for tort damages if any one of the several theories alleged in her will contest petition is rejected as lacking probable cause. I cannot join in a holding that not only perpetuates dubious law for no better reason than that it exists, but is blind to realities of contemporary litigation practice that should impel the court to the opposite result. More fundamentally, I dissent from the majority’s gratuitously restrictive construction of Code of Civil Procedure section 128.5 (hereafter, section 128.5), a construction that threatens to hobble an effective judicial response to the pressing burden of excessive litigation—a response we explicitly and unanimously embraced a mere five years ago. In my view, the circumstances of this case, however much they merited the imposition of substantial monetary sanctions against petitioners in the will contest itself, do not justify yet another derivative tort action.
A malicious prosecution suit imposes substantial litigation costs on both the litigants and the courts—not least because malice is such a highly factual issue that it often precludes summary disposition. It is for these reasons, among others, that we have made it clear that the policies controlling the availability of the malicious prosecution tort action transcend the interest in protecting the defendant in the prior lawsuit from having to defend against spurious claims and make it a “disfavored” cause of action that is “carefully circumscribed.” (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 872 [254 Cal.Rptr. 336, 765 P.2d 498] (Sheldon Appel)1, Rubin v. Green (1993) 4 Cal.4th 1187, 1194 [17 Cal.Rptr.2d 828, 847 P.2d 1044]; Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1131 [270 *697Cal.Rptr. 1, 791 P.2d 587].) In light of these concerns, I would not only reconsider the correctness of our holding in Bertero v. National General Corp. (1974) 13 Cal.3d 43 [118 Cal.Rptr. 184, 529 P.2d 608, 65 A.L.R.3d 878] (Bertero), but would hold that where, as here, alternative theories of liability in support of a single unitary right are alleged by the plaintiff in the complaint in the first action and one of them is determined to have been supported by probable cause, the defendant in the first action may not pursue a derivative malicious prosecution claim. Instead, the defendant must rely on those sanctions for plaintiff’s misconduct made available by statute in the original action. Such a result, of course, would require us to overrule our contrary holding in Bertero.
A
Although the majority savages defendants’ arguments, its critique has little to do with the question before us. It is true that the “primary right” concept is in origin a creature of 19 th century code pleading and a construct originally developed for different analytical purposes. It does not follow, however, either that the notion itself cannot usefully be applied by analogy to the resolution of problems presented in the derivative litigation context, or that its adoption here is unsound. The use of the “primary right" model as a means of explicating the differing interests that may be at stake in a malicious prosecution action—criticized at such length by the majority—is, after all, only a metaphor.1 More importantly, the foundation supporting our holding in Bertero, supra, 13 Cal.3d 43, has been eroded by intervening changes in legislation and in this court’s own perspective on the balance to be struck between “the freedom of an individual to seek redress in the courts and the interest of a potential defendant in being free from unjustified litigation.” (Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1169 [232 Cal.Rptr. 567, 728 P.2d 1202].)
In short, the majority’s reasoning regarding the implications of recent decisions of this court on the vitality of Bertero, supra, 13 Cal.3d 43, is not only flawed, but, in its lengthy wrangling over the alleged irrelevance of the *698notion of primary rights, the opinion “thrusts at lions of [its] own imagining.” (Board of Education of Kiryas Joel Village School Dist. v. Grumet (1994) 512 U.S. _, _ [129 L.Ed.2d 546, 564, 114 S.Ct. 2481, 2493.) The real question before us is not the red herring of whether defendants or the Court of Appeal correctly parsed the nature of the “primary rights” doctrine. It is whether, on the merits of defendants’ argument, we should adjust more closely the conflicting interests of judicial access versus retaliatory lawsuits by abandoning the “alternate theory” holding of Bertero, supra, 13 Cal.3d 43, in favor of a rule that is more responsive to underlying policy concerns. I believe we should.
B
The Court of Appeal characterized the complaint in the original will contest action as one seeking redress of a single, “primary right”—namely, whether Beldon Katleman’s will should have been admitted to probate. From that premise, it reasoned that, in light of the policies shaping the availability of the malicious prosecution tort, a distinction ought to be drawn for purposes of applying the probable cause element—one of the components of the tort required to be established by the plaintiff—between complaints lacking probable cause with respect to one or more multiple primary rights and those in which some but less than all of several alternative theories supporting a single primary right lack probable cause.
The reasons why a “primary right” analysis—or its modem equivalent— should be applied in cases such as this one is obvious. As most practitioners are aware, in framing the complaint in a civil case, counsel often may be uncertain which theory of liability has the best chance of succeeding as the lawsuit unfolds; the plaintiff in, say, a wrongful termination of employment suit might allege multiple alternative theories of relief—rescission, breach of a written contract, breach of an oral contract, breach of an implied-in-fact contract, and wrongful termination in violation of public policy—as supporting the vindication of a single right. It is not only common to allege alternative theories of liability in connection with a single claim for relief arising out of a single transaction or event, but “ ‘[e]ven where there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief. [Citation.]’ ” (Bay Cities Paving & Grading, Inc. v. Lawyers’ Mutual Ins. Co., supra, 5 Cal.4th 854, 860, italics in original.)
Given that widespread practice and its justification, it is a hard mle that permits the defendant in the first action to then sue the plaintiff in that action in a subsequent malicious prosecution tort suit on the ground that some of *699the theories supporting a single claim for relief lacked probable cause. This is especially true where one (or more, but less than all) of the alternative theories is supported by probable cause. Having to defend against, say, three (or even five) theories of recovery supporting a single claim for relief, only one of which is determined to be supported by probable cause, is not qualitatively so different from having to defend against a single theory. Certainly this holds true in the case of the wrongful termination lawsuit imagined above, and certainly the burden is markedly less than that of having to defend against several different causes of action, one of which is sound and the others fabricated.
Whether denominated a “primary right” or a single cause of action, such unitary claims for relief typically arise from a “transaction or series of connected transactions” (as section 24, subdivision 1 of the Restatement Second of Judgments has it). For that reason, a defendant required to defend against a complaint pleading the five alternative theories of recovery in the wrongful termination action imagined above is likely to be under less of a defensive burden than, say, the defendant in Singleton v. Perry (1955) 45 Cal.2d 489 [289 P.2d 794], where the plaintiff swore to two distinct criminal complaints, one for the theft of a Cadillac and another for the theft of jewelry and other personal property. (Id. at p. 492.) To my mind, such pragmatic concerns justify treating the two types of cases differently.
In addition to such practical considerations, our holding in Bertero, supra, 13 Cal.3d 43, falls short in several other respects. As the Court of Appeal summed it up, Bertero’s “alternate theory rule invites a multitude of unwarranted litigation, encourages excessive and repetitive litigation, discourages citizens from bringing meritorious civil disputes to the courts, and is inconsistent with modem pleading practice”; while what it termed the “primary right” theory “suffers from none of these deficiencies and adequately protects defendants from unmeritorious lawsuits.” If these characterizations are accurate—as I believe them to be—then I cannot imagine why we would be unwilling to embrace the result urged upon us by defendants. My point is assuredly not that we should throw overboard the remedy of the malicious prosecution tort altogether. It is simply that, in assessing the conditions for its maintenance in particular circumstances, we should continue to do what we have pledged to do at least since our decision five years ago in Sheldon Appel, supra, 47 Cal.3d 863: Take special care to weigh on which side of the competing interests the balance falls. Unlike the majority, applying that calculus here leads me to conclude that plaintiff’s remedy lies in the sanctions that were available to him in the will contest proceeding, not in another lawsuit.
The majority attempts to counter this reasoning by asserting that, as a practical matter, there are too many variables affecting a given piece of *700litigation to ensure that implementing a “primary rights”-like limitation on the scope of malicious prosecution actions would serve its desired end of reducing the judicial burden of retaliatory claims. But that reasoning, while perhaps descriptively accurate, misses the point. Judges must often craft rules designed for the average run of cases precisely because they would be paralyzed if required to account for the atypical handful that lie at the margins. It is thus no answer to say that we are foreclosed from modifying Bertero because a new rule would not work with complete efficiency in all cases. Of course it would not; but neither need it do so in order to justify its adoption.
What is worse, every time this court upholds the availability of a malicious prosecution action, our ruling has two consequences, both problematical: We authorize yet another derivative or retaliatory lawsuit, a creature we have repeatedly looked on with a skeptical eye, and we limit incrementally the ideal of full and open access to the courts by the threat to litigants and their counsel of retaliatory suits. (See, e.g., Rubin v. Green, 4 Cal.4d 1187, 1196-1199; Sheldon Appel, supra, 47 Cal.3d 863; Silberg v. Anderson (1990) 50 Cal.3d 205 [266 Cal.Rptr. 638, 786 P.2d 365]; Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc., supra, 42 Cal.3d 1157; Pacific Gas & Electric Co. v. Bear Stearns & Co., supra, 50 Cal.3d 1118.)
C
There is another consideration supporting defendants’ argument: The veritable sea change that has taken hold in social and judicial attitudes toward multiplying litigation in the 20 years since we decided Bertero, supra, 13 Cal.3d 43. In Sheldon Appel, supra, 47 Cal.3d 863, at page 872, this court observed that “in recent years ... the large volume of litigation filed in American courts had become a matter of increasing concern, and in some quarters it has been suggested that a reassessment of the traditional ‘disfavored’ status of the malicious prosecution tort, and a relaxation of some of the traditional elements of the tort, may be in order.” We noted, however, that “most of the academic commentators have concluded that expansion of the malicious prosecution tort is not a promising remedy for the problem,” and that the courts of several other states “have recently addressed this same question and, in thoughtful opinions, have rejected attempts to broaden the application of the tort. . . .” (Id. at p. 873.)
After reviewing the competing policy choices, we concluded that the preferable course was to emphasize the availability of sanctions within the original action itself as a means of penalizing groundless claims, rather than expanding the scope of the malicious prosecution tort. We also took note of *701recent measures enacted by the Legislature “to facilitate the early weeding out of patently meritless claims and to permit the imposition of sanctions in the initial lawsuit—against both litigants and attorneys—for frivolous or delaying conduct.” (Sheldon Appel, supra, 47 Cal.3d at pp. 873-874.) Among the measures we cited as indicative of legislative attitudes were the remedies provided by Code of Civil Procedure sections 437c, 1038,128.5 and 409.3— remedies that were not available to a defendant when Bertero, supra, 13 Cal.3d 43, was decided. We concluded that “[b]ecause these avenues appear to provide the most promising remedies for the general problem of frivolous litigation, we do not believe it advisable to abandon or relax the traditional limitations on malicious prosecution recovery.” (Sheldon Appel, supra, 47 Cal.3d at p. 874.)
Less than two years ago, we applied the teachings of Sheldon Appel, supra, 47 Cal.3d 863, in Rubin v. Green, supra, 4 Cal.4th 1187. There, we held that a lawsuit alleging the wrongful solicitation of clients filed by the defendant in a pending action against the attorneys for the opposing plaintiffs was not maintainable. Among other reasons, we relied on the fact that such a lawsuit was “inconsistent with the choice made in Sheldon Appel, supra, 47 Cal.3d 863, where we specifically discounted another round of litigation as an antidote for the fevers of litigiousness, preferring instead the increased use of sanctions within the underlying lawsuit and legislative measures.” (4 Cal.4th at p. 1199.)
In assessing the significance of this development, it is important to underline the conditions that drove our reasoning in Sheldon Appel and the exact nature of our conclusion. The majority opinion rejects defendants’ reliance on our endorsement in Sheldon Appel of measures such as section 128.5 on the ground that the Legislature did not intend “to substitute this remedy for the cause of action for malicious prosecution . . . .” (Maj. opn., ante, at p. 687.) Our unanimous opinion in Sheldon Appel, supra, 47 Cal.3d 863, was not, however, parsing the intent behind intervening legislation. Instead, we wrote as the state’s highest court, responsible for shaping the scope and availability of common law tort remedies in light of the perceived wisdom of the day. As a part of that climate of opinion, we relied on statutory efforts to reduce frivolous litigation, including enactment of section 128.5, as emblematic of legislative attitudes toward both the “litigation explosion” and effective correctives for it. Taking our cue from the choice evident in such measures, we reasoned in effect that the courts might usefully supplement the solutions of positive law by declining to expand the *702malicious prosecution tort, relying instead on intrasuit sanctions. (47 Cal.3d at p. 874.)2
It is a short step from embracing the proposition that statutory sanctions for frivolous claims are a superior substitute for an expanded malicious prosecution action as a means of reducing groundless lawsuits, to adopting the view that, under circumstances in which an adequate intrasuit remedy is available to redress certain types of groundless pleadings, the availability of the derivative tort remedy should be contracted. Indeed, the symmetry by which the lesser harm of a groundless alternate theory is redressed by the intramural remedy of sanctions is virtually exact. The reduced burden of defending against improbable (so to speak) theories of recovery allegedly supporting a single claim for relief is sufficiently compensated for by the imposition of monetary sanctions in the initial lawsuit, while the greater harm of defending against fabricated causes of action continues to justify the derivative malicious prosecution claim. The net result, of course, is an incremental reduction in the quantum of litigation and the associated expenditure of resources, a more closely calibrated deterrent to judicial access, and a sanction more commensurate with the offense.
The majority rejects this result by the expedient of failing to discriminate between groundless claims and groundless theories: “We are willing,” the majority writes, “. . . to incur [the] burdens and costs [of litigation] when [it] is well founded or, even when ultimately unsuccessful, was at least initiated with probable cause and without malice. . . . That policy becomes counterproductive, however, when it operates to promote litigation that is groundless and motivated by malice; such litigation has no place in our judicial system . . . .” (Maj. opn., ante, at p. 694, italics added.) The simple fact—one which the majority persists in ignoring—is that by definition a claim seeking to vindicate a single primary right and falling within the alternate theory rule is not entirely groundless. At least one of the several *703theories alleged in support of the underlying primary right is supported by probable cause, again by definition. As a result, the underlying claim itself is incapable of supporting a subsequent malicious prosecution action. That conclusion, in my view, is sufficient to place the alternate theory cases on a different footing from those alleging groundless causes of action.
Likewise, the majority’s argument that we should not overrule Bertero because the remedies available to litigants in the form of intrasuit sanctions and retaliatory malicious prosecution actions are not coextensive again misses the point. To be sure, they are not coextensive. That is the point. The defendant subjected to the single claim/multiple theory lawsuit is remitted to an intrasuit remedy precisely because the burden of defense is assessed as having been less than that facing a party forced to defend against several groundless causes of action. After all, a lesser invasion of the defendant’s interest in being free from unjustified litigation merits a commensurably lesser sanction.
Conclusion
Under circumstances in which it is possible to vindicate the interests in promoting judicial access and restraining additional litigation, while at the same time responding to the interests of those who are forced to defend against groundless allegations, this court should not hesitate to do so. Given the hindsight furnished by a generation of experience since our decision in Bertero, supra, 13 Cal.3d 43, this is, to my mind, a case in which the policies promoting judicial access and curbing lawsuits are not outweighed by those that encourage derivative litigation. I would overrule our alternate theory holding in Bertero and direct the Court of Appeal to affirm the judgment of the trial court sustaining defendants’ demurrer to the complaint.
On November 30, 1994, the opinion was modified to read as printed above.
In point of fact, I am not at all persuaded that the use of a “primary right” analysis would fail to provide a workable means of segregating those malicious prosecution actions that should go forward and those that should be barred in favor of sanctions within the prior action. Applied under its more familiar label of “cause of action” (see, e.g., 4 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 23, pp. 66-67), and interpreted in light of modem transactional notions (cf. Rest.2d, Judgments, § 24, subd. (1)), the concept seems sufficiently stable to be applied effectively by the trial courts in passing on, say, a demurrer to a malicious prosecution complaint. (Cf. Bay Cities Paving & Grading, Inc. v. Lawyers’ Mutual Ins. Co. (1993) 5 Cal.4th 854 [21 Cal.Rptr.2d 691, 855 P.2d 1263].)
Fortunately, the damage inflicted by the majority’s constrictive gloss of section 128.5 is erased by the recent repeal of the statute and the enactment of new sanctions provisions incorporating the substance of rule 11 of the Federal Rules of Civil Procedure (28 U.S.C.), itself recently revised. (Assem. Bill No. 3594 (1993-1994 Reg. Sess.), signed by the Governor on Sept. 28, 1994, eff. Jan. 1, 1995.) Among other expansions in the trial court’s powers to sanction misconduct by counsel or a party, the new statute suspends the operation of section 128.5 for four years and substitutes in its place the text of federal rule 11, modified in minor particulars. The new statute authorizes trial judges to sanction attorneys, their firms and clients for violating a certification that a complaint (as well as other filings) is not filed “primarily for an improper purpose,” that the claims are warranted by existing law (with certain exceptions), and that allegations have factual support. (Assem. Bill No. 3594, supra, enacting Code Civ. Proc., § 128.7, subd. (b).) If these terms are not intended to reach misconduct analogous to that addressed by malicious prosecution actions, I am at a loss to fathom what would.