After our initial opinion had been filed herein, petitioner filed a petition for rehearing. Therein petitioner contends that we have "inadvertently engrafted negligence concepts onto the definition of `probable cause' in a malicious prosecution context" because of our adherence to the probable cause definition articulated in Tool Research Engineering Corp. v.Henigson, 46 Cal.App.3d 675 [120 Cal.Rptr. 291]. As explained in our opinion, Tool Research holds, as against a claim of malicious prosecution, that "[a]n attorney has probable cause to represent a client in litigation when, after a reasonableinvestigation and industrious search of legal authority, he has an honest belief that his client's claim is tenable. . . . [Citation.]" (Id., at p. 683, italics added.)
Petitioner arguest that by following the Tool Research standard we have "made liability for `negligence' and liability for `malicious prosecution' virtually indistinguishable," apparently because a component common to both determinations is proof that a defendant acted unreasonably. Therefore, petitioner urges that we grant a rehearing because we have reasoned inconsistently in holding petitioner is entitled to summary judgment on Dr. Steward's negligence claim, yet not entitled to such relief on Dr. Steward's claim for malicious prosecution. Petitioner's confusion deserves further commentary on the difference between the torts of negligence and malicious prosecution.
(13) A threshold determination in assessing the validity of any plaintiff's claim sounding in negligence is the legal policy conclusion that a duty of care is extant. (See, e.g.,McGarvey v. Pacific Gas Elec. Co., 18 Cal.App.3d 555, 561-562 [95 Cal.Rptr. 894].) The assessment of whether a person's behavior is reasonable or unreasonable is of course relevant in ascertaining whether a preexisting duty has been breached. However, absent the presence of duty, a person's unreasonable behavior resulting in injury imposes no liability for negligence, i.e., failing to adhere to the reasonable person standard is inconsequential where no duty is owed by a careless party to an injured party. (See, e.g., 4 Witkin, Summary of Cal. Law (8th ed. 1974) § 489, p. 2750.) *Page 192
In section I of our opinion we held as a policy matter that petitioner-attorney owed no duty to Dr. Steward to conduct a reasonable investigation into the facts and law before filing a complaint for medical malpractice on behalf of Harmer. Accordingly, even assuming arguendo that petitioner unreasonably failed to investigate the facts and law before proceeding with Harmer's litigation, Dr. Steward could assert no negligence cause of action against petitioner as a matter of law. (See fn. 2, p. 173.)
Contrastingly, in section II we held that triable issues of material fact existed as to Dr. Steward's malicious prosecution claim against petitioner. We therefore refrained from issuing a writ of mandate to the trial court ordering it to enter summary judgment in petitioner's favor. Implicit in that decision, was the legal evaluation that Dr. Steward could properly proceed with a cause of action against petitioner predicated on the tort of malicious prosecution.
(14) The propriety of a cause of action for malicious prosecution against an attorney, unlike a cause of action sounding in negligence, is not based on the legal question of whether a duty of care exists and has been breached. Rather, a malicious prosecution cause of action is bottomed on the allegation and proof of the following three factors: (1) the prior civil action against the plaintiff must have terminated in the plaintiff's favor; (2) a defendant-attorney must have lacked probable cause in representation of his client in the prior action; and (3) the defendant-attorney must have actedmaliciously therein. (Tool Research Engineering Corp. v.Henigson, supra, 46 Cal.App.3d 675, 682.) If the plaintiff fails to sustain the burden of proof in demonstrating the existence of any one of these three factors, the plaintiff loses. Hence, the fact that a jury, for example, decides a defendant-attorney unreasonably failed to investigate the facts and law before proceeding with a lawsuit, thereby permitting the trial court to decide as a matter of law lack of probable cause (see, e.g., Tool Research Engineering Corp. v. Henigson,supra, 46 Cal.App.3d 675, 683), does not as such result in a plaintiff's judgment absent establishing the other two factors.
(15) It is here that we perceive the locus of petitioner's confusion. What is reasonable and what is unreasonable in terms of the attorney's prefiling investigation is a question of fact; the legal determination of probable cause or the lack of it arises from whatever is found on the factual issues. As noted in our initial opinion, the third element of a malicious prosecution action, i.e., malice, is often inferred from the *Page 193 factual predicate underlying the determination of a lack of probable cause. (Singleton v. Singleton, 68 Cal.App.2d 681, 696 [157 P.2d 886].) However, this result is not automatic. To complete proof of malicious prosecution, the presence of malice must be found as a matter of fact. As a consequence, it always remains a possibility that unreasonable behavior in terms of the nature of the prefiling behavior of the attorney, even though it would support a conclusion that there was no probable cause to file, would nevertheless not support an inference of malice. Actually, the facts of this particular case, when it is tried, if special interrogatories to the jury are carefully drawn, may well present such a result. Thus, in a given case, unreasonable behavior which could lead to a determination that there was a lack of probable cause to file, might not provide a sufficient basis to infer malice, and without malice no case of malicious prosecution can be proved.
Alternatively, assuming we had held that an attorney owed a duty of care to adverse third parties in litigation to investigate reasonably the facts and law before filing a complaint, if a jury found that the attorney breached that duty by acting unreasonably in failing adequately to investigate, the plaintiff would prevail.1 (16) It follows, therefore, that the quantum of culpable conduct which must be proved to prevail as a plaintiff in a malicious prosecution case is significantlygreater than that required to prevail in a case alleging only negligence. For this reason we have concluded that petitioner's contention that our decision makes liability for negligence and malicious prosecution "virtually indistinguishable" is actually specious and hence without merit.
The petition for rehearing is denied.
Gardner, P.J., and Morris, J., concurred.
Petitioner's application for a hearing by the Supreme Court was denied September 12, 1979.