An abuse of process claim in California lets you sue someone who weaponized a specific legal tool — a subpoena, a discovery request, an attachment order, a lien — for a purpose it was never designed to serve. It is not a claim about whether the underlying lawsuit should have been filed. It is a claim about what someone did with the machinery of litigation once a case was underway. Winning is harder than most people expect, because California’s litigation privilege and anti-SLAPP statute block most of these claims before they reach a jury.
What Abuse of Process Actually Covers
The tort targets misuse of litigation tools, not the decision to sue. If someone filed a meritless lawsuit against you, your remedy is malicious prosecution, a different tort with different rules. Abuse of process applies when a case exists — even a legitimate one — and a party twists a specific procedure to extract something they aren’t entitled to.1Justia. CACI No. 1520 – Abuse of Process – Essential Factual Elements
California courts describe the line this way: malicious prosecution concerns a meritless lawsuit and the damage it caused, while abuse of process concerns the misuse of the tools the law gives litigants once they are already in a lawsuit.1Justia. CACI No. 1520 – Abuse of Process – Essential Factual Elements So simply filing or continuing a case for a bad reason doesn’t support this claim. You need to point at a specific procedural act.
The Two Elements You Have to Prove
A plaintiff must establish both an ulterior motive and a willful improper act. One without the other isn’t enough.
Ulterior Motive
You have to show the defendant used the process to accomplish something beyond what that process was designed to do. Usually this looks like coercion aimed at a collateral advantage: using a procedural tool as a lever to force you to hand over property, pay money, or agree to terms you otherwise wouldn’t accept.1Justia. CACI No. 1520 – Abuse of Process – Essential Factual Elements
Harassment or vexation alone won’t do it. California courts have held that a desire to annoy or burden the other side, standing by itself, isn’t the kind of ulterior motive the tort requires. There has to be a specific unjustifiable advantage the defendant is trying to extract.1Justia. CACI No. 1520 – Abuse of Process – Essential Factual Elements
Willful Improper Act
You also have to identify a definite act or threat that isn’t authorized by the process, or that pursues an objective outside what the process legitimately reaches. Recurring examples include improper or excessive use of attachment orders, discovery deployed to burden or coerce, and liens or motions filed for purposes unrelated to the litigation itself.1Justia. CACI No. 1520 – Abuse of Process – Essential Factual Elements
Bad behavior during a lawsuit isn’t automatically abuse of process. Lying to the judge, playing dirty in depositions, being generally aggressive — none of that qualifies unless the party is wielding a specific procedural tool in a way it wasn’t designed to be used.
The Litigation Privilege Will Probably Come Up
This is where most claims die. California Civil Code section 47(b) creates a broad litigation privilege that shields communications made in judicial proceedings from tort liability.2California Legislative Information. California Civil Code 47 Courts have stretched the privilege well past defamation to cover nearly every tort, with malicious prosecution as the notable exception. Abuse of process is not an exception.
The California Supreme Court confirmed in Rusheen v. Cohen (2006) that the privilege applies to abuse of process claims. When the heart of the complaint is a privileged communication — a declaration, a filing, testimony — the privilege reaches noncommunicative acts necessarily connected to it, including steps taken to enforce a judgment obtained through the challenged filing. The practical effect is broad: if the conduct you want to sue over is grounded in what someone said or filed during the case, section 47(b) will likely block it.
Claims that survive tend to involve conduct that goes beyond communicative acts. Using an attachment order to seize property the party knows is off-limits, or executing on a judgment obtained through fabricated service, gets closer to conduct the privilege may not cover. But the threshold is high, and this is the point at which most abuse of process cases collapse.
The Anti-SLAPP Motion and the Money at Stake
Even a claim that clears the litigation privilege faces California’s anti-SLAPP law. Code of Civil Procedure section 425.16 lets defendants file a special motion to strike any cause of action that arises from an act in furtherance of the right of petition or free speech in connection with a public issue.3California Legislative Information. California Code of Civil Procedure 425-16 Because abuse of process by definition involves conduct during litigation, these claims routinely fall within the statute’s reach.
The motion works like this. The defendant files within 60 days of being served. All discovery is automatically stayed while the motion is pending. If the defendant shows the claim targets protected activity, the burden shifts to you to demonstrate a probability of prevailing. Fail that showing and the court strikes the claim — and awards attorney’s fees and costs to the defendant.3California Legislative Information. California Code of Civil Procedure 425-16
That fee-shifting provision is the real risk. A losing plaintiff pays both sides’ legal bills. Before you file an abuse of process claim, you should have a candid conversation with counsel about whether the facts can survive an anti-SLAPP motion, because losing one is expensive.
You Have Two Years
Abuse of process claims are governed by the two-year statute of limitations in Code of Civil Procedure section 335.1, which covers actions for injury caused by the wrongful act of another.4California Legislative Information. California Code of Civil Procedure 335.1 The clock generally runs from the misuse of the procedural tool itself, not from the filing of the underlying lawsuit. Miss it and the claim is gone.
What You Can Recover If You Win
Compensatory damages cover the actual financial harm caused by the misuse: lost business, the cost of defending against the abusive procedure, and similar economic losses. Emotional distress damages are available when you can show genuine psychological harm from the conduct.
Punitive damages are possible in egregious cases. Under Civil Code section 3294, you have to show malice, oppression, or fraud — malice meaning either an intent to injure or despicable conduct carried out with willful and conscious disregard for your rights.5California Legislative Information. California Civil Code 3294 Because abuse of process is by nature an intentional misuse of legal tools, strong facts on liability sometimes carry a credible punitive damages theory with them.
One thing to keep in mind: damages from an abuse of process claim are generally taxable. Federal law excludes only damages received on account of personal physical injuries or physical sickness, and emotional distress does not count as a physical injury for that purpose. Punitive damages are always taxable.6Office of the Law Revision Counsel. 26 USC 104 – Compensation for Injuries or Sickness
If the Conduct Happened in Federal Court
When abusive litigation tactics occur in a federal case, 28 U.S.C. § 1927 offers a separate route. The statute lets a federal court require an attorney who unreasonably and vexatiously multiplies the proceedings to personally pay the excess costs, expenses, and attorney’s fees that result.7Office of the Law Revision Counsel. 28 USC 1927 – Counsels Liability for Excessive Costs It targets the lawyer rather than the party, and the court imposes the sanction directly in the same case, so you don’t need to file a separate lawsuit. When the conduct occurred in federal court, section 1927 is often a more practical remedy than a California abuse of process claim.