Case No.: 502009CA040800XXXXMBAG Edwards' Opposition to Epstein's Motion for Summary Judgment Page 9 of 15
which might otherwise apply to a defamation claim for statements made during the course of a judicial proceeding did not bar a malicious prosecution claim.
In light of the implicit recognition by the Supreme Court in Levin that a claim of malicious prosecution is not barred by the litigation privilege — an implicit recognition acknowledged by the Third District itself — Epstein’s reliance on Wolfe is misplaced. Wo/fe is also factually distinguishable from Edwards’ claims against Epstein. Wolfe involved a malicious prosecution action against attorneys. Separate policy considerations might serve to impose additional limitations on the assertion of malicious prosecution claims against attorneys — against whom alternative remedies exist such as bar disciplinary proceedings. See Taylor v. McNichols, 243 P.2d 642 (Idaho 2010). Moreover, in light of the decisions in Wright v. Yurko, supra and Olson v. Johnson, supra, the weight of authority supports the proposition that the litigation privilege would not apply to malicious prosecution claims.
Both the Third and Fourth Districts have applied the litigation privilege to abuse of process claims. However, Wolfe itself, and the decisions of the Third and Fourth Districts cited in Wolfe, involved the litigation privilege as applied to claims of abuse of process by attorneys. None of the cases involved the extraordinary actions of an individual party like Epstein who carried out a course of action against Plaintiff's counsel with a singular purpose unrelated to any legitimate judicial goal. Under the compelling facts of this case, where the actions of Epstein are coupled with the elements of malice and absence of probable cause arising from the unfounded filing of the claims against Edwards, the litigation privilege should not have any applicability to the abuse of process claim asserted by Edwards.
There are Disputed Issues of Fact Precluding Summary Judgment on the Abuse of Process Claim
An abuse of process claim requires pleading and proof of the following three elements: 1) that the defendant made an illegal, improper or perverted use of process; 2) that the defendant had ulterior motives or purposes in exercising such illegal, improper, or perverted use of process; and 3) that, as a
result of such action on the part of the defendant, the plaintiff suffered damage.” See S&J Invs. v. Payless
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