ABUSE OF PROCESS AND MALICIOUS PROSECUTION.

 

ABUSE OF PROCESS AND MALICIOUS PROSECUTION.

TAKEN FROM WIKIPEDIA. ( JUST FOR REFERENCE PURPOSES). I'VE OUTLINED CERTAIN KEY POINTS.- DAVID.

An abuse of process is the unjustified or unreasonable use of legal proceedings or process to further a cause of action by an applicant or plaintiff in an action. It is a claim made by the respondent or defendant that the other party is misusing or perverting regularly issued court process (civil or criminal) not justified by the underlying legal action. In common law it is classified as an intentional tort. It is to be distinguished from malicious prosecution, another type of tort that involves misuse of the public right of access to the courts.

The elements of a valid cause of action for abuse of process in most common law jurisdictions are as follows: (1) the existence of an ulterior purpose or motive underlying the use of process, and (2) some act in the use of the legal process not proper in the regular prosecution of the proceedings.[1] Abuse of process can be distinguished from malicious prosecution, in that abuse of process typically does not require proof of malice, lack of probable cause in procuring issuance of the process, or a termination favorable to the plaintiff, all of which are essential to a claim of malicious prosecution.[2] "Process," as used in this context, includes not only the "service of process," i.e. an official summons or other notice issued from a court, but means any method used to acquire jurisdiction over a person or specific property that is issued under the official seal of a court.[3] Typically, the person who abuses process is interested only in accomplishing some improper purpose that is collateral to the proper object of the process and that offends justice, such as an unjustified arrest or an unfounded criminal prosecution. Subpoenas to testify, attachments of property, executions on property, garnishments, and other provisional remedies are among the types of "process" considered to be capable of abuse.

Malicious prosecution is a common law intentional tort. Like the tort of abuse of process, its elements include (1) intentionally (and maliciously) instituting and pursuing (or causing to be instituted or pursued) a legal action (civil or criminal) that is (2) brought without probable cause and (3) dismissed in favor of the victim of the malicious prosecution. In some jurisdictions, the term "malicious prosecution" denotes the wrongful initiation of criminal proceedings, while the term "malicious use of process" denotes the wrongful initiation of civil proceedings.

Criminal prosecuting attorneys and judges are protected from tort liability for malicious prosecution by doctrines of prosecutorial immunity and judicial immunity. Moreover, the mere filing of a complaint cannot constitute an abuse of process. The parties who have abused or misused the process have gone beyond merely filing a lawsuit. The taking of an appeal, even a frivolous one, is not enough to constitute an abuse of process. The mere filing or maintenance of a lawsuit, even for an improper purpose, is not a proper basis for an abuse of process action.

Declining to expand the tort of malicious prosecution, a unanimous California Supreme Court in the case of Sheldon Appel Co. v. Albert & Oliker, 47 Cal. 3d 863, 873 (1989) observed: "While the filing of frivolous lawsuits is certainly improper and cannot in any way be condoned, in our view the better means of addressing the problem of unjustified litigation is through the adoption of measures facilitating the speedy resolution of the initial lawsuit and authorizing the imposition of sanctions for frivolous or delaying conduct within that first action itself, rather than through an expansion of the opportunities for initiating one or more additional rounds of malicious prosecution litigation after the first action has been concluded."[1]

Posted by David McDonald at 9:21 PM No comments:  

Indianapolis mass shooting. SANDY HOOK PROMISE.

 

David

Last Friday, I woke up to the news of yet another mass shooting – this time in Indianapolis at  a FedEx facility, where eight people were murdered. In less than a month, there have been horrific mass shootings in Atlanta, Boulder, Orange County and now Indianapolis – and many more that never made the national news.

Each shooting brings me right back to the moment my life as I knew it ended – the moment I learned that my sweet little Daniel had been murdered in his first-grade classroom. My heart breaks for the families whose loved ones will never come home – because I know the pain never goes away.

I feel angry. I feel defeated. I feel like I've failed them.

But more than anything, I blame Congress for years of inaction. While we don't have all the details about this latest mass shooting yet, we know the legislative solutions we need to prevent gun violence. Now it's time to pass them before the next tragedy – starting with a bipartisan background checks bill.

Every moment this legislation sits in the Senate without a vote, more lives are at risk. That's why I'm personally asking you to join me and help us reach 100,000 people by tomorrow standing together to demand senators immediately expand background checks to keep guns out of dangerous hands. Please, will you sign your name now?

Please click here to add your name to demand the Senate finally pass the bipartisan background checks bill that we know will prevent future tragedies and save precious lives from gun violence.

Sign Your Name

I still carry a photo of my sweet little Daniel with me everywhere – not because I want people to feel sorry for me, but because I want them to look at the human toll of gun violence.

For my little boy, for all the lives we've lost and for the lives we can still save – thank you for speaking out today to demand action. Together, we can end this madness.

Mark Barden (Daniel's father)

Donate

Sandy Hook Promise Action Fund
PO Box 3489, Newtown, CT 06470, United States

Happy Earth Day! Up next on April 28: A reason to hope & act: UNION OF CONCERNED SCIENTISTS.

 

Earth Day Brings Big News This Year—Learn More on April 28 REGISTER

Dear David, Happy Earth Day! This is a momentous one, as President Joe Biden holds the Leaders Summit on Climate. Watch the summit live today—I know I'll be tuning in. But what does this summit mean? What can President Biden do on his own, and what does he need Congress—or the public—to do so that we can be as bold as the climate crisis demands? The Union of Concerned Scientists invites you to a webinar on April 28 to discuss today's Earth Day summit with our international climate policy expert, Dr. Rachel Cleetus. American Sign Language interpretation and closed captioning will be available during the webinar and we'll take questions live. After the Earth Day Summit: What Happens Now? Date: Wednesday, April 28 Time: 4:00–5:00 p.m. ET Register for the webinar today to learn what we can do to address the climate crisis. You'll come away from the conversation better informed, fired up, and with something concrete you can do to help make bold climate action possible this year. President Biden just unveiled a major domestic infrastructure plan, which includes significant clean energy and climate resilience investments. And today, we expect the next big news: our national commitments to worldwide cuts to carbon emissions. Will they be big enough to make a difference? And what will it take for them to become reality? Join us next week to find out what you need to know as a climate activist—register today. Rachel Cleetus, PhD, policy director for the UCS Climate & Energy Program, will answer our questions and offer us reason to hope. To add to the excitement, President Biden will be addressing the nation on April 28, just a few hours after our webinar, and we have a good feeling this same topic will come up. It's a perfect opportunity to make some collective noise across the country. I'll be asking Dr. Cleetus what she expects President Biden to say and what WE can do to make sure ambitious climate action happens this year. Then we'll all take a moment to take meaningful action, together, as one big group of UCS supporters. Dr. Cleetus has many years of experience with world climate talks, and the politics of climate action here at home. I hope you'll join me as we hear from Rachel what we need to know about the president's plan of action on climate change and what you and I can do about it. Please register for the webinar today and we hope to see you on April 28. Sincerely, Liz Schmitt Federal Action Campaign Team Union of Concerned Scientists   REGISTER

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It's Time for Corporate America pay its fair share in taxes. DEMOCRATS.COM

 

DAVID - It's time for a massive investment in our communities and in an equitable pandemic recovery. But every time Democrats propose investments to create jobs, rebuild infrastructure, secure a green energy future, make housing more affordable and more―like President Biden just did in his American Jobs Plan―Republicans (and some moderate Democrats) ask, "how are you going to pay for it?" Biden's historic $2.3 trillion American Jobs Plan will create 2.7 million more jobs, rebuild our communities and begin to create an economy that works for all of us. To make these investments, President Biden's Made in America Tax Plan would raise $2.5 trillion by making America's corporations begin to pay their fair share. Join us in calling on Congress to pass President Biden's American Jobs Plan and his Made in America Tax Plan to create millions of jobs for working families, rebuild our communities, and invest in our country's future. Biden's Made in America Tax Plan raises $2.5 trillion by increasing the corporate tax rate from 21% to 28%, closing loopholes that have incentivized multinational corporations to outsource jobs and shift profits to offshore tax havens, placing a 15% minimum tax on corporations so they can't get away with paying $0 in taxes, ending fossil fuel tax subsidies and more. In order to create an equitable recovery from this pandemic and build an economy that works for all of us, it's time for corporations to pay their fair share in taxes. Sign the petition demanding Congress invest in our country's future―paid for by making Corporate America pay its fair share. Consider these corporate tax horror stories: • In 2020, 55 major U.S. corporations paid ZERO dollars in federal income taxes, even though they collectively enjoyed almost $40.5 billion in pre-tax profits. • In 2018 over 1,500 U.S.-based multinational corporations paid an average U.S. tax rate of just 7.8% (even though the corporate tax rate is 21%)―a rate much lower than most middle-class families pay. • American corporations dodge an estimated $60 billion a year in U.S. taxes by shifting profits and production offshore. Thank you for fighting for a tax system and economy that works for everyone, not just the wealthy few. Bob Fertik