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Case No.: 502009CA040800XXXXMBAG
Edwards' Opposition to Epstein's Motion for Summary Judgment
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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. Wolfe 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&I Invs. v. Payless

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