Can a settlement involving waiver of costs and fees prevent a later action for malicious prosecution?

Because the tort of malicious prosecution has a potential chilling effect on the willingness of persons to report crimes or pursue legal rights and remedies in court, its requirements must be strictly enforced. (Ludwig v. Superior Court, supra, 37 Cal.App.4th at p. 29.) The fact that a settlement occurs after trial as opposed to earlier in the proceeding does not change the essential fact that the litigation terminated as the result of the parties' agreement and not based on the merits of the action. We recognize that cases are settled for a variety of reasons; however, where both sides give up anything of value in order to end the litigation, a party cannot later claim he received a favorable termination. (Ibid.; see also Pender v. Radin (1994) 23 Cal.App.4th 1807, 1814 [settlement involving waiver of costs and fees precludes a later action for malicious prosecution].) It is not necessary to analyze the particular circumstances of the settlement or to examine the motivations of the parties -- a negotiated settlement not only creates an ambiguity as to the merits of the underlying action, it is entirely inconsistent with bringing a further lawsuit for malicious prosecution. (See Ludwig v. Superior Court, supra, 37 Cal.App.4th at p. 29.)