Adams v. Superior Court
| Decision Date | 07 January 1992 |
| Docket Number | No. H008871,H008871 |
| Citation | 3 Cal.Rptr.2d 49,2 Cal.App.4th 521 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Paul ADAMS et al., Petitioners, v. The SUPERIOR COURT of Santa Clara County, Respondent; Mai Thu Tuyet Nguyen VU, Real Party in Interest. |
Paul F. Adams, Scott A. Sommer, Tobin & Tobin, Walnut Creek, Joaquin Celaya, Don Branner, Joseph A. LaMantia, Salinas, for petitioners.
No appearance for respondent (Superior Court).
Joseph Mayen, San Jose, for real party in interest.
Petitioners seek a writ of mandate to compel the trial court to sustain a demurrer to real party's claims of abuse of process and malicious prosecution. Petitioners Paul Adams, Scott Sommer, John Christian and Tobin & Tobin are attorneys who represent petitioners Duane and Amelia Wiseman in a civil action in Monterey County. The attorney petitioners are also the defendants in real party Vu's lawsuit for abuse of process and malicious prosecution brought in Santa Clara County. The attorneys contend that (1) the refusal of the Santa Clara County Superior Court to sustain their demurrer to Vu's tort lawsuit is incorrect and (2) that requiring them to defend this lawsuit will materially interfere with their professional relationship with their clients, the Wisemans, in the Monterey County litigation. We agree with both contentions, for reasons we will state. We will issue the writ because potential destruction of the professional relationship between the Wisemans and their chosen counsel in ongoing litigation justifies interlocutory writ review. (See e.g. Meadow v. Superior Court (1963) 59 Cal.2d 610, 616, 30 Cal.Rptr. 824, 381 P.2d 648; Golden State Glass Corp. v. Superior Ct. (1939) 13 Cal.2d 384, 90 P.2d 75.)
The attorney petitioners are individual attorneys and a law firm who represent the Wisemans in a civil lawsuit against Vu in Monterey County for damages for alleged breach of contract, fraud and other causes in connection with a real estate transaction. The attorneys are also named defendants in this lawsuit brought by Vu in Santa Clara County alleging four causes of action for malicious prosecution and abuse of process.
Vu's lawsuit is based on the premise that the attorneys acted tortiously when they attempted to intervene in criminal cases in Santa Clara and San Mateo Counties in which Vu was attempting to have felony convictions reduced to misdemeanors or expunged. During discovery in the Monterey action Vu said she had never been convicted of a felony. In fact she had been previously convicted of two felonies, in San Mateo and Santa Clara Counties, as to which she had completed probation, and her attorneys had filed motions to reduce or expunge those convictions. The Santa Clara County Superior Court granted reduction of the felony conviction pursuant to Penal Code section 17, subdivision (b)(3), and the San Mateo County Superior Court granted dismissal pursuant to Penal Code section 1203.4. (Pen.Code, § 17, subd. (b)(3) applies to offenses which can be characterized either as felonies or misdemeanors by the court and permits a misdemeanor classification of a felony on application after a After both courts granted that relief, petitioners filed motions for reconsideration in both actions seeking to bring to the attention of the respective courts Vu's alleged conduct in the fraudulent real estate sale which generated the Monterey litigation. The attorneys' alleged motive was their wish to preserve the felony convictions to impeach Vu in the civil lawsuit in Monterey. The pleading charges that they made the reconsideration motions "for the purpose of annoying [Vu], to cause [Vu] to expend further moneys on attorneys' fees to defend said motion; to cause [Vu] to experience anxiety, nervousness and loss of sleep resulting from her shame and embarrassment associated with the possibility of once again being considered a felon; and furthermore ... with purpose of gaining collateral advantage on the pending litigation in Monterey County, ..." Vu also charges the motive of pressuring her to "compel her to yield" in the Monterey lawsuit.
grant of probation. Pen.Code, § 1203.4 permits expungement of a conviction in the interests of justice after successful completion of probation.)
The San Mateo County Superior Court denied petitioners' motion for reconsideration without any mention of lack of standing. However the Santa Clara County Superior Court denied the motion for lack of standing.
Vu then sued petitioners for malicious prosecution and abuse of process in Santa Clara County. By minute order that court has overruled petitioners' demurrers to causes of action for abuse of process and has sustained, but with leave to amend, demurrers to causes of action for malicious prosecution.
Petitioners say this order is error because there can be no malicious prosecution, since petitioners neither instituted any action nor did Vu obtain a favorable termination. They argue the motion for reconsideration is not an independent claim on which a claim of malicious prosecution can be based. The abuse of process claims are argued to be deficient because the reconsideration motions are privileged as publications in a judicial proceeding under Civil Code section 47. Petitioners also argue that the abuse of process claims are deficient because petitioners did not initiate any action against Vu, she did not receive a favorable result in the criminal proceeding, and the motion for reconsideration was not an independent action upon which a claim of abuse of process can be based. However, we do not consider these arguments as relevant to the validity of the abuse of process claims; these arguments all go to the claim for malicious prosecution but are not relevant to the claim of abuse of process, a tort which does not depend on initiation of a lawsuit or on its outcome but rather consists of use of legal process in a wrongful manner with an ulterior motive. (Abraham v. Lancaster Community Hospital (1990) 217 Cal.App.3d 796, 824, 266 Cal.Rptr. 360.)
We agree with petitioners' justification for writ relief, that the existence of the malicious prosecution and abuse of process lawsuit will drive a wedge between petitioners and the Wisemans in the Monterey County litigation. The potential deprivation of counsel for the Wisemans in the Monterey lawsuit is a sufficient justification for writ relief.
Vu's response to petitioners' arguments does not contend that writ review is not justified. She does argue that the torts have been adequately alleged. First, she says petitioners had no standing to intervene in the criminal actions in which they sought reconsideration. That lack of standing, she argues, makes their activities in the lawsuit vulnerable to abuse of process claims and denies them any claim of privilege. Second, she argues that their motions for reconsideration constitute malicious prosecutions because, due to the lack of standing, the actions were malicious.
The tort of malicious prosecution requires the initiation of a full blown action Here that reasoning does apply, for slightly different reasons. The motions for reconsideration were not made in the ongoing lawsuit between the Wisemans and Vu and therefore there is less direct interference in the attorney client relationships in that lawsuit. Nevertheless, plainly those motions were in pursuit of the Wisemans' interests in the Monterey lawsuit, and to ground a malicious prosecution action upon those motions would disrupt if not destroy the ability of petitioners to represent the Wisemans in that lawsuit. Accordingly similar policy considerations govern this matter as were applied in the Lossing and Green cases. Also, the San Mateo and Santa Clara courts did have inherent judicial power over the proceedings before them, and those powers provided a remedy to Vu for any filings made by petitioners in those lawsuits. Indeed in Santa Clara County the court did dismiss the motion for reconsideration for lack of standing. It follows that just as in the cases cited above, the courts here had broad inherent powers sufficient to control any problems generated by petitioners' making of the motions for reconsideration.
as well as its favorable termination for the malicious prosecution plaintiff; subsidiary procedural actions within a lawsuit such as an application for a restraining order or for a lien will not support a claim of malicious prosecution. (See 5 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, § 439, p. 522; Lossing v. Superior Court (1989) 207 Cal.App.3d 635, 639, 255 Cal.Rptr. 18; Green v. Uccelli (1989) 207 Cal.App.3d 1112, 1120, 255 Cal.Rptr. 315; Silver v. Gold (1989) 211 Cal.App.3d 17, 24, 259 Cal.Rptr. 185.) The reason the courts have held that a malicious prosecution action can not be grounded upon actions taken within pending litigation is that permitting such a cause of action would disrupt the ongoing lawsuit by injecting tort claims against the parties' lawyers and because the appropriate remedy for actions taken within a lawsuit lies in the invocation of the court's broad powers to control judicial proceedings. (See Lossing v. Superior Court, supra, 207 Cal.App.3d at p. 639, 255 Cal.Rptr. 18.)
We conclude that the mere making of those motions in the criminal cases are not independent actions and cannot constitute initiation of lawsuits against Vu for purposes of defining the tort of malicious prosecution. The trial court should have sustained the demurrer to those claims without leave to amend.
The tort of abuse of process, however, may be founded upon a subsidiary activity within the lawsuit. Here an available defense, at the pleading stage, is the claim of judicial privilege. The privilege of Civil Code section 47, subdivision (b)(2) is very broad, to protect publications or broadcasts made in any judicial...
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