Babb v. Superior Court, S.F. 22761

Citation479 P.2d 379,3 Cal.3d 841,92 Cal.Rptr. 179
Decision Date15 January 1971
Docket NumberS.F. 22761
CourtUnited States State Supreme Court (California)
Parties, 479 P.2d 379 Leona O. BABB et al., Petitioners, v. The SUPERIOR COURT OF SONOMA COUNTY, Respondent; Robert S. HUNTINGTON, Real Party in Interest.

Timothy J. Crowley, Santa Rosa, in pro. per.

Jack H. Werchick, San Francisco, amicus curiae on behalf of petitioners.

No appearance for respondent.

Bledsoe, Smith, Cathcart, Johnson & Rogers, Robert A. Seligson, Kenneth E. Nussbaum and John C. Shaffer, Jr., San Francisco, for real party in interest.

SULLIVAN, Justice.

The question confronting us here is whether a defendant in a civil action may file a cross-complaint therein seeking a declaratory judgment that the action is being maliciously prosecuted. We have concluded that precedent, principle, practicality and policy forbid such a cross-complaint, which entails the risk of discouraging legitimate claimants and, at least in the instant case, pits plaintiff and her attorney against each other as adversaries.

The present petition arises out of an action for damages for medical malpractice brought by Leona O. Babb, through her attorney Timothy J. Crowley. In the instant proceedings Mrs. Babb and Mr. Crowley are petitioners and Dr. Huntington is the real party in interest. In the underlying action, Dr. Huntington filed an answer to Mrs. Babb's third amended complaint and at the same time, a cross-complaint 1 against both Mrs. Babb and her attorney Mr. Crowley seeking a declaratory judgment that (1) in the event that the malpractice action terminated favorably to him, Mrs. Babb and attorney Crowley be adjudged to have instituted and prosecuted it maliciously and without probable cause; and (2) in such event he be entitled to recover costs and attorneys' fees expended in the action. 2

Petitioners demurred generally to the cross-complaint, contending that a favorable termination of the prior proceeding is a necessary precondition to the maintenance of a malicious prosecution action. Although it recognized this long-standing rule of law, the trial court nevertheless overruled the demurrer on the ground that the cross-complaint was not premature since it sought only declaratory relief. Petitioners seek a writ of prohibition to prevent the trial court from proceeding with the malicious prosecution cross-action.

It is hornbook law that the plaintiff in a malicious prosecution action must plead and prove that the prior judicial proceeding of which he complains terminated in his favor. (White Lighting Co. v. Wolfson (1968) 68 Cal.2d 336, 349, 66 Cal.Rptr. 697, 438 P.2d 345; Jaffe v. Stone (1941) 18 Cal.2d 146, 149, 114 P.2d 335; Berson v. Ewing (1890) 84 Cal. 89, 92, 23 P. 1112.) The rationale for this requirement was stated by this court 30 years ago: 'The theory underlying the requirement of favorable termination is that it tends to indicate the innocence of the accused, and coupled with the other elements of lack of probable cause and malice, establishes the tort, that is, the malicious and unfounded charge * * * against an innocent person. If the accused were actually convicted, the presumption of his guilt or of probable cause for the charge would be so strong as to render wholly improper any action against the instigator of the charge.' (Jaffe v. Stone, Supra, 18 Cal.2d 146, 150, 114 P.2d 335, 338.) Although the original proceeding in Jaffe was criminal, the gist of the statement is equally applicable to cases, like the one at bench, where the main action is civil.

Because of this requirement, it is obvious that a defendant cannot cross-complain or counterclaim for malicious prosecution in the first or main action (Baker v. Littman, Supra, 138 Cal.App.2d 510, 514, 292 P.2d 595; 2 Witkin, Summary of Cal.Law, Torts, § 97, p. 1268), since a claim cannot state a cause of action at that stage of the proceedings. This appears to be the rule, not only in California, but generally. (Luckett v. Cohen (S.D.N.Y.1956) 169 F.Supp. 808, 810; Ivey v. Daus (S.D.N.Y.1955) 17 F.R.D. 319, 323; Alexander v. Petty (1954), 35 Del.Ch. 5, 108 A.2d 575, 577; Niedringhaus v. Zucker (Mo.1948) 208 S.W.2d 211, 212; Manufacturers & Jobbers Finance Corp. v. Lane, Supra, 221 N.C. 189, 19 S.E.2d 849, 852; Prosser on Torts (3d ed. 1964) § 114, p. 873, fn. 32.) One contrary case, Herendeen v. Ley Realty Co. (Sup.Ct.1947) 75 N.Y.S.2d 836, has not been followed, even in New York.

The requirement of a favorable termination of the principal litigation before institution of a malicious prosecution action is supported by conceptual, practical, and policy reasons.

First, there is a certain metaphysical difficulty in permitting a counterclaim for malicious prosecution since theoretically that cause of action does not yet exist. (See fn. 1, Ante.) The principle is well established that the cause of action for malicious prosecution first accrues at the conclusion of the litigation in favor of the party allegedly prosecuted maliciously. (Oppenheimer v. Tamblyn (1958) 162 Cal.App.2d 293, 297, 327 P.2d 574.) A logical corollary of that principle is the rule, long recognized by this court, that the statute of limitations begins to run on the date that the proceedings in the prior action were dismissed or terminated. (Goland v. Peter Nolan & Co. (1934) 2 Cal.2d 96, 98, 38 P.2d 783; Berson v. Ewing, Supra, 84 Cal. 89, 92--93, 23 P. 1112.) Were we to entertain a cross-action for malicious prosecution, we would create the incongruous situation of such an action being filed long before the statute of limitations begins to run.

Second, the requirements of practical judicial administration dictate the retention of the 'favorable termination' rule. It prevents the inconsistent judgments which may result if a malicious prosecution action were permitted to be filed before the conclusion of the principal suit. In such a situation, with two triers of fact operating independently, the plaintiff in the main action may prevail in his claim, yet lose the malicious prosecution suit. Furthermore, the rule tends to eliminate unnecessary litigation, for a defendant who loses in the principal action will not institute a malicious prosecution suit, since the adverse judgment operates to establish conclusively that the plaintiff had probable cause. (Murdock v. Gerth (1944) 65 Cal.App.2d 170, 178, 150 P.2d 489.) Finally, the 'favorable termination' requirement facilitates speedy and orderly trials, because the other elements of the cause of action (malice and lack of probable cause) are substantially easier to determine with the record of the underlying action available as evidence. 3

Third, the rule of favorable termination is supported by strong policy considerations. Since malicious prosecution is a cause of action not favored by the law (Sebastian v. Crowley (1940) 38 Cal.App.2d 194, 202, 101 P.2d 120; Note (1949) 58 Yale L.J. 490, 494), it would be anomalous to sanction a procedural change which not only would encourage more frequent resort to malicious prosecution actions, but would facilitate their use as dilatory and harassing devices. Abolition of the requirement that malicious prosecution suits be filed as separate actions after termination of the main litigation would surely increase the incidence of such suits, since filing a cross-action requires less time, expense, and preparation than does initiation of a separate action. Furthermore, the introduction of evidence on the issues of malice and probable cause may prejudice the trier of fact against the plaintiff's underlying complaint, or enhance the possibility of a compromise verdict. Even if, as here requested, consideration of those issues is deferred until the principal action has been completed, an outcome of that trial adverse to the plaintiff may unduly enhance the defendant's chances in his malicious prosecution action. Finally, as was the case here, the plaintiff and his attorney may be joined as cross-defendants in the malicious prosecution suit. This not only places the attorney in a potentially adverse relation to his client, but may well necessitate the hiring of separate counsel to pursue the original claim. (See Note, Supra, 58 Yale L.J. 490, 493 and fn. 13.) The additional risk and expense 4 thus potentially entailed may deter poor plaintiffs from asserting bona fide claims.

We can conceive of no reason why the simple and--one would have thought--transparent expedient of casting the cross-complaint in the form of a request for declaratory relief should make any difference. Certainly most, if not all, of the problems outlined above would remain. The identical issues of malice and probable cause would, of necessity, be litigated, and their inclusion, even by indirect reference, as part of the trial of the cause of action for malpractice would involve a substantial risk of confusing or even influencing a jury.

Nor is there any particular need to employ the declaratory judgment procedure in this situation. The purpose of a judicial declaration of rights in advance of an actual tortious incident is to enable the parties to shape their conduct so as to avoid a breach. '(D)eclaratory procedure operates prospectively, and not merely for the redress of past wrongs. It serves to set controversies at rest before they lead to repudiation of obligations, invasion of rights or commission of wrongs; in short, the remedy is to be used in the interests of preventive justice, to declare rights rather than execute them.' (Travers v. Louden (1967) 254 Cal.App.2d 926, 931, 62 Cal.Rptr. 654, 658; see Bachis v. State Farm Mutual Auto. Ins. Co. (1968) 265 Cal.App.2d 722, 727--728, 71 Cal.Rptr. 486.) No such preventive benefit is possible here.

Dr. Huntington urges, however, that we should follow the example of indemnity cases, where we permit a defendant to file a cross-complaint seeking declaration of his right to indemnity from third persons as part of the very suit in which his own liability is...

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