Baker v. Littman
| Decision Date | 17 January 1956 |
| Citation | 292 P.2d 595,138 Cal.App.2d 510 |
| Court | California Court of Appeals Court of Appeals |
| Parties | N. Meyer BAKER, Plaintiff, Cross-Defendant and Respondent, v. Alfred L. LITTMAN, Jane Doe Littman, husband and wife, Harry M. Umann, Jane Doe Umann, husband and wife, Defendants, Cross-Complainants and Appellants. Civ. 21224. |
Bertram S. Harris, Los Angeles, for appellants.
F. J. Finucane, Los Angeles, for respondent.
Respondent filed an action in the municipal court of Los Angeles for the recovery of $1,024.53, alleged to be the reasonable value of legal services rendered at the request of defendants, who are the appellants herein. The defendants named are Alfred Littman, Harry Umann, and their respective spouses. After answering, each defendant individually filed a cross-complaint in excess of the jurisdiction of the municipal court had the cause was transferred to the superior court. Respondent filed a special demurrer to, and motion to strike, the cross-complaint of Alfred Littman. General demurrers and motions to strike were interposed to the cross-complaints of Mr. and Mrs. Umann and Mrs. Each of the demurrers was sustained without leave to amend and the motions to strike were ordered off calendar.
These appeals, prosecuted by the defendants and cross- complainants, are from the several judgments dismissing each of the cross actions.
The cross-complaint of Alfred Littman purports to state four causes of action. In the opening count, Alfred alleges that he and his five brothers and sisters are 'residual beneficiaries' of a testamentary trust established in Washington, D. C., under the will of Elihu Horn; that respondent represented to him that he was the attorney for said brothers and sisters and had their consent to initiate legal proceedings against the life tenant and trustees of the trust estate; that based on this representation by respondent and the latter's solicitation of him to become a party plaintiff to such proceedings with his brothers and sisters, he authorized his name to be added as a plaintiff with the others; that the above representations were entirely false; that despite respondent's lack of authority from said brothers and sisters, respondent nevertheless prepared a lawsuit in which Alfred and his brothers and sisters were named as plaintiffs; that when Alfred learned of the fraud perpetrated upon him, he withdrew his consent to become a party plaintiff or to have any action instituted in his behalf; that respondent never instituted any legal proceedings on behalf of any of the residual beneficiaries; that Alfred never retained respondent's services; that respondent's services, if any, were retained by others and respondent knew that Alfred would never be called upon to pay for such services; that prior to the filing of respondent's suit against him, Alfred was a successful business man with a high credit standing in the community; that respondent instituted the within legal proceedings against him for the value of services rendered maliciously and with intent to harass him, and for purposes of coercing a settlement; and that as a direct result of respondent's conduct his business reputation and credit standing in the community were damaged in the sum of $50,000. Count III realleges the above facts and asserts as a direct result of defendant's conduct he was damaged in the sum of $500, which he was compelled to expend to overcome and defend the action fraudulently instituted by respondent.
Count II of Alfred's cross-complaint realleges the above facts and further alleges that as a direct of respondent's conduct he 'was compelled to expend large sums of money in protecting his equity in the said trust estate as a residual beneficiary,' to his damage in the sum of $35,000. After realleging the above facts in Count IV, Alfred alleges that as the result of respondent's conduct, his 'share in the Elihu Horn Estate has diminished in value, the exact amount at this time being unknown.'
The cross-complaint of defendant Harry Umann comprises two counts. Umann alleges that he is an attorney at law and that during the times stated in respondent's complaint defendant Alfred Littman was one of his clients; that Alfred Littman had consulted on matters connected with the trust estate with respondent, who was at that time attorney for Alfred'd brother, Bernard, who was also a residual beneficiary; that this occurred long before Umann was consulted by Alfred Littman with respect to said trust estate; that respondent knew that Umann was merely Alfred's local attorney and was at all times acting as an agent for a disclosed principal; that prior to the filing of respondent's complaint against him he had an excellent professional reputation and a high credit rating in the community; that respondent instituted legal proceedings against him for money claimed due him for services rendered maliciously and with intent to harass him for the purposes of coercing a settlement of said claim; and that as a direct result of respondent's conduct he was injured in his professional reputation and credit standing in the sum of $50,000. Umann's second count realleges the above facts and further alleges $500 damages, the sum he was compelled to expend 'to overcome and defend the action instituted fraudulently' by respondent.
The cross-complaints of Mrs. Littman and Mrs. Umann each contain three counts and are substantially similar. Count I alleges that each defendant was sued only because they were the respective wives of defendants Littman and Umann; that they never met respondent or authorized the procurement of his legal services; that the legal proceedings against them were maliciously instituted by defendant with the intent to harass them and force a settlement of his claim for services; and that they became ill and nervous as a result, to their damage in the amount of $10,000. Count II realleges the allegations of the malicious institution of respondent's action, and alleges damages in the amount of $500 expended 'to overcome and defend that action instituted fraudulently' by respondent. Count III alleges that as the result of respondent's malicious institution of his action against them, their reputation and credit standing in the community have been destroyed, to their damage of $10,000. Cross-complaint of Mr. & Mrs. Umann and Mrs. Littman.
Directing attention first to the cross-complaints of Mr. and Mrs. Umann and Mrs. Littman, it is patent that the general demurrers were correctly sustained without leave to amend. The gist of these pleadings consists of the attempt to state a cause of action based on malicious prosecution of an ordinary civil action and to recover thereunder damages for injury to business reputation and credit standing, expenses incurred in defending the suit and, in the case of Mrs. Littman and Mrs. Umann, for illness and mental suffering. It is hornbook law that one of the essential elements of such a cause of action is that the prior litigation complained of shall have terminated in favor of the defendant therein, where, as here, the action upon which it is grounded is an ordinary civil action in which no process other than summons was issued. Metzenbaum v. Metzenbaum, 121 Cal.App.2d 64, 68, 262 P.2d 596; Barrier v. Alexander, 100 Cal.App.2d 497, 501, 224 P.2d 436; Schwartz v. Schwartz, 25 Cal.App.2d 303, 304, 77 P.2d 260; Prosser on Torts, 2d Ed. 1955, pp. 644-665. No such allegation is made, nor can the cross-complaint be amended to state such fact, since the malicious prosecution alleged stems from the filing of the original complaint in the action before the court and there has obviously been no termination whatsoever of that action. The facts of the present case falling within the rule above stated, the orders sustaining the demurrers without leave to amend were properly made. 1
It is contended that if not valid as cross-complaints, the cross actions should have been considered by the court as counterclaims. Under the requirements of section 438, Code of Civil Procedure, a counterclaim may not be set up unless it constitutes an existing cause of action, the test being whether the defendant is able to maintain an independent action on the demand asserted as a counterclaim. Cuneo v. Lawson, 203 Cal. 190, 196, 263 P. 530; McClendon v. Heisinger, 42 Cal.App. 780, 783, 184 P. 52. Appellants' argument is thus without merit because no cause of action for malicious prosecution based on the filing of respondent's action then existed,...
To continue reading
Request your trial
-
Legg v. Ford
...of San Diego v. Utt, 173 Cal. 554, 561, 160 P. 657; Swasey v. de L'Etanche, 17 Cal.App.2d 713, 719, 62 P.2d 753; Baker v. Littman, 138 Cal.App.2d 510, 516-517, 292 P.2d 595; Baker v. Littman, 155 Cal.App.2d 829, 832-833, 318 P.2d 514; Hill v. Wrather, 158 Cal.App.2d 818, 825, 323 P.2d 567; ......
-
First Bank (N.A.)-Billings v. Clark
...asserted by way of a cross complaint or counterclaim in the original proceeding. McGuire, 603 P.2d at 255, citing Baker v. Littman (1956), 138 Cal.App.2d 510, 292 P.2d 595. Yet, the defendant attempted to do just that in this case. Defendant's assertion, that he was entitled to jury instruc......
-
Wood v. DeLuca
...on such new cause has run. We think what is meant by that is sufficiently clarified by the authorities above quoted. Baker v. Littman, 138 Cal.App.2d 510, 292 P.2d 595, involved a chanege from the tort of malicious prosecution to breach of contract; Lewis v. South S. F. Yellow Cab Co., 93 C......
-
Babb v. Superior Court
...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 th......