Bob Baker Enterprises, Inc. v. Chrysler Corp.

• Decision Date: 30 November 1994
• Docket Number: No. D018205,D018205
• Citation: 36 Cal.Rptr.2d 12,30 Cal.App.4th 678
• Court: California Court of Appeals Court of Appeals
• Parties: BOB BAKER ENTERPRISES, INC., et al., Plaintiffs, Respondents and Cross-Appellant, v. CHRYSLER CORPORATION, et al., Defendants, Appellants and Cross-Respondents.

Page 12

36 Cal.Rptr.2d 12

30 Cal.App.4th 678

BOB BAKER ENTERPRISES, INC., et al., Plaintiffs, Respondents and Cross-Appellant, v. CHRYSLER CORPORATION, et al., Defendants, Appellants and Cross-Respondents.

No. D018205.

Court of Appeal, Fourth District, Division 1, California.

Nov. 30, 1994.

Solomon, Ward, Seidenwurm & Smith, Murray M. Bankhead, San Diego, Baker & Hostetler, Franklin H. Wilson, Ralph Zarefsky and Fredric S. Abrolat, Los Angeles, for defendants, appellants and cross-respondents.

James S. Marinos and Benjamin R. Seecof, San Diego, for plaintiffs, respondents and cross-appellant.

BENKE, Associate Justice.

Once again we return to the dispute between Bob Baker, a local automobile dealer, and Chrysler Corporation. Our review of our own records discloses that no less than 14 appeals and writ petitions have been filed in this court with respect to Baker's attempt to sell both Ford and Chrysler products from the same location and Chrysler's attempt to open a competing dealership. ¹

Mercifully, on this appeal we are well past determining the merits of the parties' underlying disputes and are only asked to resolve whether Baker may pursue a claim against Chrysler for malicious prosecution. As we explain, the malicious prosecution action is barred by the statute of limitations. Accordingly, it should have been dismissed with prejudice.

PROCEDURAL HISTORY

A. Underlying Litigation

The parties dispute began in 1983 when, among other items of relief, plaintiff, and respondent Robert H. Baker sued defendant, appellant and cross-respondent Chrysler Corporation (Chrysler) for damages. Four years into the dispute Chrysler decided to sue Baker for damages. Chrysler did so in a new lawsuit, superior court case No. 591583 (591583).

In 591583 Chrysler alleged Baker had wrongfully prevented it from opening the competing dealership in the Kearny Mesa area of San Diego. Chrysler alleged Baker was guilty of restraint of trade, abuse of process and other wrongs. In addition to Baker, Chrysler also named plaintiff and cross-appellant Bob Baker Enterprises, Inc. (BBE), as a defendant. Chrysler made identical claims by way of a cross-complaint in Baker's pending action against Chrysler, superior court case No. 517594 (517594). The trial court consolidated 591583 with 517594. Other than as a defendant named by Chrysler, BBE was not a party to any of the other disputes being litigated in 517594.

Baker and BBE demurred to Chrysler's complaint and cross-complaint on the ground that all of the alleged conduct was protected by the litigation privilege set forth in Civil Code section 47, subdivision (b)(2). The trial court sustained the demurrer without leave to amend and dismissed Chrysler's claims against Baker and BBE. The trial court's dismissal was filed on March 22, 1989.

Chrysler filed a notice of appeal from the dismissal on April 21, 1989. Following briefing by the parties, we issued an opinion on the merits and affirmed the dismissal. (Feb. 22, 1991, D010059, unpub. opn.) Our remittitur issued on June 6, 1991.

What remained of 517594 went to trial in early 1992 and judgment in that case was entered on February 27, 1992. Although Baker did not receive any award in 517594, his dealership, University-Chrysler Plymouth, Inc., was awarded substantial damages.

B. These Proceedings

On May 28, 1992, Baker and BBE commenced the instant malicious prosecution action. They alleged Chrysler's damage claims had been terminated in their favor and Chrysler had pursued the claims without probable cause. ²

Chrysler demurred to the complaint on the grounds it was barred by the statute of limitations. Chrysler argued the statute of limitations began running when its damage claims were dismissed by the trial court on March 22, 1989. According to Chrysler, the statute of limitations was tolled while Chrysler's appeal was pending but began running again following issuance of our remittitur on June 6, 1991. Under Chrysler's theory the limitations period expired on May 6, 1992, 22 days before Baker and BBE filed their complaint.

Baker and BBE argued the statute of limitations did not begin running until the trial court judgment in 517594 was entered on February 27, 1992. Thus Baker and BBE argued their complaint was timely.

The trial court reached separate conclusions with respect to Baker and BBE. As to Baker the trial court agreed with Baker the statute of limitations did not begin running until entry of the trial court's February 27, 1992, judgment finally disposing of 517594. However, because that judgment was on appeal at the time the trial court ruled on Chrysler's demurrer, the trial court found that as to Baker the malicious prosecution action was premature. Accordingly, the trial court dismissed Baker's claims without prejudice.

As to BBE the trial court agreed with Chrysler and sustained the demurrer without leave to amend and dismissed BBE's claim with prejudice.

Chrysler appealed from the order dismissing Baker's action without prejudice. ³ BBE filed a cross-appeal from the order dismissing its claims with prejudice.

DISCUSSION

A plaintiff has one year from the date of accrual in which to file a malicious prosecution action. (Code Civ.Proc., § 340, subd. (3); Feld v. Western Land & Development Co. (1992) 2 Cal.App.4th 1328, 1334, 4 Cal.Rptr.2d 23 (Feld ).) A cause of action for malicious prosecution accrues "at the time of entry of judgment on the underlying action in the trial court; i.e., at the time of successful termination of the prior proceeding." (3 Witkin, Cal.Procedure, Action, § 400 (3d ed. 1985); see also Gibbs v. Haight, Dickson, Brown & Bonesteel (1986) 183 Cal.App.3d 716, 719, 228 Cal.Rptr. 398.)

We agree with Chrysler that its underlying claims against Baker were terminated by the trial court on March 22, 1989, and that the statute of limitations commenced on that date. In reaching this conclusion we rely upon cases where the finality of trial court judgments was determined in the context of challenges to appellate jurisdiction. We rely upon the jurisdictional cases because, contrary to the suggestion in Baker's brief, a trial court judgment which is final for purposes of appellate jurisdiction is Aside from our unwillingness to adopt a rule which would be out of harmony with existing precedent, we believe reliance on the jurisdictional cases serves two otherwise competing policy considerations. First, we note that malicious prosecution is not a favored cause of action. (Babb v. Superior Court (1971) 3 Cal.3d 841, 847, 92 Cal.Rptr. 179, 479 P.2d 379.) Thus a rule which shortens the time in which a malicious prosecution action must be brought is preferable to one which lengthens the time. On the other hand, as we have noted, a malicious prosecution action may not be initiated unless the underlying case has been terminated in favor of the malicious prosecution plaintiff. The requirement of a favorable termination is needed to avoid "the inconsistent judgments which may result if a malicious prosecution action were permitted to be filed before the conclusion of the principal suit." (Ibid.) By looking to the point when trial court proceedings have been sufficiently complete to permit efficient appellate review, and by recognizing that a claim for malicious prosecution will be stayed during the pendency of any appeal in the underlying lawsuit (see Feld, supra, 2 Cal.App.4th at p. 1336, 4 Cal.Rptr.2d 23), we believe we have identified the earliest point at which there is no risk of inconsistent results.

                final for purposes of bringing a malicious prosecution action.  Although unstated, this proposition was implicitly accepted by this court in Feld, supra, 2 Cal.App.4th 1328, 4 Cal.Rptr.2d 23, and by the courts in Rare Coin Galleries, Inc. v. A-Mark Coin Co., Inc.  (1988) 202 Cal.App.3d 330, 248 Cal.Rptr. 341, and Gibbs v. Haight, Dickson, Brown & Bonesteel, supra, 183 Cal.App.3d 716, 228 Cal.Rptr. 398.   Each of these cases hold that the statute of limitations on a malicious prosecution claim begins to run upon entry of a judgment in the trial court, continues to run until a notice of appeal is filed and is tolled until the conclusion of the [30 Cal.App.4th 684] appellate process, at which time it commences again.  (See Feld, supra, 2 Cal.App.4th at p. 1334, 4 Cal.Rptr.2d 23.)   Implicit in the "start/stop" computation of time adopted by these cases is an understanding that the termination which provides a right of appeal also gives rise to a cause of action for malicious prosecution
                

Here, the order terminating Chrysler's claims was sufficiently independent of Baker's claims against Chrysler to allow entry of a separate appealable judgment on Chrysler's claims against both Baker and BBE. (See Miller v. Silver (1986) 181 Cal.App.3d 652, 658, 226 Cal.Rptr. 479; People ex rel. Dept. of Pub. Wks. v. Clausen (1967) 248 Cal.App.2d 770, 776-778, 57 Cal.Rptr. 227 (Clausen ); People v. Buellton Development Co. (1943) 58 Cal.App.2d 178, 181, 136 P.2d 793 (Buellton ).) In Miller v. Silver a doctor sued his patient for unpaid fees. The patient and her husband filed a cross-complaint for malpractice. The cross-complaint was dismissed on a motion for summary judgment. Both the patient and her husband appealed. In denying a motion to dismiss the appeal, the court stated: "A cross-complaint is sufficiently independent 'to allow a separate final judgment to be entered upon it ... [when the] order on the cross-complaint maybe considered final as to some of the parties.' [Citation.] Moreover, because [the wife's] cause of action for malpractice is inextricably intertwined with her husband's claim for loss of consortium, judicial economy dictates that her appeal as well is properly before us." (Miller v. Silver, supra, 181 Cal.App.3d at p. 658, 226 Cal.Rptr. 479, emphasis added.)

The Clausen and Buellton cases reached similar conclusions. Both Clausen and Buellton were...