Cote v. Henderson

• Decision Date: 09 March 1990
• Docket Number: No. B040281,B040281
• Citation: 218 Cal.App.3d 796,267 Cal.Rptr. 274
• Court: California Court of Appeals Court of Appeals
• Parties: Larry Wayne COTE, Plaintiff and Appellant, v. Vivianna HENDERSON, etc., Defendant and Respondent.

Page 274

267 Cal.Rptr. 274

218 Cal.App.3d 796

Larry Wayne COTE, Plaintiff and Appellant, v. Vivianna HENDERSON, etc., Defendant and Respondent.

No. B040281.

Court of Appeal, Second District, Division 3, California.

March 9, 1990.

LeBell & Silverman, Richard M. LeBell, Beverly Hills and Jay A. Siegel, for plaintiff and appellant

Fred Browne, Los Angeles, and Greg M. Kane, Vista, for defendant and respondent.

DANIELSON, Acting Presiding Justice.

Larry Wayne Cote (plaintiff) appeals from a judgment (order of dismissal) based on the sustaining of a demurrer by Vivianna Henderson (defendant) to the first amended complaint without leave to amend.

We affirm the judgment.

PROCEDURAL AND FACTUAL STATEMENT

On March 24, 1988, plaintiff filed a verified complaint against defendant for malicious prosecution and intentional infliction of emotional distress.

Following a hearing on July 15, 1988, defendant's demurrer to the entire complaint was sustained with leave to amend.

On August 15, 1988, a verified first amended complaint was filed. The first cause of action for intentional infliction of emotional distress alleged:

From December 27, 1985 through June 11, 1987, defendant falsely accused plaintiff of committing criminal acts against her by reporting to the police and to the District Attorney that plaintiff had forced her to engage in non-consensual sexual intercourse, sodomy, and oral copulation. Defendant also falsely denied that plaintiff was the father of her child, claiming, instead, that Walter Fancher, whom she later married, was the father.

The second cause of action for malicious prosecution alleged:

From October 1985 through December 1985 defendant and plaintiff engaged in intimate relations on a regular basis. On December 23, 1985, defendant informed plaintiff her pregnancy test was negative, and the two went out to celebrate that fact that evening. They later returned to plaintiff's residence, and defendant left the following morning.

On or about December 27, 1985, defendant reported to the police that on or about December 23, 1985, plaintiff had imprisoned her and forced her to engage in non-consensual sexual intercourse, sodomy, and oral copulation.

On or about January 9, 1986, the District Attorney filed an eight-count felony complaint (No. A 704515) against plaintiff based on the above false accusations. Plaintiff was then arrested and spent three days in jail.

It was further alleged at paragraph 16 that:

"On or about June 11, 1987, plaintiff reached a favorable termination of the charges against him when, upon motion of the District Attorney, and in the interests of justice, the Court dismissed seven false charges (including rape and sodomy) upon a plea of no contest to Penal Code Section 243.4 (sexual battery). Said plea constituted a favorable termination because (1) plaintiff entered said no contest plea bargain upon stating for the record there was no factual basis for the plea, (2) the Court, District Attorney and defendant ... agreed there would be no sentence other than three years probation (3) the District Attorney admitted that there would be a difficulty in proving the charges and (4) without admitting that plaintiff committed any crime, all remaining charges were dismissed."

On October 24, 1988, defendant filed a request for the trial court to order delivered to it, for the purpose of taking judicial notice, the files in the cases of "Superior Court of Los Angeles County North Valley Branch, (SF) Case Number: A 704515 [and] Superior Court of Los Angeles County North Central Branch (Burbank) Case Number: NC C CF 000186(B)."

On November 15, 1988, defendant filed a demurrer along with a motion to strike the first amended complaint. The demurrer to the cause of action for malicious prosecution was based on the ground, inter alia, that no such cause of action was stated, because plaintiff "was convicted on or about April 27, 1987 by entering a plea of nolo contendere (guilty) to a violation of Penal Code [section] 243.4 [, subdivision] (a) [sexual battery], a felony, a fact demonstrable through judicial notice."

The demurrer to the cause of action for intentional infliction of emotional distress was based on the grounds that (1) "the perpetrator of a felony has no cause of action for distress caused him in defending charges brought upon probable cause. The victim of a crime has an absolute privilege, even the duty to inform the authorities. Likewise, the victim of a rape has no duty to advise the rapist of a subsequent pregnancy"; and (2) "judically [sic ] noticeable facts that [plaintiff] was denied parental rights and that sole legal custody of the child was awarded to defendant operate as a bar to [plaintiff's] attempt to relitigate his parental status or any rights thereunder."

In his opposition filed December 6, 1988, plaintiff took the position, inter alia, that he had stated a cause of action for malicious prosecution, because the first amended complaint alleges "a favorable termination and states therein the reasons why this termination was favorable [at paragraph 16]." Plaintiff also argued that he stated a cause of action for intentional infliction of emotional distress, because seven of the eight criminal charges had been dismissed; there are no facts to show plaintiff was a rapist; and adjudication of parental rights in another action does not bar a cause of action for intentional infliction of emotional distress based on an allegation that defendant caused criminal charges to be filed against plaintiff for the purpose of denying him parental rights.

On December 13, 1988, following a hearing, the court sustained the demurrer to the first amended complaint without leave to amend and placed the motion to strike off calendar. An order of dismissal of the first amended complaint was subsequently filed.

ISSUES PRESENTED

Plaintiff makes three basic assignments of error: (1) the court erred in taking judicial We find no error, and reject plaintiff's contentions.

notice of "allegations, hearsay statements and disputed facts reflected in the exhibits, transcript, and attached reports in the two underlying [c]ourt files ..."; (2) the court erred in concluding no cause of action for malicious prosecution was stated; and (3) the court erred in concluding no cause of action for intentional infliction of emotional distress was stated.

DISCUSSION

I. Matters Judicially Noticed

Plaintiff asserts that it is error for the court to take "judicial notice of the truth of factual matters such as arrest reports, probation and sentencing reports as well as psychiatric reports." (See Ramsden v. Western Union (1977) 71 Cal.App.3d 873, 879, 138 Cal.Rptr. 426.)

We have no quarrel with plaintiff's recitation of law. However, nothing in the record on appeal, which consists of the clerk's transcript only, reflects that the court improperly took judicial notice of anything in the court files in question. As to matters on which the record is silent, all intendments and presumptions are indulged on appeal in favor of the correctness of the trial court's actions. (See, e.g., Denham v. Superior Court (1970) 2 Cal.3d 557, 564, 86 Cal.Rptr. 65, 468 P.2d 193.) Plaintiff has failed to carry his burden of producing a record that would overcome those presumptions, i.e., a record of the oral proceedings on December 13, 1988. (Weiss v. Brentwood Sav. & Loan Assn. (1970) 4 Cal.App.3d 738, 746, 84 Cal.Rptr. 736.) Accordingly, we reject his claim of error.

II. No Cause of Action Stated For Malicious Prosecution

The elements of a cause of action for malicious prosecution are that: (1) the prior action was commenced by or at the direction of the defendant and was pursued to a legal termination in the plaintiff's favor; (2) it was brought without probable cause; and (3) was initiated with malice. (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50, 118 Cal.Rptr. 184, 529 P.2d 608.)

The dispositive issue here is whether the first element has been met, i.e., was the prior action pursued to a legal termination in the plaintiff's favor? We have reviewed the record ¹ and applicable law and we conclude that element has not been met and cannot be met.

"A demurrer lies only for defects appearing on the face of the complaint or from matters of which the court must or may take judicial notice. [Citation.]" (Ramsden v. Western Union, supra, 71 Cal.App.3d at p. 879, 138 Cal.Rptr. 426.) "A court may take judicial notice ... of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments." (Day v. Sharp (1975) 50 Cal.App.3d 904, 914, 123 Cal.Rptr. 918.)

The record contains the following evidence of which this court takes judicial notice (Evid.Code, § 459):

On January 9, 1985, a nine-count felony complaint was filed by the District Attorney charging plaintiff with three violations of PENAL CODE SECTION 289², subdivision (a) (sexual penetration by a foreign object by force); one violation of section 288a, subdivision (c) (oral copulation); one violation of section 286, subdivision (c) (sodomy by force); two violations of section 261, subdivision (2) (forcible rape); one violation of section 236 (false imprisonment); and one violation of section 243.4 (sexual battery).

On May 12, 1986, at the conclusion of the arraignment hearing, the magistrate found there was sufficient cause to believe plaintiff committed the violations alleged above Later that date, an eight-count information was filed against plaintiff in which he was charged with the above violations, except the one in count III of the complaint.

except for the violation of section 289, subdivision (a) alleged in count III.

On April 27, 1987, plaintiff pleaded nolo contendere to the violation of section 243.4, subdivision (a) (sexual battery) charged in count VIII of the information. The remaining counts were dismissed in the furtherance of justice on the People's motion.

On June 11, 1987, the...