Eells v. Rosenblum
Decision Date | 25 July 1995 |
Docket Number | No. B087834,B087834 |
Citation | 36 Cal.App.4th 1848,43 Cal.Rptr.2d 323 |
Court | California Court of Appeals Court of Appeals |
Parties | , 95 Cal. Daily Op. Serv. 5849, 95 Daily Journal D.A.R. 9935 Thomas M. EELLS, Plaintiff and Appellant, v. Seymour ROSENBLUM et al., Defendants and Respondents. |
Larry E. Wasserman in pro. per. and for defendants and respondents.
This action for malicious prosecution, abuse of process and intentional infliction of emotional distress had its genesis more than 15 years ago. It is the fourth in a series of related lawsuits. Appellant Thomas M. Eells appeals from a judgment of dismissal entered
upon the sustaining of a demurrer without leave to amend in favor of respondents Seymour Rosenblum, 1 Crest Auto Insurance Brokers and Attorney Larry E. Wasserman. In the published portion of this opinion, we conclude the underlying lawsuit was not favorably terminated on the merits. In the unpublished portion of this opinion, we conclude causes of action for intentional infliction of emotional distress and abuse of process cannot be stated. We affirm.
In 1979, Ira Washington was involved in a motor vehicle accident. When Washington's insurer failed to pay for the repairs to his car, the repair shop obtained a small claims judgment against Washington. Washington, represented by Attorney Wasserman, then sued the insurer and appellant, an independent claims adjuster, for bad faith insurance practices. The insurer cross-complained against appellant for indemnity. Washington settled with the insurer; judgment on the cross-complaint was entered in favor of the insurer against appellant in the amount of $11,500. This judgment was affirmed on appeal.
Appellant sued Washington, Crest Auto (the insurance broker), Rosenblum (the president of Crest Auto), an employee of Crest Auto and Attorney Wasserman and the law firm which employed him, alleging they had conspired to create Washington's bad faith insurance action against him (Case No. 1). Washington and Attorney Wasserman and his law firm moved for summary judgment. The motion was granted and the resulting judgment was affirmed on appeal. The matter proceeded to trial against Crest Auto, Rosenblum and the Crest Auto employee. A nonsuit was granted as to each cause of action, except the breach of contract cause of action against Crest Auto. The jury awarded $75,000 to appellant against Crest Auto. The trial court granted Crest Auto's motion for judgment notwithstanding the verdict. Appellant appealed. Before the record could be prepared, the court reporter died and the trial judge retired; hence no record on appeal could be produced. Accordingly, the appellate court remanded the matter for a new trial. Upon remand, Attorney Wasserman's motion for summary judgment on behalf of Crest Auto, Rosenblum and the Crest Auto employee was granted. Judgment against appellant was entered on September 15, 1993. Appellant appealed from the judgment. 2
Appellant filed the instant action against respondents. Appellant alleged causes of action for malicious prosecution, abuse of process and intentional infliction of emotional distress. As to the malicious prosecution cause of action, appellant alleged the voluntary dismissal without prejudice of Case No. 3 constituted a termination in his favor on the merits. Appellant asserted Case No. 3 had been filed prematurely because the appeal from Case No. 2 had still been pending. Appellant alleged prematurity was not a technical defect, and thus, the case had been dismissed on substantive, not procedural, grounds. He further alleged that the dismissal of the action had been an acknowledgment that respondents could not succeed on the merits. Appellant attached to his complaint Attorney Wasserman's April 18, 1994 letter. 5
Respondents filed a demurrer, along with a request that the trial court take judicial notice of documents from Cases No. 2 and No. 3. 6 Respondents argued the malicious prosecution cause of action could not be maintained because the termination of Case No. 3 had not been on the merits.
The trial court sustained the demurrer without leave to amend. On the cause of action for malicious prosecution, the trial court concluded Case No. 3 had not terminated in appellant's favor because it had been voluntarily dismissed upon a technical defect.
Appellant appeals.
" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.) "Both trial and appellate courts may properly take judicial notice of a party's earlier pleadings and positions as well as established facts from both the same case and other cases." (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 877, 6 Cal.Rptr.2d 151, italics omitted.) (Blank v. Kirwan, supra, 39 Cal.3d at p. 318, 216 Cal.Rptr. 718, 703 P.2d 58.)
The key is whether the termination reflects on the underlying defendant's innocence. (Lackner v. LaCroix, supra, 25 Cal.3d at p. 750, 159 Cal.Rptr. 693, 602 P.2d 393; Jaffe v. Stone (1941) 18 Cal.2d 146, 150, ...
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