Jenkins v. Pope

• Decision Date: 14 February 1990
• Docket Number: No. A042267,A042267
• Citation: 266 Cal.Rptr. 557,217 Cal.App.3d 1292
• Court: California Court of Appeals Court of Appeals
• Parties: David JENKINS, Cross-Complainant and Appellant, v. Jaquelynn Constance POPE, et al., Cross-Defendants and Respondents.

Page 557

266 Cal.Rptr. 557

217 Cal.App.3d 1292

David JENKINS, Cross-Complainant and Appellant, v. Jaquelynn Constance POPE, et al., Cross-Defendants and Respondents.

No. A042267.

Court of Appeal, First District, Division 2, California.

Feb. 14, 1990.

Certified For Partial Publication ^*

Harold A. Stone and Marilyn D. Steen, Gudmundson, Siggins, Stone & Skinner, San Francisco, for respondent, Pope.

Raymond N. Erlach, Erlach & Erlach, San Francisco, for appellant, Jenkins.

Guy Allan Wilson, San Francisco, for respondents, Worthington.

KLINE, Presiding Justice.

This is an appeal from the dismissal of a cross-complaint alleging malicious prosecution, defamation, abuse of process, breach of fiduciary duty and attorney malpractice. Respondents' demurrers to the cross-complaint were sustained without leave to amend for failure to state a cause of action. Appellant contends that the cross-complaint for malicious prosecution was proper in the circumstances of this case and that the other causes of action raised by the cross-complaint were not barred either by the statute of limitations or by the statutory privilege for publications in judicial proceedings.

STATEMENT OF THE CASE AND FACTS

This action arose out of the breakdown of an attorney-client relationship between appellant Jenkins, the client, and respondent Pope, the attorney. According to appellant's cross-complaint, appellant terminated Pope's representation in July 1984, having lost confidence in her after a real estate deal in which the commission would have gone to her male companion and roommate, who was not a licensed real estate broker. A dispute arose regarding fees Pope claimed she was owed and representations Pope claimed appellant had made regarding the scope of her employment.

On August 9, 1985, Pope filed a complaint against appellant. The complaint contained four causes of action. The first, for quantum meruit, sought to recover $50,062.63, for expenses incurred and legal services rendered at appellant's request during the preceding two years. The second, for promissory estoppel, alleged that appellant had assured Pope she would be involved, and paid for her involvement, in many projects which appellant would be pursuing individually and through Fun Productions, Inc., of which he was the director and sole shareholder, especially the development of film projects; that Pope relied upon these promises by making her time completely available to appellant, not developing her law practice or seeking work commitments, and spending uncompensated time preparing for the new position; and that appellant failed to perform these promises. The third cause of action, for negligent misrepresentation, was based on similar representations, including specific representations that appellant would pay Pope for developing film projects which the two had discussed, and alleged that these representations were made with no reasonable ground for believing them to be true in that appellant was not in fact committed to the represented course. The last cause of action, for fraud, was based on the same representations but alleged that appellant knew them to be false and made them with the intent to defraud and deceive Pope.

On December 31, 1986, Pope filed her First Amended Complaint. This complaint contained the original causes of action for quantum meruit, promissory estoppel and negligent misrepresentation and new causes of action for negligent and intentional emotional distress. The fraud cause of action in the original complaint was deleted from the amended complaint.

On October 1, 1987, appellant moved to compel Pope's deposition, which had been adjourned on January 22, 1986 and scheduled to resume on September 22, 1987. In opposing the motion, Pope's attorney submitted a declaration asserting that the parties had entered into settlement negotiations several months after the original deposition and had not rescheduled the deposition because it appeared the case would settle. According to this declaration, the parties had agreed upon a sum for settlement and worked out minor wording changes orally. The agreement had been reached with one of appellant's two attorneys, Lima, who withdrew from the case on September 28, 1987; the other attorney Erlach, refused to acknowledge the settlement. On November 12, 1987, the court compelled the deposition and awarded $364 against Pope and her attorneys.

Also on November 12, appellant filed his answer and cross-complaint for defamation, abuse of process, malicious prosecution, breach of duty and malpractice. The cross-complaint named as defendants Pope; the attorney who filed the original complaint, Sargetis; and the attorneys who filed the amended complaint, respondents William F. Worthington, Jr. and Worthington & Worthington. ¹

By way of background, the cross-complaint alleged that the fees Pope sought after her termination were excessive and outrageous; that the cross-defendants attempted to obtain money from appellant by threatening unwarranted legal action based on "misrepresentations" which in fact never occurred; that their demands were based on alleged contracts which were unenforceable and obtained by undue influence and inadequate consideration; that Pope never advised appellant to seek independent advice before entering the contract or of the risks to appellant, Pope's conflict of interest, and appellant's right to terminate the contract; that the cross-defendants conspired to obtain money from appellant by publishing false accusations of fraud against him; that the original complaint was intentionally drafted to include false allegations of fraud, which were published when the complaint was filed; that a copy of the false complaint was mailed to appellant's family's address in Florida with the knowledge that appellant was especially vulnerable to allegations of wrongdoing published to his family; that the cross-defendants republished the defamatory statements to numerous other persons; that the amended complaint intentionally deleted the fraud cause of action and that appellant had prevailed on that cause of action; and that Pope and her attorneys had maliciously accused appellant of fraud in order to damage his reputation and obtain money from him, despite Pope's duty to protect appellant, and had sued him in his individual capacity for harassment.

The cross-complaint's first cause of action alleged that the filing of the original complaint published false and defamatory statements about appellant which bore no reasonable relation to the action; the second alleged that the mailing of the complaint to Florida republished the defamatory material to appellant's family and friends, again with no reasonable relation to the action; the third alleged that the cross-defendants had engaged in a conspiracy to defame appellant; the fourth alleged that the mailing of the complaint to Florida under the guise of attempting to serve appellant with an arbitration notice was an abuse of process; the fifth alleged that the actions complained of were taken with the intent of causing appellant humiliation and emotional distress; the sixth alleged that the cross-defendants had breached a fiduciary duty which survived termination of the Respondents demurred to the cross-complaint on the ground that it did not state facts sufficient to constitute a cause of action in that the alleged acts were protected by the statutory privilege for statements made in judicial proceedings (Civ.Code § 47(2)) and barred by the statute of limitations; as to some causes of action, the demurrers were also on grounds of uncertainty. (Code Civ.Proc., § 430.10, subds. (e), (f).) On March 11, 1988, the trial court sustained the demurrers without leave to amend for failure to state a cause of action. At the hearing, appellant's attorney sought clarification whether the ruling with respect to the cause of action for malicious prosecution was that the cause of action was barred by the statute of limitations or that it could not be brought in the main action. The court stated: "The clarification is in my view you cannot state a cause of action for malicious prosecution based on an amended complaint that drops a cause of action."

attorney-client relationship; the seventh alleged that the action against appellant had been instituted without probable cause and with malice, and that the fraud cause of action had been terminated in appellant's favor; and the eighth alleged that Pope had breached a duty to warn and protect appellant regarding various aspects of the alleged oral contract. In all but the fifth cause of action appellant claimed damage to his health and reputation and financial damages; in the fifth cause of action he claimed to have suffered humiliation, embarrassment, mental anguish and emotional distress.

The judgment sustaining the demurrers and dismissing the cross-complaint was filed on March 11, 1988. Appellant's notice of appeal was timely filed on May 9, 1988.

DISCUSSION

I. The Demurrer to the Cause of Action for Malicious Prosecution was Properly Sustained

Appellant contends that the cross-complaint stated facts sufficient to state a cause of action for malicious prosecution. "To establish a cause of action for malicious prosecution of a civil proceeding, a plaintiff must plead and prove that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, the plaintiff's, favor [citations]; (2) was brought without probable cause [citations]; and (3) was initiated with malice [citations]." (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50, 118 Cal.Rptr. 184, 529 P.2d 608; Freidberg v. Cox (1987) 197 Cal.App.3d 381, 384, 242 Cal.Rptr. 851.) Appellant's cross-complaint fails to meet the first of these requirements, since the "prior action" had not been terminated at all.

In Babb v. Superior Court (1971) 3 Cal.3d 841, 92 Cal.Rptr. 179, 479 P.2d 379, the defendant in...