Lackner v. LaCroix

• Decision Date: 30 January 1979
• Citation: 152 Cal.Rptr. 221,88 Cal.App.3d 948
• Parties: Jerome LACKNER, Plaintiff and Appellant, v. Edward LaCROIX et al., Defendants and Respondents. Civ. 41630.
• Court: California Court of Appeals Court of Appeals

Page 221

152 Cal.Rptr. 221

88 Cal.App.3d 948

Jerome LACKNER, Plaintiff and Appellant, v. Edward LaCROIX et al., Defendants and Respondents.

Civ. 41630.

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

Jan. 30, 1979.

For Opinion on Hearing, see 159 Cal.Rptr. 693, 602 P.2d 393.

Betty Aronow, San Jose, for plaintiff and appellant.

Ropers, Majeski, Kohn, Bentley & Wagner, Michael J. Brady, Redwood City, for defendants and respondents.

WHITE, Presiding Justice.

Appellant appeals from a judgment of dismissal after the trial court granted respondents' motion for partial summary judgment in an action for malicious prosecution. ¹ Appellant also seeks review of the trial court's denial of his motion for partial summary judgment on the issue of respondents' lack of probable cause to institute and file a malpractice action.

We reverse the judgment; the requirement that a plaintiff in a malicious prosecution action must have received a legal determination in his favor in the underlying proceeding does not mean that a legal determination in his favor On the merits was necessary.

Accordingly, appellant could predicate a malicious prosecution suit on a legal determination in his favor by a jury verdict terminating the prior malpractice action as barred by the statute of limitations.

"To establish a cause of action for the 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, plaintiff's favor (Babb v. Superior Court (1971) 3 Cal.3d 841, 845, 92 Cal.Rptr. 179, 479 P.2d 379; White Lighting Co. v. Wolfson (1968) 68 Cal.2d 336, 349, 66 Cal.Rptr. 697, 438 P.2d 345; Hurgren v. Union Mutual Life Ins. Co. (1904) 141 Cal. 585, 587, 75 P. 168); (2) was brought without probable cause (Grant v. Moore (1866) 29 Cal. 644, 648; Masterson v. Pig'n Whistle Corp. (1958) 161 Cal.App.2d 323, 335, 326 P.2d 918; Metzenbaum v. Metzenbaum (1953) 121 Cal.App.2d 64, 68, 262 P.2d 596); and (3) was initiated with malice (Albertson v. Raboff (1956) 46 Cal.2d 375, 383, 295 P.2d 405; Baker v. Gawthorne (1947) 82 Cal.App.2d 496, 498, 186 P.2d 981). (See generally 4 Witkin, Summary of Cal.Law (8th ed.) Torts, § 255, pp. 2531-2532; Prosser, Law of Torts 4th ed. (1971) § 120, pp. 850-856; 1 Harper & James, The Law of Torts (1956) § 4.8.)" (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50, 118 Cal.Rptr. 184, 189, 529 P.2d 608, 613.)

The trial court's order granting defendants' motion for summary judgment on the grounds that the jury verdict in the medical malpractice action did not constitute a "favorable termination" concludes as follows: "Jaffe was cited and followed in De La Riva v. Owl Drug Co., 253 C(al.)A(pp.)2d 593 (1967), MacDonald v. Joslyn, 275 C(al.)A(pp.)2d 282 (1969), and Rich v. Siegel, 7 C(al.)A(pp.)3rd 465 (1970).

"Jaffe was also cited and quoted in Babb v. Superior Court, 3 C(al.)3rd 841, (92 Cal.Rptr. 179, 479 P.2d 379) (1971) where the decision noted that: 'Although the original proceeding in Jaffe was criminal, the Gist of the statement is equally applicable to cases, like the one at bench, where the main action is civil.' (3 C(al.)3rd at 846, 92 Cal.Rptr. 179, 479 P.2d 379) (Emphasis added.)

"In the original malpractice action involved here, the jury found in favor of Lackner, defendant therein, on the grounds that the malpractice action was barred by the statute of limitations. This was clearly procedural and not inconsistent with the existence of malpractice. Accordingly it was not a 'favorable termination' under Jaffe.

"Since favorable termination is one of the elements which must be established in an action for malicious prosecution, summary judgment on that issue in favor of defendants La Croix and Schumb necessarily results in judgment for said defendants in the entire action."

The reference to "Jaffe," of course, is to the leading case of Jaffe v. Stone (1941) 18 Cal.2d 146, 114 P.2d 335, which the trial court briefed and analyzed in accurate detail in its order granting respondents' motion. Naturally respondents herein rely upon Jaffe v. Stone.

However, in our view, this reliance is misplaced and the trial court's ruling is erroneous. It is certainly true, as pointed out by the trial court's order, that Chief Justice Gibson's opinion in Jaffe, at page 150, 114 P.2d at page 338, explaining the theory underlying a determination whether the prior complained of action resulted in a "favorable termination" enunciated an "inconsistent with guilt" test. We quote: "It is not enough, however, merely to show that the proceeding was dismissed. The theory underlying the requirement of favorable termination is that it tends to indicate the innocence of the accused, and coupled with the other elements of lack of probable cause and malice, establishes the tort, that is, the malicious and unfounded charge of crime against an innocent person. If the accused were actually convicted, the presumption of his guilt or of probable cause for the charge would be so strong as to render wholly improper any action against the instigator of the charge. The thought has also been expressed that the tort action under such circumstances would involve a collateral attack on the criminal judgment. Hence, if the criminal proceeding goes to trial, it is ordinarily necessary, as a foundation for a malicious prosecution suit, that the plaintiff should have been acquitted. (See generally, Prosser on Torts, p. 867; Harper on Torts, p. 584.) The same fundamental theory is applied in testing a dismissal or other termination without a complete trial on the merits. If it is of such a nature as to indicate the innocence of the accused, it is a favorable termination sufficient to satisfy the requirement. If, however, the dismissal is on technical grounds, for procedural reasons, or for any other reason not inconsistent with his guilt, it does not constitute a favorable termination." (Emphasis added.)

Understandably, the trial court obviously reasoned that Justice Sullivan's "gist" statement in Babb v. Superior Court (1971) 3 Cal.3d 841, 92 Cal.Rptr. 179, 479 P.2d 379, compelled application of the Jaffe "inconsistent with guilt" test to appellant's cause. However, Babb did not address "favorable termination" in the factual context of a prior action barred by statute of limitations. Babb sought by way of cross-complaint a declaratory judgment that a civil action was being prosecuted maliciously. Babb holds only that "For conceptual, practical, and policy reasons, the plaintiff in a malicious prosecution action must plead and prove that the prior judicial proceeding of which he complains, whether civil or criminal, Terminated in his favor; thus, a defendant cannot Cross-complain or Counterclaim for malicious prosecution in the first action." (Babb v. Superior Court, supra, at p. 842, 92 Cal.Rptr. 179, 479 P.2d 379, emphasis added.)

We conclude that the "inconsistent with guilt" rationale of Jaffe v. Stone, supra, is best limited in its application to the context in which it was stated, i. e., where the underlying action was a criminal prosecution. The case at bench serves to illustrate that when the prior action is a civil proceeding, the rationale of Jaffe is likely to misdirect in deciding the issue of "favorable determination." For example, respondents' brief contends that because the determination herein was based upon the statute of limitations, "(t)he jury did not pass upon the merits of the allegations of negligence and malpractice brought against Dr. Lackner." Further, they argue that because the prior determination "in no way casts any light upon the innocence or nonliability of Dr. Lackner," the determination was "technical" and "procedural" and therefore not a "favorable termination." While Jaffe may reasonably be read as requiring a determination on the merits under the facts here, there is no such requirement when the initial action is a civil proceeding. We quote the test writers: "To maintain an action for malicious prosecution based on a wrongful civil suit, it is not necessary that all proceedings that may be had or required in an action finally to work out or enforce the rights of the parties shall occur before a cause of action will accrue to the defendant therein. It is sufficient for the issues material to the question of the good faith of the suit to be tried and closed by final judgment. In other words, it is not essential for the civil suit to have been disposed of on the merits; it is sufficient to show that the particular action complained of is at an end and that it terminated favorably to the plaintiff in the action for malicious prosecution. ⁵ The requirement of termination may be satisfied by showing, for instance, that the suit in question was abandoned or dismissed. And the criterion by which to determine which party was successful in the former action is the decree itself in that action. The court in the action for malicious prosecution will not make a separate investigation and retry each separate allegation without reference to the result of the previous suit as a whole, or decide upon the possible effect of matters not passed upon in the original suit." (52 Am.Jur.2d, Malicious Prosecution, § 42, pp. 210-211, emphasis added.)

In Hurgren v. Union Mutual Life Ins. Co. (1904) 141 Cal. 585, 75 P. 168, a plaintiff brought a malicious prosecution action against a defendant who had initiated three civil suits against him. The suits had been dismissed, twice at the instigation of the defendant (plaintiff in those actions), once because that defendant failed to appear.

The court below granted the defendant in the malicious prosecution case a nonsuit on the ground that it had not been shown that the former suits terminated on the merits in favor of the plaintiff (defendant in those suits).

On appeal the court reversed, holding a final termination on the merits...