Lackner v. Lacroix

• Decision Date: 27 November 1979
• Docket Number: S.F. 24007
• Citation: 25 Cal.3d 747,159 Cal.Rptr. 693,602 P.2d 393
• Court: California Supreme Court
• Parties: , 602 P.2d 393 Jerome A. LACKNER, Plaintiff and Appellant, v. Edward LaCROIX et al., Defendants and Respondents.

Page 693

159 Cal.Rptr. 693

25 Cal.3d 747, 602 P.2d 393

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

S.F. 24007.

Supreme Court of California.

Nov. 27, 1979.

Rehearing Denied Jan.17, 1980

Betty Aronow, Santa Clara, for plaintiff and appellant.

Hassard, Bonnington, Rogers & Huber, Howard Hassard, David E. Willett and A. Robert Singer, San Francisco, as amici curiae on behalf of plaintiff and appellant.

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

CLARK, Justice.

Plaintiff Jerome Lackner appeals from judgment of dismissal in an action for malicious prosecution. We affirm that judgment.

Defendant Roscoe Bailey, represented by defendant attorneys Edward LaCroix and Joseph Schumb, commenced a medical malpractice action against Lackner and others. The jury found the complaint had not been filed within the applicable limitations period as against Lackner, and the court dismissed as to him. Lackner then brought the instant action for malicious prosecution and defendants moved for summary judgment. In support of their motion defendants claimed the bar created by the statute in the underlying action did not satisfy the requirement that for Lackner to maintain the action for malicious prosecution there must have been a termination "favorable" to him in the first action. The trial court granted defendants' motion and dismissed the complaint.

] It is hornbook law that the plaintiff in a malicious prosecution action must plead and prove that the prior judicial proceeding of which he complains terminated in his favor." (Babb v. Superior Court (1971) 3 Cal.3d 841, 845, 92 Cal.Rptr. 179, 181, 479 P.2d 379, 381.) We therefore determine whether a successful statute of limitations defense constitutes a favorable termination of an underlying suit so as to support a subsequent action for malicious prosecution.

In Hurgren v. Union Mutual Life Ins. Co. (1904) 141 Cal. 585, 75 P. 168, a unanimous court held ". . . (A) verdict or final determination on the merits of the malicious civil suit or criminal prosecution complained of is not necessary to the maintenance of an action for malicious prosecution . . . . (I)t is sufficient to show that the former proceeding be Legally terminated." (Id., at p. 587, 75 P., at p. 168, italics in orig.) The rule in Hurgren was refined in Jaffe v. Stone (1941) 18 Cal.2d 146, 114 P.2d 335, 338, when this court unanimously held that termination of the underlying action must reflect on the defendant's innocence. "If (the termination) 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 . . . it does not constitute a favorable termination." (Id., at p. 150, 114 P.2d at p. 338, accord Minasin v. Sapse (1978) 80 Cal.App.3d 823, 826, 145 Cal.Rptr. 829.) "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 (of malicious prosecution)." (Id., at p. 150, 114 P.2d at p. 338, accord Babb v. Superior Court, supra, 3 Cal.3d 841, 846, 92 Cal.Rptr. 179, 479 P.2d 379. ¹

It is not essential to maintenance of an action for malicious prosecution that the prior proceeding was favorably terminated following trial on the merits. However, termination must Reflect on the merits of the underlying action. (Minasian v. Sapse, supra, 80 Cal.App.3d 823, 827, 145 Cal.Rptr. 829.) In holding a dismissal for failure to prosecute constitutes a favorable termination, the court in Minasian noted several examples illustrative of what may or may not be deemed favorable termination. " In some instances the manner of termination reflects the opinion of the court that the action lacks merit, as where the criminal proceedings are dismissed for lack of sufficient evidence of guilt following a preliminary hearing. (Citation omitted.) In others, the termination reflects the opinion of the prosecuting party that, if pursued, the action would result in a decision in favor of the defendant, as where the district attorney seeks dismissal of the prosecution of a criminal action for lack of evidence (citations omitted) or where the plaintiff in a civil proceeding voluntarily dismisses the action (citations omitted). By way of contrast, a dismissal . . . for lack of jurisdiction (citation omitted) not only is not on the merits, it is unreflective of the merits; neither the judgment of the court nor that of the prosecuting party on the merits is implicated in the dismissal. (P) A dismissal for failure to prosecute . . . does reflect on the merits of the action. . . . The reflection arises from the natural assumption that one does not simply abandon a meritorious action once instituted." (Id., at p. 827, 145 Cal.Rptr., at p. 832, see Jaffe v. Stone, supra, 18 Cal.2d 146, 150-152, 114 P.2d 335.)

It is apparent "favorable" termination does not occur merely because a party complained against has prevailed in an underlying action. While the fact he has prevailed is an ingredient of a favorable termination, such termination must further reflect on his innocence of the alleged wrongful conduct. If the termination does not relate to the merits reflecting on neither innocence of nor responsibility for the alleged misconduct the termination is not favorable in the sense it would support a subsequent action for malicious prosecution. ²

Termination of an action by a statute of limitations defense must be deemed a technical or procedural as distinguished from a substantive termination. Like other procedural defenses i. e., lack of personal jurisdiction or failure to comply with the statute of frauds the limitations defense is waived unless timely raised. Its procedural nature is further demonstrated by operation of the principal of revival by acknowledgment whereby a debt, though timely barred, may be revived through a new promise or written acknowledgment by the debtor. (See, 2 Witkin, Cal.Procedure (2d ed. 1970) Actions, § 390, p. 1223.)

Dismissal of the underlying action simply does not bear on plaintiff's alleged malpractice. " 'Statutes of limitations . . . are designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.' (Order of R.R. Telegraphers v. Railway Exp. Agency (1944) 321 U.S. 342 (348-349, 64 S.Ct. 582, 88 L.Ed. 788) . . . .)" (2 Witkin, Cal.Procedure, Supra, Actions, § 225, p. 1083.) Thus the purpose served by dismissal on limitations grounds is in no way dependent on nor reflective of the merits or lack thereof in the underlying action. (See Minasian v. Sapse, supra, 80 Cal.App.3d 823, 827, 145 Cal.Rptr. 829.) Insofar as appears, defendant's cause of action for plaintiff's alleged malpractice may well have been substantively meritorious.

Strong policy reasons run...