Lerner v. Glickfeld

• Decision Date: 19 December 1960
• Citation: 187 Cal.App.2d 514,9 Cal.Rptr. 686
• Court: California Court of Appeals Court of Appeals
• Parties: Richard M. LERNER, Beulah C. Lerner, Thomas MacLeod and Margaret D. MacLeod, Plaintiffs and Respondents, v. Irving B. GLICKFELD and Ruth M. B. Glickfeld, Defendants and Appellants. Civ. 24692.

Page 686

9 Cal.Rptr. 686

187 Cal.App.2d 514

Richard M. LERNER, Beulah C. Lerner, Thomas MacLeod and Margaret D. MacLeod, Plaintiffs and Respondents, v. Irving B. GLICKFELD and Ruth M. B. Glickfeld, Defendants and Appellants.

Civ. 24692.

District Court of Appeal, Second District, Division 1, California.

Dec. 19, 1960.

Hearing Denied Feb. 15, 1961.

Hyman Goldstein, Beverly Hills, and Ellis J. Horvitz, Los Angeles, for appellants.

Harold A. Fendler, Beverly Hills, for respondents Lerner.

Don Lowry, Beverly Hills, for respondents MacLeod.

FOURT, Justice.

This is an appeal from a 'judgment on verdict in open court' in an action for malicious prosecution. The initial action which was the foundation for the subsequent malicious prosecution action had to do with the purchase and sale of certain real property. In the present action, wherein defendants were charged with malicious prosecution, judgment was entered in favor of plaintiffs Richard and Beulah Lerner in the sum of $17,000 compensatory damages and $2,000 exemplary damages, and in favor of plaintiffs Thomas and Margaret MacLeod in the sum of $8,000 compensatory damages and $2,000 exemplary damages.

The appellants admit the sufficiency of the evidence to support the verdict, 'except as to damages.'

A resume of some of the facts is as follows:

On March 15, 1954, Richard M. Lerner and Beulah C. Lerner (hereinafter referred to as the 'Lerners') and defendants entered into a written agreement designated 'deposit receipt,' by the terms of which the Lerners agreed to sell to defendants certain described property for the sum of $28,000. On March 16th, the parties executed written escrow instructions by the terms of which defendants agreed to assume an encumbrance of $18,000 and to deposit in escrow $10,000 in cash prior to June 15, 1954, for the purchase of Lot 89 of Tract 11433 in the City of Los Angeles, as per map recorded in Book 205, pages 20-25 of maps in the office of the Recorder of said county. Neither the deposit receipt nor the escrow instructions contained any reference to any condition relating to a swimming pool or a six-foot wall. In fact, the deposit receipt stated among other things, 'This writing expresses the entire contract between the parties and there are no other representations or understandings, oral or written, which alter its terms in any manner.'

Subsequently, defendant Irving Glickfeld, an attorney at law, maintained that the entire transaction was predicated upon an alleged oral representation that a certain sized swimming pool could be placed upon the property. The Glickfelds demanded a reduction in the purchase price, but the parties were unable to reach an agreement. Numerous charges and counter-charges were made.

In early June, the Lerners' attorney contacted Glickfeld and suggested putting the house up for other offers to see if someone else might make an offer to purchase the house before the close of escrow on June 14th. Glickfeld stated that he had no objection to so doing.

On June 11th, Lerners' attorney again contacted Glickfeld and advised him that there was a potential buyer interested in the property and on June 14th, the Glickfelds were informed that the Lerners had received a bona fide offer to purchase the property for $28,000. Glickfeld said he would not consent to any sale of the property to anyone else.

On June 15th defendants, Glickfeld, filed the prior action against the Lerners for 'specific performance and damages.' Therein, Glickfeld alleged that the Lerners had made oral representations concerning the size of the property to be conveyed and also had stated that there was sufficient room for a 20 X 40-foot swimming pool, in order to induce the Glickfelds to enter into the written agreement of March 16th.

On June 18, 1954, the Glickfelds filed an Amended Complaint in the prior action joining the MacLeods as parties defendant. It was alleged therein that the MacLeods were not bona fide purchasers and had knowledge of Glickfelds' rights in and to said property. The same allegations as to the MacLeods were repeated in the Second and Third Amended Complaints in the prior action. In Glickfelds' Fourth, Fifth and Sixth Amended Complaints in the prior action it was alleged that the MacLeods were not purchasers in good faith and for value, and that they knew when the conveyance to them was made that an incomplete escrow existed with reference to the sale by the Lerners to the Glickfelds.

The Glickfelds did not file their action against the Lerners until after the Lerners had signed their contract to sell to the MacLeods and had recorded the deed to the property. The Lerners' attorney had informed the MacLeods that the escrow had expired and the owners (Lerners) could sell the property to anybody they desired. The MacLeods were not advised that the Glickfelds had threatened to file an action or that they might become involved in litigation when they entered into the contract of sale.

At the time MacLeods agreed to buy the Lerners' property, they were in another escrow themselves and were required to vacate their own house no later than July 1, 1954. They wanted immediate possession and title to the end that prior to July 1st they could make improvements in the Lerner house, and as soon as the deed was recorded on June 15th, they did begin extensive improvements. Glickfeld knew at all times prior to June 15th that he could purchase the Lerner property by paying the balance of $9,500 cash into the escrow, as required by the escrow contract. Notwithstanding this knowleged and his continually expressed unwillingness to do this or to pay $28,000 for the Lerner property, Glickfeld repeatedly alleged in his various complaints that he and his wife 'were and always have been and still are ready and willing to perform the agreement on their part to be performed.'

As a result of the filing and prosecution of the prior action by the Glickfelds, both the MacLeods and the Lerners sustained substantial damages.

The jury returned a verdict in favor of both sets of plaintiffs (i. e. MacLeods and Lerners), and the Glickfelds moved for a new trial. The motion for the new trial was denied and the Glickfelds appealed from the judgment.

On appeal, the Glickfelds raise three issues: first, that certain instructions on 'probable cause' were prejudically erroneous; secondly, that the damages awarded were excessive; and finally, that counsel for the Lerners was guilty of prejudicial misconduct.

Appellants assert that 'Plaintiffs Lerners' Instruction 3 ¹ Was Prejudicially Erroneous'- ; that 'Plaintiffs' MacLeods Instruction 3-A ² Was Prejudicially Erroneous'; that 'The Prejudicial Effects of Instruction 3 and 3-A Were Compounded by Plaintiff Lerners' Instruction No. 5 'B" ³; and finally, that 'It Was Error to Instruct the Jury That Knowledge by Defendants of Facts Showing Want of Probable Cause Relates to the Time of the 'Filing of the Original Complaint or any Amended Complaint in the Prior Action.'' ⁴

Appellants assert that 'Plaintiffs' Lerner Requested Instruction No. 3' (footnote no. 1) required the jury to find lack of probable cause as a matter of law if the jury found that appellants did not believe or have reasonable ground to believe 'each and every allegations set forth in the instruction, including the allegation as to the amount of damages.' (Emphasis added.)

In order to have probable cause, a reasonable belief in the validity of the claim asserted is required. Albertson v. Raboff, 46 Cal.2d 375, 382, 295 P.2d 405.

The record discloses that appellants' contention is without merit. In the prior action appellants alleged in their verified amended, second amended and third amended complaints that the value of the real property was at all times from March 16, 1954, to June 15, 1954, the sum of $36,000. After demurrers had been sustained to the above complaints, the appellants thereupon filed their fourth and fifth amended complaints alleging that the value of the property on June 15, 1954 was $36,000, and that they had sustained damages of $8,000. Demurrers having been sustained to the aforementioned fourth and fifth amended complaints, appellants in their sixth amended complaint alleged that their previous allegations about the property's being worth $36,000 on March 16, 1954, and at all times thereafter until June 15, 1954, were 'inadvertent and incorrect' and that the real property had increased in value from $28,000 on March 16th to $36,000 on June 15th, and 'plaintiffs (i. e., appellants) intended said allegations to refer only to the time of performance, to wit, June 15, 1954.'

That portion of the aforementioned instruction with reference to damages is by its very terms expressly and solely related to appellants' claim of damages that the real property had increased in value some $8,000 when in fact they knew and had alleged (not on information and belief) in verified pleadings previously filed in the prior action that the value of the property was exactly the same and had not increased in value during the three-month period in question.

Appellants were asserting a claim for some $8,000 and the jury was properly instructed on the question of whether appellants had probable cause for asserting such a claim. Albertson v. Raboff, supra, 46 Cal.2d 375, 382, 295 P.2d 405. Under the facts of this case the instruction given was correct and taken in connection with the other instructions given on the question of probable cause, ⁵ it is clear that the jury was not misled into returning a verdict upon erroneous principles of law. Instructions must be read and considered as a whole. Lindenbaum v. Barbour, 213 Cal. 277, 286, 2 P.2d 161; Douglas v. Southern Pacific Co., 203 Cal. 390, 396, 264 P. 237; Domjanov v. Pacific Electric Railway Co., 66 Cal.App.2d 928, 933, 153 P.2d 382; Barsha v. Metro-Goldwyn-Mayer, 32 Cal.App.2d 556, 565, 90 P.2d 371; Rupp v. Summerfield, 161 Cal.App.2d 657, 326 P.2d 912. The...