Lucchesi v. Giannini & Uniack

• Decision Date: 26 July 1984
• Citation: 205 Cal.Rptr. 62,158 Cal.App.3d 777
• Court: California Court of Appeals Court of Appeals
• Parties: Dennis A. LUCCHESI, Plaintiff and Appellant, v. GIANNINI & UNIACK, et al., Defendants and Respondents. A017761.

Page 62

205 Cal.Rptr. 62

158 Cal.App.3d 777

Dennis A. LUCCHESI, Plaintiff and Appellant, v. GIANNINI & UNIACK, et al., Defendants and Respondents.

A017761.

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

July 26, 1984.

Howard R. Weber, Charles H. Richards, Richards & Weber, San Francisco, for plaintiff and appellant.

Peter B. Brekhus, Scott A. Williams, Brekhus & Williams, San Rafael, Kenneth J. Branch, Duman, Branch & Armstrong, Castro Valley, for defendants and respondents.

ANDERSON, Associate Justice.

Plaintiff Dennis A. Lucchesi (Lucchesi) brought an action for malicious prosecution ¹ against Edwin and Virginia Ela (the Elas) and their attorneys, Thomas Uniack, David T. Giannini, and the law firm of Giannini & Uniack. (Uniack, Giannini, and their law firm will be identified collectively as "attorneys.") The trial court granted separate motions for summary judgment brought by the Elas and their attorneys. ² Plaintiff appeals.

In their motions for summary judgment, the Elas and their attorneys each argued that the trial court rulings denying defense motions for summary judgment and for nonsuit in the initial proceedings collaterally established, as a matter of law, that probable cause existed for those proceedings, notwithstanding the fact that defendant Lucchesi ultimately prevailed. Further, the Elas claimed as a separate defense that they were simply clients who relied in good faith upon the advice of their attorneys in initiating the Marin County civil proceedings against appellant. We disagree with those positions and hold that the trial court erred in granting respondents' motions for summary judgment.

I. STANDARD OF REVIEW

A motion for summary judgment must be granted if all the affidavits, declarations, and other supporting papers show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (CODE CIV.PROC., § 437C³, subd. (c).) The aim of the summary judgment procedure is to discover, through the supporting papers, whether the parties possess evidence requiring the weighing procedures of a trial. (McKinney v. County of Santa Clara (1980) 110 Cal.App.3d 787, 793-794, 168 Cal.Rptr. 89.)

In examining the sufficiency of the declarations and other supporting papers filed in connection with the motion, we consider the respondents' papers strictly to determine if they establish their right to judgment by conclusively negating a necessary element of appellants' cause of action, and we construe appellants' declarations liberally to determine if appellants have established the existence of triable issues of fact. (Tool Research & Engineering Corp. v. Henigson (1975) 46 Cal.App.3d 675, 678, 120 Cal.Rptr. 291; see also McKinney v. County of Santa Clara, supra, 110 Cal.App.3d 787, 794, 168 Cal.Rptr. 89.) In a malicious institution proceeding, we consider depositions, documents, and records before the trial court at the hearing on the motion in the same manner. (Tool Research & Engineering Corp. v. Henigson, supra, 46 Cal.App.3d at p. 679, 120 Cal.Rptr. 291; see § 437c, subd. (b).) Doubts as to the propriety of granting the motion are resolved against the moving party. (McKinney v. County of Santa Clara, supra, 110 Cal.App.3d at p. 794, 168 Cal.Rptr. 89.) Finally, the moving party has the burden of proving the absence of any triable issue of fact even though the burden of proof as to the particular issue may rest with the resisting party at the trial. (Security Pac. Nat. Bank v. Associated Motor Sales (1980) 106 Cal.App.3d 171, 179, 165 Cal.Rptr. 38.)

With those principles in mind, we examine the record.

II. PROCEDURAL BACKGROUND

A. Events Preceding Marin County Action.

In early 1972 the Elas first came to Lucchesi who was Chief Loan Officer at CIT Financial Services (hereafter CIT). During that year and the next, Lucchesi approved some small loans for the Elas and granted extensions to the Elas on their repayment schedule. A personal acquaintanceship developed. When a requested loan was denied by CIT in October 1973, Lucchesi stated that Mr. Ela called him at his home and indicated that Ela and his wife were "desparate for money." According to Lucchesi, Ela urged him to personally buy their San Rafael residence. The Elas would then lease the property back with a right to repurchase it at current market value when able to do so.

On October 30, 1973, the Elas signed a grant deed, absolute on its face, granting their residential property to Lucchesi. A few days later, on November 6, 1973, the parties entered into a lease for a period of one year, automatically renewable annually with the right to repurchase provided for therein. Lucchesi understood the execution of the grant deed to be an absolute sale of the residence to him, and declared his belief that the Elas shared that understanding. ⁴

Regarding Attorney Uniack, Lucchesi declared that during the summer of 1973, in a matter unrelated to this case, he and Uniack had "engaged in hostile conversation which resulted in the exchange of verbal insults and a minor altercation." According to Lucchesi, Uniack vowed that he would "seek and gain revenge" against Lucchesi and implied he would do so through his practice of law. This animosity continued over a period of time.

In June 1975, Uniack advised Lucchesi he was representing the Elas with regard to the residential property and threatened that if ownership was not restored to the Elas, Uniack would initiate a lawsuit that would cost Lucchesi his job with CIT. Asserting the 1973 transactions were unfair to the Elas, Uniack eventually presented Lucchesi with a draft of a proposed lease option agreement intended to supersede the November 1973 lease agreement. Lucchesi retained an attorney. After extensive negotiations, ⁵ Lucchesi signed a new lease option agreement with the Elas on November 15, 1975. In doing so, Lucchesi declared he gave up substantial rights regarding the property, that he would not have entered into the lease but for Uniack's threats, and that in signing the new lease, Lucchesi, the Elas, and their attorneys intended and understood it would settle all issues of ownership and all other rights and interest concerning the property. ⁶ Also in the lease was an option to purchase the property within 30 days prior to the termination of the lease, with that option to expire by November 15, 1976. The Elas did not exercise this option, nor did they pay rent during several months of the lease.

B. The Marin County Action (No. 82204).

On November 12, 1976 (three days before expiration of the 1975 lease option agreement), defendants Elas, represented by defendant Giannini of the defendant law firm Giannini & Uniack, filed a "Complaint for Cancellation of Deed and to Quiet Title Plus Punitive Damages" in Marin County against Lucchesi, alleging that Lucchesi had defrauded and exerted undue influence on the Elas and that Lucchesi had violated several federal and state laws in entering into the original 1973 agreement. They sought cancellation of the grant deed and damages. Although Giannini's partner, Uniack, had prepared the 1975 lease option agreement, this lease was not mentioned in the complaint.

On July 12, 1977, Lucchesi moved for summary judgment in the Marin County proceeding. This was denied. On September 21, 1977, Lucchesi's codefendant, CIT, also moved for summary judgment. This motion, too, was denied. On November 15-16, 1977, a court trial was held before the Honorable Louis H. Burke, sitting as a superior court judge. After the plaintiffs, Mr. and Mrs. Ela, rested their case, Lucchesi's attorney moved for a nonsuit. ⁷ This motion was also denied.

Although he lost the battles, Lucchesi won the war, in that he prevailed at the conclusion of the trial. The court ordered that judgment be entered for Lucchesi. Further, on a cross-complaint by Lucchesi, the court ordered the property in question to be returned to Lucchesi.

C. The San Francisco Action (No. 749530).

On February 16, 1979, Lucchesi filed a complaint in San Francisco Superior Court initiating these proceedings. As amended, Lucchesi alleged that the Elas and their attorneys had maliciously initiated the Marin County action. ⁸ Lucchesi alleged he lost his job with CIT, suffered emotional distress, and incurred substantial attorney fees.

On December 7, 1981, the attorneys moved for summary judgment on the cause of action relating to them. They successfully argued that probable cause for instituting the Marin County action was established as a matter of law when the defense motions for summary judgment and for nonsuit during those proceedings were denied, notwithstanding the fact defendant Lucchesi ultimately prevailed.

The Elas in their motion for a summary judgment, urged the same grounds as had been advanced by their attorneys, and additionally argued that they, as clients, had probable cause because they had relied in good faith on the advice of their counsel in bringing the Marin County suit. Their motion was likewise granted.

III. MALICIOUS INSTITUTION OF A CIVIL PROCEEDING

A. Introduction.

The action for malicious prosecution is a recognition of the right of an individual to be free from unjustifiable litigation. It had its origin as a remedy for unjustifiable criminal proceedings and in most states, including California, it has been extended into the field of malicious institution of civil proceedings. To recover, the plaintiff must prove: (1) that the defendant initiated a criminal or civil proceeding without probable cause, (2) that the proceeding has terminated in the plaintiff's favor, and (3) that the defendant acted maliciously in instituting the proceeding. (Jaffe v. Stone (1941) 18 Cal.2d 146, 149, 114 P.2d 335; Cowles v. Carter (1981) 115 Cal.App.3d 350, 354, 171 Cal.Rptr. 269.)

With respect to the meaning of probable cause, probable cause does not mean "legal cause" to bring an action; otherwise, every plaintiff who...