MacDonald v. Joslyn

• Citation: 275 Cal.App.2d 282,79 Cal.Rptr. 707
• Court: California Court of Appeals
• Decision Date: 29 July 1969
• Parties: , 35 A.L.R.3d 641 Robert D. MacDONALD, Plaintiff and Respondent, v. Marcellus N. JOSLYN, Defendant and Appellant. Civ. 32710.

Page 707

79 Cal.Rptr. 707

275 Cal.App.2d 282, 35 A.L.R.3d 641

Robert D. MacDONALD, Plaintiff and Respondent, v. Marcellus N. JOSLYN, Defendant and Appellant.

Civ. 32710.

Court of Appeal, Second District, Division 4, California.

July 29, 1969.

Hearing Denied Sept. 24, 1969.

Morris Lavine, Los Angeles, for defendant and appellant.

Kindel & Anderson, Paul L. Freese and Malcolm George Smith, Los Angeles, for plaintiff and respondent.

FILES, Presiding Justice.

This action was brought to recover damages for the malicious prosecution of a will contest. Upon the ground that the defendant had wilfully refused to obey the orders of the court directing his appearance for the purpose of taking his deposition, defendant's answer was stricken and his default was entered. Following a default hearing, the court awarded plaintiff $123,052.91 as compensatory damages and $50,000 as exemplary damages. Costs were claimed and allowed in the sum of $346.20. Defendant has appealed from the judgment and the order denying his motion to strike the cost bill. Since his brief contains no argument directed to the appeal from the order, it must be deemed abandoned.

Plaintiff is the executor named in the will of Marcellus L. Joslyn, who died on June 30, 1963, leaving an estate in excess of 10 million dollars. Defendant, Marcellus N. Joslyn, is the oldest son of the testator. Soon after his father's death defendant retained counsel to investigate the validity of the will, and at their request the hearing on the petition for probate was postponed from July 10 to September 13, 1963. Eventually the services of that firm were terminated. On September 12 defendant consulted a new attorney who, on September 13, filed a contest of the will upon the grounds of fraud and undue influence. On November 25 still another firm was substituted as attorneys of record. On February 25, 1964, that firm applied to the court for leave to withdraw upon the ground that their client had failed to provide them with any information which would support the contest, and they could not conscientiously proceed with the action. Following the release of that firm, defendant appeared in propria persona and obtained a postponement of the trial from March 9 to March 31, 1964. On March 26, 1964, he filed a voluntary dismissal of the contest.

After some discussion in the probate court as to whether that dismissal was effective, the court admitted the will to probate on April 29, 1964.

This action for malicious prosecution was filed on March 31, 1964. Defendant's answer, filed April 10, 1964, denied that he had acted maliciously, and alleged, among other things, that he had acted in good faith upon the advice of counsel.

On October 25, 1966, plaintiff gave notice that the deposition of defendant would be taken at the office of plaintiff's attorney in Los Angeles on November 10, 1966.

On November 3, 1966, defendant served notice that on November 10, 1966, he would make a motion in the superior court for an order forbidding the deposition upon the ground he was a resident of San Antonio, Texas.

Plaintiff then made a countermotion under Code of Civil Procedure section 2019, subdivision (b)(2), for an order requiring defendant to come to Los Angeles for his deposition.

Both motions were heard on November 10, 1966, at which time the court ordered that defendant appear in Los Angeles for a deposition on January 27, 1967.

Defendant did so appear but, on the advice of counsel, refused to answer many of the questions put to him.

Plaintiff's motion for sanctions was heard by the court on February 27, 1967. The court ordered that defendant appear in the office of plaintiff's attorney on March 20, 1967, and answer the questions listed in the motion 'and all other proper questions.'

On March 20 defendant failed to attend. His attorney arrived and stated that on March 17 he had filed a petition in the Court of Appeal for a writ of prohibition. The Court of Appeal denied the petition on April 3.

Plaintiff made a new motion to strike defendant's answer which, by stipulation, was heard April 18. After a hearing, the court made a finding that defendant's failure to appear on March 20 was wilful, and ordered defendant's answer stricken on May 12, unless defendant gave notice that he would appear for a resumption of his deposition and did in fact appear and answer questions before that date.

On May 3 defendant's attorney notified plaintiff's attorney in writing that the deposition would be taken at the latter's office on May 12 at 10 a.m. Neither defendant nor his attorney of record appeared at the time and place designated.

On June 1, 1967, upon the request of plaintiff, the court ordered the clerk to strike the answer and enter the default of defendant.

The default trial was set for September 21, 1967. On that day defendant filed, without prior notice, a motion to be relieved of default 'on the grounds that the proceeding taken against him was through his mistake, inadvertence, surprise or excusable neglect.' In order to examine the record, the court postponed the hearing on all matters to October 11, on which date the court heard and denied defendant's motion. The court then heard plaintiff's evidence and ordered judgment.

Plaintiff's Standing And Capacity to Sue

Plaintiff filed this action as an individual, to recover damages which he personally sustained by reason of defendant's malicious acts. These damages included loss of commissions which otherwise he would have earned as executor, loss of trustee's fees, injury to this reputation and mental anguish. He was not suing to recover anything on behalf of the estate or as the personal representative of the estate. Defendant's argument that plaintiff 'had not qualified as executor at the time of the filing of the cause' has no relevance to this case.

Ordinarily the person who is plaintiff in a malicious prosecution had been the defendant in a prior proceeding which injured him. Plaintiff here filed a petition for probate of the will in which he had been named executor. When the will contest was filed the petitioner became in one sense a 'defendant' for the purposes of the trial of the contest. ¹ He was a person who was aggrieved by the conduct of the contestant who had filed the contest for a spiteful purpose and without probable cause.

In the State of Maryland there is a line of cases holding that 'damages can not be predicated upon the filing of a caveat to a will even though the caveat was filed maliciously and without probable cause.' (See Shamberger v. Dessel (1964) 236 Md. 318, 204 A.2d 68, 70.) The reason for that rule, as the cited case explains, is

"* * * Maryland has steadfastly adhered to the so-called 'English' rule that no action will lie for the malicious prosecution of a civil suit when there has been no arrest of the person, no seizure of the property of the defendant, and no special injury sustained which would not ordinarily result in all suits prosecuted for like causes of action."

The 'so-called 'English' rule' has been followed in only a minority of American courts (see Prosser on Torts (3d ed. 1964) § 114, p. 870; Note 6 A.L.R. 406) and was expressly rejected in California in Eastin v. Bank of Stockton (1884) 66 Cal. 123, 126, 4 P. 1106. The court there pointed out that the English rule stood on the ground that the successful defendant was adequately compensated by his recovery of costs, which under English law, included attorney fees and other items not recoverable as costs in California. The Eastin opinion states (at p. 127, 4 P. at p. 1109):

'But where the damages sustained by the defendant in defending a suit maliciously prosecuted, without reasonable or probable, cause, exceed the costs obtained by him, he has, and of right should have, a remedy by action in the case.'

Since California does not follow the theory upon which the Maryland cases rest, those cases are not authority here. The reasoning of the Eastin opinion is quite as applicable to a will contest as it is to that case.

There is no reason to doubt that the petitioner-defendant in a will contest has standing to maintain an action for the injury done to him by the malicious prosecution of the contest.

Sufficiency of the Complaint

The elements of the cause of action are '(1) a judicial proceeding favorably terminated; (2) lack of probable cause; and (3) malice.' (Jaffe v. Stone (1941) 18 Cal.2d 146, 149, 114 P.2d 335, 337, 135 A.L.R. 775; Masterson v. Pig'n Whistle Corp. (1958) 161 Cal.App.2d 323, 335, 326 P.2d 918.)

The latter two elements were directly averred in the complaint; but defendant argues that the first is lacking because the voluntary dismissal of the will contest was not a 'favorable termination.' He points out that a will contest voluntarily dismissed by the contestant prior to trial is not res judicata, and that the contest may be refiled after probate.

It is well established that a 'favorable termination' of the malicious proceeding need not be a final determination of the controversy. The rule is "that it is sufficient to show that the former proceeding had been legally terminated. The fact that such legal termination would not be a bar to another civil suit or criminal prosecution founded on the same alleged cause Is no defense to the action for malicious prosecution; * * *" (Jaffe v. Stone, Supra, 18 Cal.2d 146, 157, 114 P.2d 335, 337, quoting with approval, and with emphasis added, from Hurgren v. Union Mutual Life Ins. Co. (1904) 141 Cal. 585, 587, 75 P. 168.)

The Jaffe opinion (which dealt with an allegedly malicious criminal prosecution) states (at p. 150, 114 P.2d at p. 338): 'If, however, the dismissal is on technical grounds, for procedural reasons, of for any other reason not inconsistent with his guilt, it does not constitute a favorable termination.'

A voluntary dismissal of a civil action or proceeding by the plaintiff therein is not ordinarily considered a dismissal 'on technical grounds'...