Metzenbaum v. Metzenbaum

• Decision Date: 04 November 1953
• Citation: 262 P.2d 596,121 Cal.App.2d 64
• Court: California Court of Appeals Court of Appeals
• Parties: METZENBAUM v. METZENBAUM et al. (three cases). Civ. 19349.

Page 596

262 P.2d 596

121 Cal.App.2d 64

METZENBAUM v. METZENBAUM et al. (three cases).

Civ. 19349.

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

Nov. 4, 1953.

Hearing Denied Dec. 30, 1953.

Newell & Chester and Robert M. Newell, Los Angeles, for appellants.

Milton A. Krug, Los Angeles, for respondent.

SCOTT, Justice pro tem.

Three actions consolidated for trial were decided in favor of plaintiff and from that judgment defendants appeal.

Following the example of all counsel, we shall refer to the parties by their respective first names. Defendants Walter and Rose were husband and wife. They are parents of plaintiff Murray and of Fanchon.

There has been prolonged and bitter litigation among these parties, see Metzenbaum v. Metzenbaum, 86 Cal.App.2d 750, 195 P.2d 492; Metzenbaum v. Metzenbaum, 96 Cal.App.2d 197, 214 P.2d 603; Metzenbaum v. Metzenbaum, 115 Cal.App.2d 395, 252 P.2d 31, 966; Metzenbaum v. Metzenbaum, 115 Cal.App.2d 771, 252 P.2d 1014.

Of the three actions now before us for consideration on appeal, the first was for malicious prosecution, being number 563226 in the Los Angeles Superior Court, Murray, plaintiff. v. Walter and Fanchon, defendants (no judgment therein being rendered against Fanchon). It was based on a suit which had been called the 'trust case', previously brought in the same court, Walter and Fanchon, plaintiffs, v. Murray and others, defendants, number 528500. The judgment of the trial court in this 'trust case' was affirmed on appeal, 86 Cal.App.2d 750, 195 P.2d 492.

The second action now before us was likewise for malicious prosecution, Murray, plaintiff, v. Walter and Rose, defendants, number 574203 in the trial court (no judgment therein being rendered against Rose). It was based on a suit which has been called the 'partnership case' previously brought in the same court, Walter and Rose, plaintiffs, v. Murray and others, defendants, number 522631. The judgment of the trial court in this case was affirmed on appeal, 96 Cal.App.2d 197, 214 P.2d 603.

A separate appeal was taken by Murray from an order denying reimbursement to him as liquidating partner for attorney's fees. This order was reversed in part and affirmed in part, 115 Cal.App.2d 395, 252 P.2d 31, 966.

The third action now before us on this appeal is number 574204 in the trial court, Murray, plaintiff, v. Walter and Rose, defendants. It was an action to set aside an allegedly fraudulent conveyance of assets from Walter to Rose, by which Murray would be prevented from collecting his judgments in the two malicious prosecution cases.

Motion to dismiss the appeal of Walter from judgment covering the three cases now before us was made by Murray, and was denied, 115 Cal.App.2d 771, 252 P.2d 1014. Walter's appeal from judgment in favor of Murray in these three cases is now before us for determination.

The finding of the trial court as to the malicious prosecution based on the 'trust case' included the following: that Walter (who is an attorney) and Fanchon filed suit against Murray and his bank alleging that Murray held a certain royalty in an oil lease in trust for Fanchon; that a complaint, an amended complaint and a second amended complaint were filed; that the bank as collecting and disbursing agent was enjoined from paying Murray the proceeds of the royalty; that the injunction was terminated by failure of Walter and Fanchon to justify the securities on the undertaking; that Walter and Fanchon had charged that Murray wrongfully and without authority had sold part of the royalty and pledged the balance; that Walter acted with malice and without probable cause, that the allegations of the complaints and affidavits for injunction were false; that a demurrer to the second amended complaint was sustained and a judgment of dismissal thereafter entered. Having thus found that there was malice, want of probable cause and a termination favorable to Murray, the trial court found that he had sustained damages entitling him to an award of $5,000 plus $2,500 attorney's fees and $2,500 exemplary damages.

There was evidence, including a written agreement of Walter and Murray, that the oil lease royalty was an asset of a dissolved partnership composed of Walter and Murray, and that Walter claimed that at one time he had tried orally to convey to Fanchon one-half of the royalty without the consent of Murray and without regard to the rights of creditors of the partnership. The trial court was justified in its determination that as an attorney, Walter knew that he had no probable cause for filing his complaint and first and second amended complaints. As to matters of evidence which were in dispute, it was the province of the court, as trier of facts in the malicious prosecution cases, to determine whether or not such facts were shown as would warrant an inference of probable cause. The findings of fact in the case now under consideration, that were the basis for the trial court's determination that there was no probable cause are supported by substantial evidence in the record and hence will not be disturbed on appeal. Singleton v. Singleton, 68 Cal.App.2d 681, 691, 157 P.2d 886. The analysis by Justice Wilson of Walter's pleadings in the 'trust case', as reported in 86 Cal.App.2d 750, 195 P.2d 492, clearly shows that the entire case was one intended solely to harass and damage Murray. Good faith on the part of Walter was entirely lacking and actual malice was present and motivated his filing of the spurious pleadings.

The necessary elements of an action for malicious prosecution are: (1) a judicial proceeding favorably terminated; (2) lack of probable cause; and (3) malice. Jaffe v. Stone, 18 Cal.2d 146, 149, 114 P.2d 335, 135 A.L.R. 775. The burden is on one who seeks to recover damages for malicious prosecution to prove the foregoing issues. Hudson v. Zumwalt, 64 Cal.App.2d 866, 149 P.2d 457; Citizens State Bank v. Hoffman, 44 Cal.App.2d 854, 857, 113 P.2d 221; Lotts v. Whitworth, 76 Cal.App.2d 601, 605, 173 P.2d 823.

Our supreme court in the year 1884, in the case of Eastin v. Bank of Stockton, 66 Cal. 123, 126, 4 P. 1106, 1108, asked '* * *, whether in this state an action can be maintained for the malicious prosecution of a civil action in which no process other than the summons was issued', and stated, 66 Cal. at page 127, 4 P. at page 1109, '* * * when the action is brought and prosecuted maliciously, and without reasonable or probable cause, the plaintiff asserts no claim in respect to which he had any right to invoke the aid of the law. In such cases the plaintiff, by an abuse of legal process, unjustly subjects the defendant to damages which are not fully compensated by the costs he recovers. The plaintiff, in such a case, has no legal or equitable right to claim that the rule of law which allows a suit to be brought and prosecuted in good faith without liability of the plaintiff to pay the defendant damages, except by way and to the extent of the taxable costs, if judgment be rendered in his favor, should extend to a case where the suit was maliciously prosecuted without probable cause. 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.' (See also, 'Wrongful Civil Proceedings', Prosser on Torts, page 885, et seq. Sec. 97; Restatement, Torts, Vol. 3,...