Oppenheimer v. Tamblyn
| Court | California Court of Appeals |
| Writing for the Court | SHINN; PARKER WOOD, J., and NOURSE |
| Citation | 327 P.2d 574,162 Cal.App.2d 293 |
| Decision Date | 22 July 1958 |
| Parties | John G. OPPENHEIMER, Plaintiff and Appellant, v. W. D. TAMBLYN et al., Defendants, Wayne S. Vance, Defendant and Respondent. Civ. 22744. |
Page 574
v.
W. D. TAMBLYN et al., Defendants,
Wayne S. Vance, Defendant and Respondent.
[162 Cal.App.2d 295] John G. Oppenheimer, appellant, in pro. per.
Page 575
Roger Arnebergh, City Atty., William B. Burge, Deputy City Atty., Los Angeles, for respondent.
SHINN, Presiding Justice.
The present action is against W. D. Tamblyn, R. C. Briggs, Irving Gordon and Wayne S. Vance to recover damages for malicious prosecution. Vance demurred to the complaint. The court sustained his demurrer without leave to amend and entered judgment in his favor. Plaintiff appeals from the judgment dismissing the action as to Vance.
The complaint alleges: On or about February 15, 1955, defendants maliciously and without probable cause 'instituted, caused, procured and instigated a criminal prosecution against the plaintiff for purported violation of section 679 of the Vehicle Code * * *.' Defendants 'acted with oppression, fraud and malice' toward plaintiff. Plaintiff posted $53 bail and paid $50 for the services of an attorney in defending against the charge. Plaintiff also alleges: 'After due proceedings had in said criminal prosecution, it was dismissed, and plaintiff's bail was exonerated.' The prayer is for recovery of the attorney's fee and substantial general nad exemplary damages.
Vance interposed a general and special demurrer; the grounds of general demurrer were that the complaint failed to allege that the prosecution terminated in a manner favorable to plaintiff and that the action is barred by the provisions of section 340, subdivision 3 of the Code of Civil Procedure. The special demurrer specified two respects in which the complaint was uncertain and ambiguous, viz., it did not allege whether the prosecution had been terminated, and, if so, whether it had been terminated in plaintiff's favor. The record does not disclose the ground or grounds on which the demurrer was sustained.
The elements of a cause of action for malicious prosecution are: (1) A judicial proceeding favorably terminated; (2) want of probable cause; and (3) malice. Jaffe v. Stone, [162 Cal.App.2d 296] 18 Cal.2d 146, 114 P.2d 335, 135 A.L.R. 775. Where the complaint alleges no facts from which it can be concluded that the prior proceedings terminated favorably to the plaintiff, it fails to state a cause of action. Roos v. Harris, 203 Cal. 201, 263 P. 225; Prentice v. Bertken, 50 Cal.App.2d 344, 123 P.2d 96; Barrier v. Alexander, 100...
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Maxon v. Security Ins. Co. of New Haven, Conn.
...of action are: (1) A judicial proceeding favorably terminated; (2) want of probable cause; and (3) malice. (Oppenheimer v. Tamblyn, 162 Cal.App.2d 293, 295, 327 P.2d 574; Oppenheimer v. Tamblyn, 167 Cal.App.2d 158, 160, 334 P.2d 152.) It is also necessary, of course, that there be an injury......
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Von Brimer v. Whirlpool Corp., No. 74-1807
...(2) want of probable cause; and (3) malice. Jaffe v. Stone, 18 Cal.2d 146, 114 P.2d 335, 337 (1941); Oppenheimer v. Tamblyn, 162 Cal.App.2d 293, 327 P.2d 574, 576 While Sutter may preclude appellants from recovering for economic detriment suffered by the corporation, some of these damage cl......
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Babb v. Superior Court, S.F. 22761
...accrues at the conclusion of the litigation in favor of the party allegedly prosecuted maliciously. (Oppenheimer v. Tamblyn (1958) 162 Cal.App.2d 293, 297, 327 P.2d 574.) A logical corollary of that principle is the rule, long Page 182 [479 P.2d 382] recognized by this court, that the statu......
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Shakespeare v. City of Pasadena
...malicious prosecution accrues until the criminal case has finally terminated favorably to the plaintiff (Oppenheimer v. Tamblyn (1958) 162 Cal.App.2d 293, 327 P.2d 574). The statute of limitations, and the time for filing a claim, do not run until that date. Since plaintiff's claim was file......
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Maxon v. Security Ins. Co. of New Haven, Conn.
...of action are: (1) A judicial proceeding favorably terminated; (2) want of probable cause; and (3) malice. (Oppenheimer v. Tamblyn, 162 Cal.App.2d 293, 295, 327 P.2d 574; Oppenheimer v. Tamblyn, 167 Cal.App.2d 158, 160, 334 P.2d 152.) It is also necessary, of course, that there be an injury......
-
Von Brimer v. Whirlpool Corp., No. 74-1807
...(2) want of probable cause; and (3) malice. Jaffe v. Stone, 18 Cal.2d 146, 114 P.2d 335, 337 (1941); Oppenheimer v. Tamblyn, 162 Cal.App.2d 293, 327 P.2d 574, 576 While Sutter may preclude appellants from recovering for economic detriment suffered by the corporation, some of these damage cl......
-
Babb v. Superior Court, S.F. 22761
...accrues at the conclusion of the litigation in favor of the party allegedly prosecuted maliciously. (Oppenheimer v. Tamblyn (1958) 162 Cal.App.2d 293, 297, 327 P.2d 574.) A logical corollary of that principle is the rule, long Page 182 [479 P.2d 382] recognized by this court, that the statu......
-
Shakespeare v. City of Pasadena
...malicious prosecution accrues until the criminal case has finally terminated favorably to the plaintiff (Oppenheimer v. Tamblyn (1958) 162 Cal.App.2d 293, 327 P.2d 574). The statute of limitations, and the time for filing a claim, do not run until that date. Since plaintiff's claim was file......