De La Pena v. Wolfe

• Decision Date: 23 January 1986
• Citation: 223 Cal.Rptr. 325,177 Cal.App.3d 481
• Court: California Court of Appeals Court of Appeals
• Parties: Fernando DE LA PENA, Plaintiff and Appellant, v. Kenneth Norman WOLFE, Defendant and Respondent. Civ. B010787.

Page 325

223 Cal.Rptr. 325

177 Cal.App.3d 481

Fernando DE LA PENA, Plaintiff and Appellant, v. Kenneth Norman WOLFE, Defendant and Respondent.

Civ. B010787.

Court of Appeal, Second District, Division 5, California.

Jan. 23, 1986.

As Modified Feb. 18, 1986.

Review Denied April 23, 1986.

Thomas A. Scuderi, Sherman Oaks, for plaintiff and appellant.

Howard M. Fields and David L. Brandon, Encino, for defendant and respondent.

ASHBY, Associate Justice.

Appellant Fernando de la Pena seeks to reverse a summary judgment granted to respondent Kenneth Wolfe on August 12, 1983. De la Pena sued Wolfe, an attorney, and others who are not parties to this appeal for malicious prosecution and abuse of process. ¹ The trial court granted Wolfe's summary judgment motion after finding that the termination of the prior suit against de la Pena was not a favorable termination based on the opinion in Zeavin v. Lee (1982) 136 Cal.App.3d 766, 186 Cal.Rptr. 545. The trial court correctly applied the law as stated in Zeavin, and we affirm the summary judgment.

The facts are not in dispute. De la Pena was sued by American Professional Business Bureau, Inc. (APB) in June 1980. De la Pena propounded interrogatories in July 1980. On September 25, 1980, de la Pena was granted a dismissal on the ground that APB had failed to answer the interrogatories. On October 23, 1980, the case was ordered dismissed and judgment was entered for de la Pena.

Meanwhile, in June 1980 Wolfe entered into a contract with APB. Wolfe agreed to accept approximately 400 collection case files. One of those cases was a suit against de la Pena. Wolfe prepared a number of substitution of attorney forms, but filed a form with the court on any particular case only after receiving the case file. In the de la Pena case Wolfe signed the substitution of attorney form on September 3, 1980, but filed the form on September 30, 1980. At the time of filing the form he also filed an at-issue memorandum, unaware that de la Pena's motion to dismiss had been granted five days earlier.

DISCUSSION

Summary judgment is proper only if the declarations in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not by declaration show such fact as may be deemed sufficient to present a triable issue. (Empire West v. Southern California Gas Co. (1974) 12 Cal.3d 805, 808, 117 Cal.Rptr. 423, 528 P.2d 31.) Where there is no material issue of fact to be tried and the sole question remaining is one of law, it is the duty of the trial court to determine the issue of law. (Angelus Chevrolet v. State of California (1981) 115 Cal.App.3d 995, 1000, 171 Cal.Rptr. 801.)

A malicious prosecution suit has three essential elements: favorable termination of the prior lawsuit, lack of probable cause in bringing the prior action, and malice. (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50, 118 Cal.Rptr. 184, 529 P.2d 608.) A favorable termination for malicious prosecution suits is one that tends to indicate the innocence of the accused. (Minasian v. Sapse (1978) 80 Cal.App.3d 823, 826, 145 Cal.Rptr. 829.) The termination need not be one that follows a trial on the merits, but the termination must reflect on the merits of the underlying action. (Lackner v. LaCroix (1979) 25 Cal.3d 747, 750, 159 Cal.Rptr. 693, 602 P.2d 393.) If the termination does not relate to the merits--reflecting on neither innocence of nor responsibility for the alleged misconduct--the termination is not favorable in the sense it would support a subsequent action for malicious prosecution. (Id., at p. 751, 159 Cal.Rptr. 693, 602 P.2d 393.)

In Zeavin v. Lee, supra, 136 Cal.App.3d 766, 186 Cal.Rptr. 545, an attorney was sued for malicious prosecution following the dismissal of the prior lawsuit for a failure by the plaintiff to comply with discovery procedures. The malicious prosecution case was on appeal from a dismissal following a demurrer in favor of the attorney. The appellate court affirmed on the ground that the dismissal of the prior suit was not a favorable termination for malicious prosecution purposes. The basis of the holding was that the termination did not reflect either the innocence of the original defendants or the lack of merits of the action. While stating that the dismissal could be treated as a concession by the client that the action lacked merit, the court stated that any such concession was not binding on the attorney.

The case before us is a virtual twin of Zeavin v. Lee. Both prior suits were dismissed for plaintiff's failure to make discovery. Both defendants filed malicious prosecution actions and sued the attorneys who represented the plaintiffs in the prior suits. As in Zeavin, the termination of the prior suit in this case was not a favorable termination which would permit a malicious prosecution action to go forward. Even more in this case than in Zeavin, any concession by the client that the prior suit lacked merit is not binding on the attorney because Wolfe substituted into the case well after APB failed to answer the interrogatories and, in fact, after de la Pena's motion to dismiss was granted.

De la Pena attempts to avoid the ruling in Zeavin. He argues that Wolfe should not be permitted to base a summary judgment on Zeavin because Wolfe had already brought two summary judgment motions prior to the issuance of Zeavin ² and had already had his day in court. De la Pena contends that the summary judgment that was granted to Wolfe violates Civil Procedure sections 1008 and 437c, subdivision (1), and was barred by res judicata. These contentions are meritless. With respect to sections 1008 and 437c, subdivision (1), the summary judgment granted on August 12, 1983, was not a reconsideration of a prior order but a new motion based on recently published case law. In addition, an order denying a motion for summary judgment is not a final judgment and not res judicata. (Code Civ.Proc., § 437c, subd. (j).) A subsequent motion for summary judgment may be made and granted. (Schulze v. Schulze (1953) 121 Cal.App.2d 75, 83-84, 262 P.2d 646.)

De la Pena argues that under the case law prior to Zeavin the termination of the suit against him would have been deemed favorable. This argument is irrelevant. Under the doctrine of stare decisis the trial court was bound to follow the Zeavin decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937) We find no basis for de la Pena's implication that Zeavin was wrongly decided.

De la Pena tries to distinguish Zeavin. He contends that the Zeavin court focused on the party...