Pender v. Radin

• Decision Date: 08 April 1994
• Docket Number: No. D019373,D019373
• Court: California Court of Appeals Court of Appeals
• Parties: Francine Y. PENDER et al., Plaintiffs and Appellants, v. Irene RADIN, Defendant and Respondent.

Page 36

29 Cal.Rptr.2d 36

23 Cal.App.4th 1807

Francine Y. PENDER et al., Plaintiffs and Appellants, v. Irene RADIN, Defendant and Respondent.

No. D019373.

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

April 8, 1994.

Rehearing Denied May 6, 1994.

Review Denied June 22, 1994.

Rich, Sussman & Shipley and Robert L. Shipley, Los Angeles, for plaintiffs and appellants.

Jack R. Turner, Jr., Oceanside, and Michael R. Gardner, Fullerton, for defendant and respondent.

TODD, Associate Justice.

Francine Y. Pender and Gisele Pender (the Penders) appeal a summary judgment on their first amended complaint for malicious prosecution against Irene Radin. The Penders were among three defendants in Radin's lawsuit for breach of contract, fraud and misrepresentation that was settled when the third defendant paid Radin $25,000 and all parties agreed to waive any claim for attorney's fees or costs against the opposing parties. The principal assignment of error deals with whether the settlement of the earlier suit represented a termination in favor of the Penders; the Penders contend this presented a question of material fact that precluded summary judgment. The Penders also contend the trial court, which denied Radin's first motion for summary judgment, acted without legal justification in hearing Radin's second motion for summary judgment.

FACTS

In March 1990 Radin entered into two contracts with Herbert Pender III to remodel her home. Herbert, a licensed contractor who operated the Work Store, is the son of Gisele Pender and the brother of Francine Pender.

On August 13, 1990, Radin filed a complaint for breach of contract, fraud and misrepresentation against Herbert doing business as the Work Store, and individually. This lawsuit, Radin v. Pender (Super.Ct. San Diego County, 1990, No. N48363), also named Gisele Pender and Francine Pender as defendants.

On June 3, 1991, Radin's lawsuit was settled. According to the court minutes, as written by Judge Kevin Midlam, the terms of the settlement were as follows:

"Herbert Pender to pay to the [plaintiff] the sum of $25,000 prior to the close of [b]usiness on 6/4/91--[plaintiff] to dism[iss] On May 8, 1992, the Penders filed a complaint for malicious prosecution against Radin. On August 12, 1992, the Penders filed a first amended complaint for malicious prosecution against Radin; this is the operative pleading here. The Penders' first amended complaint sought compensatory damages of $17,873.25; this figure was later revised by the Penders, in response to an interrogatory, to $17,328.28--an amount that represented their legal fees and costs for Radin's lawsuit.

action in its entirety as to all defendants w[ith] prejudice--parties to bear own costs and fees. Enforceable per [Code of Civil Procedure section] 664.6."

On October 14, 1992, Radin filed her original motion for summary judgment/summary adjudication of issues; the motion was denied because the trial court found triable issues of fact existed as to the issues proffered for determination. On March 5, 1993, Radin filed a second motion for summary judgment/summary adjudication of issues. On April 28, 1993, the trial court (1) permitted Radin to renew her summary judgment/summary adjudication motion pursuant to CODE OF CIVIL PROCEDURE SECTION 437C¹, subdivision (f), and new case law; (2) granted summary adjudication of Radin's first issue, namely that the underlying action (Radin v. Pender (, supra, No. N48363)), did not terminate favorably for the Penders; and, (3) accordingly, granted summary judgment in favor of Radin in the instant malicious prosecution case. On May 14, 1993, the trial court denied the Penders' motion for reconsideration.

DISCUSSION

I

The Penders contend that the trial court erred in allowing Radin to renew her motion for summary judgment/summary adjudication. We disagree.

The Penders argue that in renewing her motion Radin did not satisfy section 437c, former subdivision (f) (now subd. (f)(2)), which provides in pertinent part:

"[A] party may not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court, unless that party establishes to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion." ²

The Penders maintain that between the filing of Radin's first motion in October 1992 and the filing of her second motion in March 1993 there were no "newly discovered facts or circumstances or a change of law" as required by section 437c, subdivision (f), to justify the second motion. The record, however, does not bear this out.

Francine Pender was deposed on February 17, 1993, and Gisele Pender was deposed on February 18, 1993. Among other things, these depositions established that (1) the Penders were suing Radin for the amount of costs and fees they incurred in defending Radin's underlying lawsuit, (2) while neither of the Penders had paid any money to Radin to satisfy the $25,000 settlement, they had given up partial collection of a debt owed to them by Herbert Pender so that Herbert could pay the $25,000 to Radin, and (3) the Penders were satisfied with their attorney who negotiated the settlement agreement. Thus, between the time of Radin's first motion for summary judgment/summary adjudication and her second motion, Radin had learned of new facts or circumstances through discovery. The newly discovered facts made the case of Villa v. Cole (1992) 4 Cal.App.4th 1327, 6 Cal.Rptr.2d 644, on which Radin relied for the first time in her second summary judgment/summary adjudication motion, applicable to this lawsuit. In light of the trial court's references in its minute order to new case law justifying the renewal of the summary judgment/summary adjudication motion and to Villa, ³ the Penders make much of the fact that the opinion in Villa was filed on March 18, 1992, before Radin filed her first summary judgment/summary adjudication motion. The Penders argue because the opinion in Villa was filed before Radin's first summary judgment/summary adjudication motion it could not represent a subsequent "change of law" that would justify a renewal of a summary judgment/summary adjudication motion under then section 437c, subdivision (f). However, the Penders' argument ignores the effect of the new facts or circumstances that were revealed through discovery subsequent to Radin's first motion; the newly discovered information justified the renewal of the summary judgment/summary adjudication motion under section 437c, subdivision (f), and brought Villa, a relatively new case, into play. In their reply brief, the Penders argue in conclusionary fashion that the trial court did not consider any newly discovered facts or circumstances because the minute order did not refer to any. We find this argument unpersuasive; the trial court was not required to outline the newly discovered facts or circumstances in its minute order. Because there was new information, the trial court did not abuse its discretion under the statute in allowing Radin to renew her motion.

II

The Penders contend summary judgment was wrongly granted because there was a triable issue as to a material fact, namely whether the termination of the underlying suit was favorable to the Penders. The contention is without merit.

Section 437c, subdivision (c), provides, in pertinent part, that a "motion for summary judgment shall be granted if all the papers submitted 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."

We apply the standard of review for summary judgments set forth in Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46. (See also Compton v. City of Santee (1993) 12 Cal.App.4th 591, 595, 15 Cal.Rptr.2d 660.) The trial court determines whether triable issues exist examining the affidavits and evidence, including any reasonable inferences which may be drawn from the facts. (People v. Rath Packing Co. (1974) 44 Cal.App.3d 56, 61-64, 118 Cal.Rptr. 438.) In examining the sufficiency of the affidavits, those of the moving party are strictly construed and those of the opposing party liberally construed. Any doubts as to the propriety of granting the motion are resolved in favor of the party opposing the motion. (Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785.)

On appeal from an order granting summary judgment, the appellate court examines the facts presented to the trial court and independently determines their effect as a matter of law in light of the above principles. (Stratton v. First Nat. Life Ins. Co. (1989) 210 Cal.App.3d 1071, 1083, 258 Cal.Rptr. 721.)

We begin by noting that the tort of malicious prosecution, which is disfavored because of its potential chilling effect on the willingness of people to report crime or pursue legal rights in court, consists of the following elements:

"[A] plaintiff must demonstrate 'that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff's, favor [citations]; (2) was brought without probable cause [citations]; and (3) was initiated with malice [citations].' " (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 871, 254 Cal.Rptr. 336, 765 P.2d 498, quoting Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50, 118 Cal.Rptr. 184, 529 P.2d 608; see also Sheldon Appel Co., supra, 47 Cal.3d at pp. 872-873, 254 Cal.Rptr. 336, 765 P.2d 498.)

If any of these elements is shown to be missing after a proper evaluation of the papers in a motion for summary judgment, the motion is to be granted. In the present case, we focus on the element of favorable termination.

In order for the termination of a lawsuit to be considered favorable to the malicious prosecution plaintiff, the...