Rare Coin Galleries, Inc. v. A-Mark Coin Co., Inc.

• Decision Date: 22 June 1988
• Docket Number: A-MARK,A-M
• Citation: 202 Cal.App.3d 330,248 Cal.Rptr. 341
• Court: California Court of Appeals Court of Appeals
• Parties: RARE COIN GALLERIES, INC., individually; Rare Coin Galleries, Inc., in behalf of a Joint Venture consisting of Rare Coin Galleries, Inc. and Bowers & Ruddy Galleries, Inc.; and Joel D. Rettew, etc., Plaintiffs and Appellants, v.COIN COMPANY, INC.;ark Financial, Inc.; Steven Markoff, Defendants and Respondents. Civ. B024898.

Page 341

248 Cal.Rptr. 341

202 Cal.App.3d 330

RARE COIN GALLERIES, INC., individually; Rare Coin Galleries, Inc., in behalf of a Joint Venture consisting of Rare Coin Galleries, Inc. and Bowers & Ruddy Galleries, Inc.; and Joel D. Rettew, etc., Plaintiffs and Appellants, v. A-MARK COIN COMPANY, INC.; A-Mark Financial, Inc.; Steven Markoff, Defendants and Respondents.

Civ. B024898.

Court of Appeal, Second District, Division 3, California.

June 22, 1988.

As Modified July 19, 1988.

Review Denied Sept. 21, 1988.

Miller & Daar, David Daar and Steve R. Belilove, Los Angeles, for plaintiffs and appellants

Shelden and Kulchin, Barry G. Florence and John M. McKenna, Encino, for defendants and respondents.

KLEIN, Presiding Justice.

Plaintiffs and appellants Rare Coin Galleries, Inc., individually, Rare Coin Galleries, Inc., on behalf of a joint venture consisting of Rare Coin Galleries, Inc. and Bowers & Ruddy Galleries, Inc., and Joel D. Rettew, individually, (collectively, Rare Coin) appeal a summary judgment in favor of defendants and respondents A-Mark Coin Company, Inc., A-Mark Financial, Inc., and Steven Markoff (collectively, A-Mark).

Because the tolling period for instigating a malicious prosecution action ended with the filing of the remittitur in the underlying action, Rare Coin properly filed its claim within one year of accrual, making the grant of summary judgment as to that cause of action error. ¹

FACTUAL AND PROCEDURAL BACKGROUND ²

La Vere Redfield, a Nevada resident, died in 1974 leaving a sizeable estate which included a coin collection of nearly one-half million United States silver dollars. On November 4, 1975, the Nevada probate court entered an order authorizing the executrixes of the estate to sell the coins at a private sale. On December 17, 1975, A-Mark executed an agreement with the estate to purchase a portion of the Redfield collection for $5,900,000. On December 22, 1975, Rare Coin filed a petition to enjoin the private sale to A-Mark and a conditional bid to purchase the collection at a higher price. On January 14, 1976, the probate court vacated its November 4, 1975 order and voided the purchase agreement on the grounds, inter alia, the order was erroneously entered and the court had the obligation to assure no property was sold for less than the best price obtainable. ³ The Redfield collection was sold at public sale on January 27, 1976, with A-Mark successfully bidding $7,300,000.

Immediately prior to the commencement of the bidding, A-Mark served Rare Coin with a complaint in an action denominated A-Mark Coin Company v. General Mills, Inc., etc., which it had filed in the Los Angeles Superior Court. The suit was based on allegations of intentional interference with a contractual relationship and with an advantageous business relationship. After a court trial, judgment denying A-Mark any relief was entered June 23, 1981. Notice of appeal was filed July 29, 1981. The judgment was affirmed in A-Mark Coin Co. v. General Mills, Inc., supra, 148 Cal.App.3d 312, 195 Cal.Rptr. 859, filed October 25, 1983. The Supreme Court denied hearing on February 1, 1984. The clerk of the Court of Appeal issued the remittitur on February 23, 1984.

On January 17, 1985, Rare Coin filed the subject action alleging malicious prosecution and abuse of process by A-Mark in pursuing the underlying action. A-Mark demurred on the ground the action was time-barred. (Code Civ.Proc., § 340, subd. (3).) After the demurrer was overruled, A-Mark filed a general denial and then moved for summary judgment, again asserting the one year statute of limitations.

On the summary judgment motion the trial court accepted A-Mark's position that the statute of limitations begins to run once a petition for hearing before the Supreme Court is denied in the underlying action, and not later upon the issuance of the remittitur. Therefore, finding Rare Coin filed its action 387 days after the accrual of its causes of action, the trial court granted summary judgment in favor of A-Mark. Rare Coin appeals.

CONTENTIONS

Rare Coin contends an appeal is concluded only upon the issuance of the remittitur; and therefore, the statute of limitations is tolled until such time, making its malicious prosecution cause of action timely filed.

DISCUSSION

1. Standard of appellate review.

Summary judgment is properly granted only if no triable issue exists or where the record establishes as a matter of law a cause of action asserted against a party cannot prevail. (Avila v. Standard Oil Co. (1985) 167 Cal.App.3d 441, 446, 213 Cal.Rptr. 314.) A motion for summary judgment is addressed to the sound discretion of the trial court, so that absent a clear showing of abuse, the judgment will not be disturbed on appeal. (Leo F. Piazza Paving Co. v. Foundation Constructors, Inc. (1981) 128 Cal.App.3d 583, 589, 177 Cal.Rptr. 268.)

However, where the facts are agreed or ascertained, it is a question of law whether a case is barred by the statute

of limitations, and we are not bound by the trial court's determination. (Cullinan v. McColgan (1927) 87 Cal.App. 684, 692, 263 P. 353; California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 699, 170 Cal.Rptr. 817, 621 P.2d 856.)

2. Background.

An action for malicious prosecution must be filed within one year of the accrual of the cause of action. (Code Civ.Proc., § 340, subd. (3); Soble v. Kallman (1976) 57 Cal.App.3d 719, 721, 129 Cal.Rptr. 373.) ⁴ The cause of action accrues at the time of entry of judgment in the underlying action in the trial court. (Scannell v. County of Riverside (1984) 152 Cal.App.3d 596, 616, 199 Cal.Rptr. 644.)

The fact that the time for appeal from the judgment has not yet run does not prevent the filing of the suit and therefore does not stay the running of the statute. (Gibbs v. Haight, Dickson, Brown & Bonesteel (1986) 183 Cal.App.3d 716, 719, 228 Cal.Rptr. 398.) However, the pendency of an appeal from the judgment in the underlying action prevents the maintenance of a malicious prosecution action based on that judgment. ( Id., at p. 722, 228 Cal.Rptr. 398.) Therefore, the statute of limitations runs from accrual upon entry of judgment until the date of filing of notice of appeal. (Ibid.) The statute is then tolled until the conclusion of the appellate process, at which time it commences to run again. (Ibid.)

The sole issue for our consideration is at what point is the appeal process exhausted. In the instant case, the trial court adhered to Gibbs, which held appellate review is concluded with the denial of a petition for hearing by the Supreme Court. ( Id., at p. 722, 228 Cal.Rptr. 398.) Rare Coin urges the issuance of the remittitur by the Court of Appeal is the proper event to begin a new the running of the statute. To resolve the question, we begin by examining the role of the remittitur in the appellate process.

a. The remittitur.

A Court of Appeal decision becomes final as to that court 30 days after filing. (Cal.Rules of Court, rule 24(a).) ⁵ A party seeking review by the Supreme Court must serve and file a petition within 10 days after the decision of the Court of Appeal becomes final as to that court. (Rule 28(b).) The Supreme Court then has up to 90 days, including extensions, within which to order review of the Court of Appeal decision. (Rule 28(a)(2).) Notwithstanding the denial of the petition by the Supreme Court on an earlier date, the clerk of the Court of Appeal normally withholds issuance of the remittitur until the expiration of the period during which review in the Supreme Court may be determined. (Rule 25(a).) ⁶ The remittitur is deemed issued on the clerk's entry of it in the record of the case. It is to be transmitted immediately, with a certified copy of the opinion, to the superior court. (Rule 25(a).) Upon issuance of the remittitur, the clerk of the Court of Appeal mails notice thereof to the parties. (Rule 25(e).)

After the remittitur is issued, the jurisdiction of the appellate court ceases, and jurisdiction is revested in the superior court. (Riley v. Superior Court (1957) 49 Cal.2d 305, 310, 316 P.2d 956.) Thus, the effect of the delay between the filing of the Court of Appeal opinion and the issuance of the remittitur is to afford the parties the opportunity to petition for

rehearing in the Court of Appeal (rule 27(b)), and to seek review in the Supreme Court, before appellate jurisdiction is lost.

3. Recommencing running of statute with issuance of remittitur is more workable rule.

As indicated, Gibbs declares the denial of a petition for hearing exhausts the appeal process. ( Gibbs v. Haight, Dickson, Brown & Bonesteel, supra, 183 Cal.App.3d at p. 722, 228 Cal.Rptr. 398.) In that case, 414 days elapsed between entry of judgment in the underlying case and the filing of the malicious prosecution action. (Ibid.) Accordingly, the Gibbs court was not required to address why it is the denial of review, as opposed to the issuance of the remittitur or some other occurrence, which marks the conclusion of appellate review and thereby resumes the running of the statute. The significance of the date of the issuance of the remittitur in relation to that of the Supreme Court's denial of review was not raised as an issue in Gibbs, and therefore, the subject of remittitur was not even discussed.

Further analysis discloses that resort to the remittitur to end the tolling period is the more workable rule. As indicated, although the Supreme Court may have denied review on an earlier date, the clerk of the Court of Appeal generally does not issue the remittitur until the expiration of the period during which the Supreme Court still has jurisdiction to grant review. (Rule 25(a) and (b)). Until the Supreme Court loses jurisdiction in the matter, it may reconsider its order denying review and grant hearing. For the reasons that follow, such admittedly remote possibility makes the issuance of the remittitur the appropriate...