De La Riva v. Owl Drug Co.

• Decision Date: 16 August 1967
• Citation: 61 Cal.Rptr. 291,253 Cal.App.2d 593
• Court: California Court of Appeals Court of Appeals
• Parties: Susano DE LA RIVA, Plaintiff and Appellant, v. OWL DRUG CO., a Nevada corporation, Rexall Drug and Chemical Company, a Delaware corporation, Merrill H. Mundy, Rita M. De La Riva, as Administratrix of the Estate of Louis Love Curtis, Sr., Deceased, Defendants and Respondents. Civ. 31436.

Page 291

61 Cal.Rptr. 291

253 Cal.App.2d 593

Susano DE LA RIVA, Plaintiff and Appellant, v. OWL DRUG CO., a Nevada corporation, Rexall Drug and Chemical Company, a Delaware corporation, Merrill H. Mundy, Rita M. De La Riva, as Administratrix of the Estate of Louis Love Curtis, Sr., Deceased, Defendants and Respondents.

Civ. 31436.

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

Aug. 16, 1967.

Sydney S. Finston, Philip M. Kurtz, Los Angeles, and Donald J. Hirsch, Beverly Hills, for appellant.

Spray, Gould & Bowers and Daniel L. Dintzer, Los Angeles, for respondents.

LILLIE, Associate Justice.

By his complaint as amended plaintiff sought damages for malicious prosecution of a criminal proceeding charging him and others with violations of section 182, subdivisions 1 and 4 of the Penal Code (conspiracy to steal merchandise from defendants' warehouse). It was alleged that at the conclusion of the preliminary hearing in December of 1958 he was held to answer for trial in the superior court, and that on February 16 of the following year the proceedings were dismissed 'in the interests of justice' on motion of counsel for the People. It was further alleged that such dismissal was a favorable termination of the prior proceeding in that the People's counsel knew or should have known that the evidence was insufficient to convict plaintiff of any crime, and that the motion was made despite plaintiff's refusal to stipulate to 'probable cause.' The remaining elements necessary for maintenance of the instant action, malice and lack of probable cause (Jaffe v. Stone, 18 Cal.2d 146, 149, 114 P.2d 335, 135 A.L.R. 775), are also pleaded.

Defendants' answers each included an affirmative defense alleging that plaintiff, after being held to answer, unsuccessfully moved to quash the information (Pen.Code, § 995) and thereafter permitted such order of denial to become final without taking steps by writ of prohibition or otherwise to review its propriety; that inherent in the order of plaintiff's commitment for trial is a finding that there was probable cause to believe him guilty of the offenses charged, and he is therefore estopped from seeking the relief sought in the subject action as to matters which, it is further alleged, are now res judicata.

By stipulation the trial court first considered the merits of the above special defense (Code Civ.Proc. § 597). Upholding such defense, the court found that since the order denying plaintiff's motion under section 995 had become final, he was collaterally estopped to deny the existence of probable cause; it was further found that such final order was res judicata of the existence of reasonable and probable cause for plaintiff's arrest and prosecution. From the ensuing judgment, plaintiff has appealed.

Defendants agree with plaintiff's assertion that the holding of a person to answer by the committing magistrate is not conclusive evidence that the prosecution later complained of was with probable cause and without malice (Diemer v. Herber, 75 Cal. 287, 17 P. 205); they point out, however, that proceedings under section 995 were not there involved. By virtue of that section, say defendants, the plaintiff here was provided with an opportunity to challenge the magistrate's ruling in the superior court, and that upon such review the court had before it the transcript of the proceedings before the magistrate. But defendants make no mention of the limited scope of review governing motions under that section: 'On a motion to set aside an information, the question of the guilt or innocence of the defendant is not before the court, nor does the issue concern the quantum of evidence necessary to sustain a judgment of conviction. The court is only to determine whether the magistrate, acting as a man of ordinary caution or prudence, could conscientiously entertain a reasonable suspicion that a public offense had been committed in which the defendant had participated. (Citation.)' (People v. Jablon, 153 Cal.App.2d 456, 459, 314 P.2d 824, 825.) Defendants do not go so far as to contend that the order denying the motion (to set aside) was necessarily a final determination establishing probable cause for the subject criminal prosecution; rather, as noted earlier, it is plaintiff's failure to seek further and timely review of such order which assertedly accords finality thereto. However, had he sought prohibition, the scope of review would still have been limited: 'By section 995 of the Penal Code, an information, and, since 1949 an indictment, 'must be set aside by the court (if the defendant) has been indicted without reasonable or probable cause' or 'committed without probable cause.' The term 'probable cause,' as used in this connection, was defined in People v. Nagle, 25 Cal.2d 216, 222, 153 P.2d 344, 347, in which it was pointed out that the evidence which will justify a prosecution need not be sufficient to support a conviction.' (Lorenson v. Superior Court, 35 Cal.2d 49, 56, 216 P.2d 859, 863.)

No case authority is cited by defendants in support of the proposition presently contended for; on the other hand, it has been stated that if a defendant does not seek prohibition, preferring to plead and stand trial, he may indirectly challenge the denial of his motion to quash on appeal from the judgment of conviction. (Witkin, California Criminal Proc., p. 215.) Cited is People v. Elliot, 54 Cal.2d 498, 6 Cal.Rptr. 753, 354 P.2d 225, where a motion under section 995 on the ground that appellant had not been 'legally committed' was denied; thereafter she unsuccessfully sought prohibition, the writ being denied without opinion. Upon commencement of her trial in the superior court, she moved to dismiss the information, and in the alternative, to exclude all evidence on the ground that her rights had been violated by the committing magistrate. Such motions were overruled. The Supreme Court declared that 'if the defendant has not been legally committed and if the trial court erroneously denies the motion to set the commitment aside and permits the action to proceed to judgment, the resulting conviction must be reversed. (Citations.) The theory of these cases is that where the accused is not legally committed within the meaning of section 995 of the Penal Code, the commitment is voidable. Upon proper objection, the superior court has no jurisdiction to proceed. It is the same as if no preliminary examination at all had been held, and is analogous to the situation where no evidence to connect the accused with the crime is introduced at the preliminary examination. In such event, of course, the information must be quashed. (Greenberg v. Superior Court, 19 Cal.2d 319, 121 P.2d 713.)' (P. 503, 6 Cal.Rptr. p. 756, 354 P.2d p. 228.) Because appellant Elliot actually sought prohibition (as noted above), the decision perhaps is not authority for the statement attributed to it in the text, supra; but it does answer the claim of defendants in their brief that no authority has been found which would indicate that an order under Penal Code section 995 is not a final determination of the question of probable and reasonable cause.

The fallacy of defendants' argument lies in their failure to appreciate the fact that a preliminary hearing is not a complete trial on the merits; otherwise there would be no reason for the determinations reached in People v. Jablon, supra, 153 Cal.App.2d 456, 314 P.2d 824, and numerous other decisions narrowly delimiting appellate review of the propriety of orders by committing magistrates. As stated in Jaffe v. Stone, supra, 18 Cal.2d 146, 114 P.2d 335: 'The purpose of (a preliminary hearing) is to determine whether a public offense has been committed, and whether there is sufficient cause to believe the defendant guilty thereof. If a sufficient showing is made, the defendant is 'held to answer' for trial in the superior court. (Citation.) The purpose of the preliminary hearing is to weed out groundless or unsupported charges of grave offenses, and to relieve the accused of the degradation and expense of a criminal trial. Many an unjustifiable prosecution is stopped at that point, where the lack of probable cause is clearly disclosed. The more unwarranted the charge, the more reckless and malicious the motives which inspired it, the less likelihood there is of its surviving this initial scrutiny by a judicial officer. Thus frequently the most objectionable and unwarranted prosecutions, which most clearly call for redress, are those which are terminated by dismissal by the magistrate for lack of evidence.' (Pp. 149--150, 114 P.2d p. 338.)

A further fallacy in defendants' argument is disclosed by their reliance on Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd., 58 Cal.2d 601, 25 Cal.Rptr. 559, 375 P.2d 439, which assertedly supports their claims of collateral estoppel and res judicata; they...