Soble v. Kallman
Decision Date | 27 April 1976 |
Citation | 129 Cal.Rptr. 373,57 Cal.App.3d 719 |
Court | California Court of Appeals Court of Appeals |
Parties | Lee SOBLE, Plaintiff and Appellant, v. Dee Jane KALLMAN et al., Defendants and Respondents. Civ. 47304. |
Denald P. Gudin, Los Angeles, for plaintiff and appellant.
Paul Kallman, Los Angeles, for defendant and respondent Kallman.
Plaintiff Lee Soble appeals the dismissal of his action for malicious prosecution after the trial court sustained without leave to amend a demurrer of defendant Dee Jane Kallman to the amended complaint on the ground the action was barred by the statute of limitations.
The amended complaint alleges that on 14 November 1968 Kallman, maliciously and without cause, commenced a civil action for assault and battery against Soble. Kallman served a summons on Soble but took no further steps to prosecute her action. On 30 November 1973 the trial court on its own motion dismissed her action for not having been brought to trial within five years and ordered the clerk to give notice of dismissal to counsel of record. The superior court file does not reflect the mailing of such notice by the clerk, and it is agreed that neither party served notice of the dismissal. On 13 February 1975 Soble sued Kallman for malicious prosecution.
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; Dept. of Mental Hygiene v. Hsu, 213 Cal.App.2d 825, 826--27, 29 Cal.Rptr. 244.) Soble contends his action was timely filed, and he reasons thus: his cause of action did not accrue until Kallman's suit had terminated in his favor (Jaffe v. Stone, 18 Cal.2d 146, 149, 114 P.2d 335); Kallman's suit did not finally terminate until the expiration of her time for appeal, which was 180 days from the dismissal of her action because notice of dismissal had not been mailed by the clerk or served by the parties (Cal. Rules of Court, Rule 2, subd. (a)); consequently, Soble's action for malicious prosecution was timely filed within one year of the termination of Kallman's suit.
The flaw in Soble's logic lies in its premise that Kallman's suit was not terminated in his favor until the time for appeal had expired. We have found only one square California ruling on this issue, Anderson v. Coleman, 56 Cal. 124, which holds that a cause of action for malicious prosecution accrues at the time judgment on the underlying action is entered in the trial court. There a two-year statute of limitations for malicious prosecution of an action for injunctive relief was involved, and about its commencement the Supreme Court said:
Decisions in other jurisdictions are in accord. (Board of Ed. of Miami Trace Local Sch. Dist. v. Marting (1966) 7 Ohio Misc. 64, 217 N.E.2d 712, 717--718; Allen v. Burdett (1921) 89 W.Va. 615, 109 S.E. 739, 740--741; Luby v. Bennett (1901) 111 Wis. 613, 87 N.W. 804, 806; Foster v. Denison (1896) 19 R.I. 351, 36 A. 93; see Annot., 87 A.L.R.2d 1047, 1064--1065.)
Lack of finality in the underlying judgment is a matter for abatement or defense. In Carter v. Paige, 80 Cal. 390, 392--393, 22 P. 188, 189, the Supreme Court explained:
(See also Merron v. Title Guarantee etc. Co., 11 Cal.App.2d 565, 54 P.2d 61.)
Soble cites Code of Civil Procedure, section 1049: 'An action is deemed to be pending from the time of its...
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