Williams v. Hartford Ins. Co.

• Decision Date: 07 October 1983
• Citation: 147 Cal.App.3d 893,195 Cal.Rptr. 448
• Court: California Court of Appeals Court of Appeals
• Parties: Harold W. WILLIAMS, Jr., Plaintiff and Appellant, v. HARTFORD INSURANCE COMPANY, et al., Defendants and Respondents. Civ. 68340.

Page 448

195 Cal.Rptr. 448

147 Cal.App.3d 893

Harold W. WILLIAMS, Jr., Plaintiff and Appellant, v. HARTFORD INSURANCE COMPANY, et al., Defendants and Respondents.

Civ. 68340.

Court of Appeal, Second District, Division 4, California.

Oct. 7, 1983.

William Jerome-Pollack, Los Angeles, DeGoff & Sherman, and Richard Sherman, Berkeley, for plaintiff and appellant.

Paul, Hastings, Janofsky & Walker, Peter K. Rosen, Thomas M. Pors, Pepper, Hamilton & Scheetz, Jesse D. Miller, and Paul Woolls, Los Angeles, for defendant and respondent Hartford Acc. and Ins. Co.

Garber & Garber, and Richard D. Newman, Los Angeles, for defendant and respondent Joseph Henry Wood.

Rushfeldt, Shelley & McCurdy, North Hollywood, and Steven D. Fondiler, Beverly Hills, for defendants and respondents Regents of the University of California and John D. Dillon.

KINGSLEY, Associate Justice.

Plaintiff appeals from an order of dismissal entered after the trial court sustained, without leave to amend, an action for malicious prosecution and other alleged torts. We reverse the order insofar as it dismisses the malicious prosecution cause of action but affirm it as to the other causes of action.

The present action is an aftermath of a wrongful death action prosecuted on behalf of the heirs of Mrs. June Walker, who allegedly died as the result of medical malpractice by the doctors and staff of a hospital owned and operated by defendant Regents. The law firm of Cheren and Goldberg were retained to prosecute that action. That firm employed plaintiff, an experienced trial attorney, to handle the case. Defendant Hartford Insurance Company was the insurer of the Regents and of the doctors involved. The Walker case eventually was settled, but for a sum substantially higher than the Hartford's original offer.

During the course of the negotiations over the Walker case, a copy of Hartford's file was given to the office of Cheren and Goldberg. The circumstances of that delivery lie at the heart of the present litigation. Admittedly, the file was used by appellant in his negotiations with Hartford. Some time later, law enforcement personnel, executing a search warrant for the office of Cheren and Goldberg, on a matter totally unrelated to the Walker case, discovered the Hartford file, stamped "Confidential," and inquired of officers of Hartford. The reply was that the file had been stolen. That information ultimately led to the arrest and prosecution of appellant on charges of theft and receiving stolen property. He was acquitted, and the present litigation followed.

The complaint ¹ set forth ten alleged causes of action: (1) malicious prosecution; (2) fraud; (3) negligence; (4) violation of section 790.03(h) of the Insurance Code; (5) false imprisonment; (6) abuse of process; (7) interference with economic advantages; (8) defamation; (9) intentional infliction of emotional distress; and (10) negligent infliction of emotional distress. ² The complaint named as defendants (so far as this appeal is concerned): Hartford; the Regents; Dr. Dillon; and Joseph Wood, a claims agent for Hartford. General demurrers to the complaint were sustained, without leave to amend, on the stated ground that all the acts complained of were privileged under section 47 of the Civil Code. This appeal followed; we reverse as to the first cause of action (malicious prosecution) but affirm as to the other nine counts.

I

Appellant admits that the second cause of action (fraud) states no facts sufficient to constitute a cause of action in favor of plaintiff. The ruling as to that cause of action is affirmed. The third through tenth causes of action set forth various theories of damage from the prosecution, all of which, if appellant should ultimately succeed, after trial, on the malicious prosecution cause of act, will be matters affecting the damages in that action; in addition to the technical objections raised below and briefed here, they have no independent standing. We affirm the action as to them.

II

The serious issue on this appeal relates to the first (malicious prosecution) cause of action. As we have said above, the ground stated by the trial court for sustaining demurrers, was privilege. That ground was in error. In Albertson v. Raboff (1956) 46 Cal.2d 375, 295 P.2d 405, the Supreme Court said (at p. 382, 295 P.2d 405):

"It may be noted at the outset that the fact that a communication may be absolutely privileged for the purposes of a defamation action does not prevent its being an element of an action for malicious prosecution in a proper case. The policy of encouraging free access to the courts that underlies the absolute privilege applicable in defamation actions is outweighed by the policy of affording redress for individual wrongs when the requirements of favorable termination, lack of probable cause, and malice are satisfied."

However, as respondents point out, on appeal, if a general demurrer was good as to any ground urged in the trial court, the resulting judgment will be affirmed. We turn, therefore, to the other grounds urged on us by the briefs herein.

A

Respondents, other than Hartford, contend that the complaint alleges only conduct by Hartford as related to the arrest and prosecution. However, the complaint alleges, at some length, a conspiracy by those defendants, with Hartford, to discredit appellant out of anger at his success in the Walker case, and that the alleged falsehoods told by Hartford were in pursuance of that conspiracy. If that allegation is proved at trial, all of the present respondents will be liable (or not liable) along with Hartford.

B

Respondents rely on language in Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710, 117 Cal.Rptr. 241, 527 P.2d 865 where the Supreme Court said (at p. 720, 117 Cal.Rptr. 241, 527 P.2d 865):

"Malicious prosecution 'consists of initiating or procuring the arrest and prosecution of another under lawful process, but from malicious motives and without probable cause.... [Italics in original.] The test is whether the defendant was actively instrumental in causing the prosecution.' (4 Witkin, Summary of Cal.Law (8th ed. 1974) Torts, § 242, pp. 2522-2523.) Cases dealing with action for malicious prosecution against private persons require that the defendant has at least sought out the police or prosecutorial authorities and falsely reported facts to them indicating that plaintiff has committed a crime."

That language was used in a case not involving malicious prosecution but for false imprisonment and, at the point in the opinion quoted, the Court was considering an argument based on section 821.6 of the Government Code, which expressly deals with to the "institution" of an action. Directly in point is Rupp v. Summerfield (1958) 161 Cal.App.2d 657, 326 P.2d 912, where this Court said (at p. 663, 326 P.2d 912):

"Appellant's second point on appeal involves the giving of plaintiff's requested jury instructions Numbers 9, 8, 4, 3, 6 and 11. Appellant complains that plaintiff's requested instruction Number 9 which reads, 'A person who knowingly testifies falsely at a preliminary hearing in a criminal prosecution may be held liable for malicious prosecution. It is no defense that the person was subpoenaed to testify at such preliminary hearing,' is a direction to the jury that if it finds appellant testified falsely at the preliminary hearing, he was as a matter of law liable; and that the law requires more than perjury for malicious prosecution. It is not true, as suggested by appellant, that the sole basic element of an action for malicious prosecution is the initiation of a criminal proceeding, for which he cites Prosser, Torts, 860 (1st ed. 1941). Dean Prosser continues, at page 865 in his text on torts, and on which appellant remains silent: 'On the other hand if he advises or assists another...