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

Jerome LACKNER, Plaintiff and Appellant, v. Edward LaCROIX et al., Defendants and Respondents.

Civ. 41630.

Decided: January 30, 1979

Betty Aronow, San Jose, for plaintiff and appellant. Ropers, Majeski, Kohn, Bentley & Wagner, Michael J. Brady, Redwood City, for defendants and respondents.

Appellant appeals from a judgment of dismissal after the trial court granted respondents' motion for partial summary judgment in an action for malicious prosecution.[FN1] Appellant also seeks review of the trial court's denial of his motion for partial summary judgment on the issue of respondents' lack of probable cause to institute and file a malpractice action.

We reverse the judgment; the requirement that a plaintiff in a malicious prosecution action must have received a legal determination in his favor in the underlying proceeding does not mean that a legal determination in his favor On the merits was necessary.

Accordingly, appellant could predicate a malicious prosecution suit on a legal determination in his favor by a jury verdict terminating the prior malpractice action as barred by the statute of limitations.

“To establish a cause of action for the malicious prosecution of a civil proceeding, a plaintiff must plead and prove 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 (Babb v. Superior Court (1971) 3 Cal.3d 841, 845, 92 Cal.Rptr. 179, 479 P.2d 379; White Lighting Co. v. Wolfson (1968) 68 Cal.2d 336, 349, 66 Cal.Rptr. 697, 438 P.2d 345; Hurgren v. Union Mutual Life Ins. Co. (1904) 141 Cal. 585, 587, 75 P. 168); (2) was brought without probable cause (Grant v. Moore (1866) 29 Cal. 644, 648; Masterson v. Pig'n Whistle Corp. (1958) 161 Cal.App.2d 323, 335, 326 P.2d 918; Metzenbaum v. Metzenbaum (1953) 121 Cal.App.2d 64, 68, 262 P.2d 596); and (3) was initiated with malice (Albertson v. Raboff (1956) 46 Cal.2d 375, 383, 295 P.2d 405; Baker v. Gawthorne (1947) 82 Cal.App.2d 496, 498, 186 P.2d 981). (See generally 4 Witkin, Summary of Cal.Law (8th ed.) Torts, s 255, pp. 2531-2532; Prosser, Law of Torts 4th ed. (1971) s 120, pp. 850-856; 1 Harper & James, The Law of Torts (1956) s 4.8.)” (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50, 118 Cal.Rptr. 184, 189, 529 P.2d 608, 613.)

The trial court's order granting defendants' motion for summary judgment on the grounds that the jury verdict in the medical malpractice action did not constitute a “favorable termination” concludes as follows: “Jaffe was cited and followed in De La Riva v. Owl Drug Co., 253 C(al.)A(pp.)2d 593 (1967), MacDonald v. Joslyn, 275 C(al.)A(pp.)2d 282 (1969), and Rich v. Siegel, 7 C(al.)A(pp.)3rd 465 (1970).

“Jaffe was also cited and quoted in Babb v. Superior Court, 3 C(al.)3rd 841, (92 Cal.Rptr. 179, 479 P.2d 379) (1971) where the decision noted that: ‘Although the original proceeding in Jaffe was criminal, the Gist of the statement is equally applicable to cases, like the one at bench, where the main action is civil.’ (3 C(al.)3rd at 846, 92 Cal.Rptr. 179, 479 P.2d 379) (Emphasis added.)

“In the original malpractice action involved here, the jury found in favor of Lackner, defendant therein, on the grounds that the malpractice action was barred by the statute of limitations. This was clearly procedural and not inconsistent with the existence of malpractice. Accordingly it was not a ‘favorable termination’ under Jaffe.

“Since favorable termination is one of the elements which must be established in an action for malicious prosecution, summary judgment on that issue in favor of defendants La Croix and Schumb necessarily results in judgment for said defendants in the entire action.”

The reference to “Jaffe,” of course, is to the leading case of Jaffe v. Stone (1941) 18 Cal.2d 146, 114 P.2d 335, which the trial court briefed and analyzed in accurate detail in its order granting respondents' motion. Naturally respondents herein rely upon Jaffe v. Stone.

However, in our view, this reliance is misplaced and the trial court's ruling is erroneous. It is certainly true, as pointed out by the trial court's order, that Chief Justice Gibson's opinion in Jaffe, at page 150, 114 P.2d at page 338, explaining the theory underlying a determination whether the prior complained of action resulted in a “favorable termination” enunciated an “inconsistent with guilt” test. We quote: “It is not enough, however, merely to show that the proceeding was dismissed. The theory underlying the requirement of favorable termination is that it tends to indicate the innocence of the accused, and coupled with the other elements of lack of probable cause and malice, establishes the tort, that is, the malicious and unfounded charge of crime against an innocent person. If the accused were actually convicted, the presumption of his guilt or of probable cause for the charge would be so strong as to render wholly improper any action against the instigator of the charge. The thought has also been expressed that the tort action under such circumstances would involve a collateral attack on the criminal judgment. Hence, if the criminal proceeding goes to trial, it is ordinarily necessary, as a foundation for a malicious prosecution suit, that the plaintiff should have been acquitted. (See generally, Prosser on Torts, p. 867; Harper on Torts, p. 584.) The same fundamental theory is applied in testing a dismissal or other termination without a complete trial on the merits. If it is of such a nature as to indicate the innocence of the accused, it is a favorable termination sufficient to satisfy the requirement. If, however, the dismissal is on technical grounds, for procedural reasons, or for any other reason not inconsistent with his guilt, it does not constitute a favorable termination.” (Emphasis added.)

Understandably, the trial court obviously reasoned that Justice Sullivan's “gist” statement in Babb v. Superior Court (1971) 3 Cal.3d 841, 92 Cal.Rptr. 179, 479 P.2d 379, compelled application of the Jaffe “inconsistent with guilt” test to appellant's cause. However, Babb did not address “favorable termination” in the factual context of a prior action barred by statute of limitations. Babb sought by way of cross-complaint a declaratory judgment that a civil action was being prosecuted maliciously. Babb holds only that “For conceptual, practical, and policy reasons, the plaintiff in a malicious prosecution action must plead and prove that the prior judicial proceeding of which he complains, whether civil or criminal, Terminated in his favor; thus, a defendant cannot Cross-complain or Counterclaim for malicious prosecution in the first action.” (Babb v. Superior Court, supra, at p. 842, 92 Cal.Rptr. 179, 479 P.2d 379, emphasis added.)

We conclude that the “inconsistent with guilt” rationale of Jaffe v. Stone, supra, is best limited in its application to the context in which it was stated, i. e., where the underlying action was a criminal prosecution. The case at bench serves to illustrate that when the prior action is a civil proceeding, the rationale of Jaffe is likely to misdirect in deciding the issue of “favorable determination.” For example, respondents' brief contends that because the determination herein was based upon the statute of limitations, “(t)he jury did not pass upon the merits of the allegations of negligence and malpractice brought against Dr. Lackner.” Further, they argue that because the prior determination “in no way casts any light upon the innocence or nonliability of Dr. Lackner,” the determination was “technical” and “procedural” and therefore not a “favorable termination.” While Jaffe may reasonably be read as requiring a determination on the merits under the facts here, there is no such requirement when the initial action is a civil proceeding. We quote the test writers: “To maintain an action for malicious prosecution based on a wrongful civil suit, it is not necessary that all proceedings that may be had or required in an action finally to work out or enforce the rights of the parties shall occur before a cause of action will accrue to the defendant therein. It is sufficient for the issues material to the question of the good faith of the suit to be tried and closed by final judgment. In other words, it is not essential for the civil suit to have been disposed of on the merits; it is sufficient to show that the particular action complained of is at an end and that it terminated favorably to the plaintiff in the action for malicious prosecution. [5 ] The requirement of termination may be satisfied by showing, for instance, that the suit in question was abandoned or dismissed. And the criterion by which to determine which party was successful in the former action is the decree itself in that action. The court in the action for malicious prosecution will not make a separate investigation and retry each separate allegation without reference to the result of the previous suit as a whole, or decide upon the possible effect of matters not passed upon in the original suit.” (52 Am.Jur.2d, Malicious Prosecution, s 42, pp. 210-211, emphasis added.)

In Hurgren v. Union Mutual Life Ins. Co. (1904) 141 Cal. 585, 75 P. 168, a plaintiff brought a malicious prosecution action against a defendant who had initiated three civil suits against him. The suits had been dismissed, twice at the instigation of the defendant (plaintiff in those actions), once because that defendant failed to appear.

The court below granted the defendant in the malicious prosecution case a nonsuit on the ground that it had not been shown that the former suits terminated on the merits in favor of the plaintiff (defendant in those suits).

On appeal the court reversed, holding a final termination on the merits was not necessary. The dismissals constituted a sufficient legal ending of the suits to sustain the cause of action for malicious prosecution; whether those suits were brought maliciously and without probable cause were questions to be decided at trial. (Hurgren, supra, at pp. 590-591, 75 P. 168.)

The court explained the public policy underlying the principle. “The fact that such legal termination would not be a bar to another civil suit or criminal prosecution founded on the same alleged cause is no defense to the action for malicious prosecution; otherwise a party might be continuously harassed by one suit after another, each dismissed before any opportunity for a trial on the merits.” (Hurgren, supra, at pp. 587-588, 75 P. at p. 168.)

Jaffe v. Stone, supra, decided some 37 years later, cited and heavily relied upon Hurgren. (See 18 Cal.2d 146, 157-158, 114 P.2d 335.) In the case of Kennedy v. Byrum (1962) 201 Cal.App.2d 474, 480, 20 Cal.Rptr. 98, the rule was reaffirmed and applied where the underlying or former civil action was held to be Favorably terminated when the former suit was dismissed without prejudice. Kennedy v. Byrum relied upon and cited both Hurgren and Jaffe. Interestingly, the above quoted statement in Jaffe, “ ‘If, however, the dismissal is on technical grounds, for procedural reasons, or For any other reason not inconsistent with his guilt, it does not constitute a favorable termination,’ ” (emphasis added) was held by Files, P. J., in MacDonald v. Joslyn (1969) 275 Cal.App.2d 282, 289, 79 Cal.Rptr. 707, 711, Not to embrace a voluntary dismissal of a civil action. Files, P. J., ruled that “Such a voluntary dismissal, though expressly made ‘without prejudice,’ is a favorable termination which will support an action for malicious prosecution.” (At p. 289, 79 Cal.Rptr. at p. 711, citing Hurgren and Kennedy.)

While the principle is said to be well established and dates in California from Hurgren, the instant case, involving termination by a jury verdict on statute of limitation grounds, is apparently one of first impression factually.

There is no disputing the fact that appellant received at the hands of the malpractice jury a legal determination in his favor. We conclude: a jury verdict that a malpractice action is barred by a statute of limitations is a legal determination in favor of the defendant such that a subsequent action for malicious prosecution lies.

Present day public policy is in accord. We quote our Supreme Court, Wright, C. J., writing: “The malicious commencement of a civil proceeding is actionable because it harms the individual against whom the claim is made, and also because it threatens the efficient administration of justice. The individual is harmed because he is compelled to defend against a fabricated claim which not only subjects him to the panoply of psychological pressures most civil defendants suffer, but also to the additional stress of attempting to resist a suit commenced out of spite or ill will, often magnified by slanderous allegations in the pleadings. In recognition of the wrong done the victim of such a tort, settled law permits him to recover the cost of defending the prior action including reasonable attorney's fees (Stevens v. Chisholm (1919) 179 Cal. 557, 564, 178 P. 128; Eastin v. Bank of Stockton (1884) 66 Cal. 123, 125-126, 4 P. 1106), compensation for injury to his reputation or impairment of his social and business standing in the community (Ray Wong v. Earle C. Anthony, Inc. (1926) 199 Cal. 15, 18, 247 P. 894; Lerner v. Glickfeld (1960) 187 Cal.App.2d 514, 526, 9 Cal.Rptr. 686), and for a mental or emotional distress (Singleton v. Perry (1955) 45 Cal.2d 489, 495, 289 P.2d 794).

“The judicial process is adversely affected by a maliciously prosecuted cause not only by the clogging of already crowded dockets, but by the unscrupulous use of the courts by individuals ‘ . . . as instruments with which to maliciously injure their fellow men.’ (Teesdale v. Liebschwager et al. (1919) 42 S.D. 323, 325, 174 N.W. 620.)” (Bertero v. National General Corp., supra, 13 Cal.3d 43, 50-51, 118 Cal.Rptr. 184, 190, 529 P.2d 608, 614.)

We have no opinion and therefore express none as to the merits of appellant's cause; we simply direct the trial court to hear him on the merits.

Appellant also seeks review of the trial court's denial of his motion for partial summary judgment on the issue of respondents' probable cause to bring the malpractice action and pursue the appeal.

An order denying partial summary judgment is a nonappealable order reviewable on appeal from the final judgment in the matter. (See Code Civ.Proc., ss 904.1, 906.)

A motion for summary judgment shall be granted if all the papers submitted show no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Code Civ.Proc., s 437c.)

The affidavits submitted by respondents state their belief that plaintiff Bailey had a physician-patient relationship with appellant such that joining appellant as a defendant in the malpractice action was warranted and even mandated. Appellant disputes that belief. Clearly, the facts are in dispute as to whether respondents had probable cause to include appellant as a defendant; thus the trial court properly denied appellant's motion for partial summary judgment on that issue.

In the light of our conclusion herein, we are not required to decide appellant's several remaining contentions on appeal.

As we have explained, the trial court understandably erred in granting respondents' motion for summary judgment. The judgment based on said order is reversed.

Appellant is to recover costs.


1.  The procedural history and the facts of this appeal are sufficiently interrelated to warrant a single statement of the case, which follows.On June 29, 1967, a medical malpractice action was filed against appellant Dr. Jerome Lackner and other defendants. Respondents Edward R. LaCroix and Joseph G. Schumb, Jr., represented plaintiff Roscoe Bailey in that action.On January 27, 1970, a bifurcated medical malpractice trial commenced solely on the issue of the defense of statute of limitations.On February 3, 1970, the jury returned a verdict finding that the complaint against appellant Lackner was not filed within the requisite statutory period. The jury found for plaintiff against the other two defendants on their statute of limitations defense.On February 13, 1970, appellant filed a malicious prosecution action against plaintiff Bailey and his attorneys, respondents herein. Subsequent to the filing of that action, an appeal was taken by plaintiff from the judgment entered in the medical malpractice action.On March 20, 1970, respondents generally demurred, asserting that appellant failed to allege legal termination of the underlying malpractice action and that the jury verdict in that action did not constitute a decision favorable to appellant as defendant, a necessary element of a cause of action for malicious prosecution. Respondents also moved to dismiss the complaint as premature.On April 21, 1970, the court sustained the demurrer with leave to amend on the ground appellant had failed to allege the giving and entry of judgment. On April 23, 1970, appellant amended his complaint to allege judgment in his favor. On May 13, 1970, respondents again demurred on grounds of premature filing prior to the legal termination of the underlying action and lack of favorable termination.On October 2, 1970, the demurrer was sustained without leave to amend on the ground that appellant had not and could not state a cause of action against respondents. The order refers to a memorandum of decision filed August 3, 1970, anticipating the court's ruling. The memorandum is contained in the record on appeal in 1 Civil No. 29777, now in the archives in Sacramento. However, both parties indicate that the court in said memorandum of decision gave as the sole ground for its intended ruling prematurity. Judgment was ordered in favor of respondents.On appeal, the court reversed. In an unpublished opinion the appellate court noted that subsequent to the trial court's judgment of dismissal in the malicious prosecution action, the malpractice appeal was dismissed because a release signed by plaintiff prior to the filing of the appeal was held applicable to appellant Lackner (respondent in the malpractice appeal). The court concluded that although the trial court had correctly sustained the demurrer on the facts before it at the time, the subsequent dismissal of the malpractice appeal meant No appeal was ever pending and thus the malicious prosecution action was not premature.On April 10, 1973, respondents again demurred, alleging no favorable termination. The demurrer was overruled. On June 1, 1973, respondents answered the complaint.On February 2, 1976, appellant moved for partial summary judgment on the issues of favorable termination of the underlying malpractice action and lack of probable cause to have filed said action. On February 13, 1976, respondents moved for partial summary judgment on the same issues.On June 23, 1976, an order denying appellant's motions for summary judgment was filed. The order also denied respondents' motion on the issue of probable cause, but granted respondents' motion on the issue of favorable termination. The court stated that summary judgment on that issue necessarily resulted in judgment for respondents in the entire action.After the order was filed, appellants filed a motion requesting reconsideration of the ruling on summary judgment. The motion was denied.Appellant then petitioned for a writ of mandate requesting the appellate court to order the trial court to vacate its order denying appellant's motion for summary judgment. The petition was denied on December 20, 1976. Petition for hearing before the Supreme Court was denied on January 19, 1977.Judgment for the respondents pursuant to the order of June 23, 1976, was not entered until February 7, 1977. Notice of appeal was filed on February 24, 1977. On August 9, 1977, respondents moved to dismiss this appeal as untimely filed, contending that the order of June 23, 1976 was in effect the final judgment in this action. Although we denied the motion on September 7, 1977, respondents raised the identical argument in their reply brief. Respondents' contention is without merit. An order granting summary judgment is not an appealable order (Sinks v. Merrill (1963) 222 Cal.App.2d 200, 205, 35 Cal.Rptr. 113); the judgment entered on an order granting a motion for summary judgment is appealable. (Schulze v. Schulze (1953) 121 Cal.App.2d 75, 83, 262 P.2d 646, 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, s 59, p. 4074.) Judgment was entered on February 7, 1977; notice of appeal was timely filed on February 24, 1977.

5.  “Hurgren v. Union Mut. L. Ins. Co., 141 Cal. 585, (75 P. 168) . . . ”

WHITE, Presiding Justice.

FEINBERG and NEWSOM (Assigned by the Chairperson of the Judicial Council), JJ., concur.