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

Edward A. DEVLIN, Plaintiff and Respondent, v. David M. FISHMAN, Defendant and Appellant.


Decided: February 28, 1986

David M. Fishman, Laguna Hills, in pro. per. Rutan & Tucker, Milford W. Dahl, Jr. and Carole Stevens, Costa Mesa, for plaintiff and respondent.

May an attorney be liable for malicious prosecution when he files a cross-complaint, knowing the applicable limitations period has expired?   No, a limitation defense does not satisfy the favorable termination requirement of the malicious prosecution action.

Devlin, an obstetrician/gynecologist, delivered Mrs. Elliott's baby in September 1975 at a Huntington Beach hospital.   The delivery was normal, but required Devlin to perform an episiotomy.   The day following her release, Mrs. Elliott experienced increasing pain from her episiotomy stitches.   She complained to Devlin of her severe pain.   Devlin told her that he believed she was merely suffering from post-delivery pains and prescribed aspirin with codeine.   That evening, she went into shock from an infection in her stitches.   She required an additional five-day hospital stay to cure the infection.

The Elliotts failed to pay the entire hospital bill.   The hospital assigned the unpaid portion, $715, to a collection agency.   On November 14, 1977, the agency filed a small claims action for $715.

In January 1978, the Elliotts, through their attorney Fishman, filed a cross-complaint to the collection action in municipal court entitled “CROSS–COMPLAINT FOR DAMAGES (MEDICAL MALPRACTICE).”   The cross-complaint charged Devlin with negligently examining and diagnosing Mrs. Elliott.

Devlin demurred to the cross-complaint on the ground that the statute of limitations for medical malpractice, one year (Code Civ.Proc., § 340.5), had run.1  The court sustained the demurrer without leave to amend, and, in March 1978, it dismissed the cross-complaint.   The Elliotts and Fishman took no appeal.   The agency subsequently prevailed on its claim for the $715.

In February 1979, Devlin filed an action in superior court against Fishman and the Elliotts for malicious prosecution, intentional infliction of emotional distress, conspiracy, negligence, negligent infliction of emotional distress, abuse of process, and deceit.   Fishman demurred to all seven charges, and the court overruled his demurrer entirely.   Fishman then sought a writ of mandate from this court.   We granted the writ;  however, our unpublished opinion discussed only the negligence counts, rejecting without comment Fishman's demurrer to the other counts.

Devlin proceeded to trial on the remaining counts, malicious prosecution, intentional infliction of emotional distress, and abuse of process.   At trial, Fishman's deposition was read into evidence wherein he admitted the malpractice limitations period had run when he filed the cross-complaint.

The trial court nonsuited Devlin on the intentional infliction and abuse of process claims.   The jury returned a verdict against Fishman for $3,000 in compensatory damages and $15,000 in punitive damages, against Mrs. Elliott for $200 in compensatory damages, and for $200 in compensatory damages in the malicious prosecution count.

Fishman raises several issues on appeal;  but his primary contention is that Devlin's limitations period demurrer to the cross-complaint, being procedural, was not a favorable termination of the underlying action on the merits, which is a prerequisite for a malicious prosecution action.   Devlin has cross-appealed, challenging the trial court's nonsuit of his intentional infliction of emotional distress and abuse of process actions.

 Malicious prosecution requires the institution of an action without probable cause, with malice, a favorable termination of the action, and some resulting injury by way of attorney's fees incurred in defense, mental distress, or injury to reputation.  (Harbor Insurance Co. v. Central National Ins. Co. (1985) 165 Cal.App.3d 1029, 1036, 211 Cal.Rptr. 902.)   Malicious prosecution may be based on a cross-complaint asserted in a prior action.  (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50–53, 118 Cal.Rptr. 184, 529 P.2d 608.)

 It is not enough to show that the prior suit was dismissed;  a favorable termination must indicate the innocence of the accused;  it must reflect the suit's lack of merit.  (Lackner v. LaCroix (1979) 25 Cal.3d 747, 750–751, 159 Cal.Rptr. 693, 602 P.2d 393.)   If, however, the dismissal is on technical grounds, for procedural reasons, or for any other reason not evidencing the accused's innocence, it is not a favorable termination.   (Ibid.)

Devlin argues that our previous writ decision, which denied Fishman relief from the malicious prosecution claim, necessarily holds all the elements of malicious prosecution are present.   We disagree.

 The law of the case doctrine requires the trial and reviewing courts to follow principles of law decided in a former appeal in the same case whether those earlier principles are correct or incorrect.  (E.g., Lindsey v. Meyer (1981) 125 Cal.App.3d 536, 541, 178 Cal.Rptr. 1.)   The doctrine applies to writ opinions when they determine the merits of an action.   (People v. Medina (1972) 6 Cal.3d 484, 491–492, 99 Cal.Rptr. 630, 492 P.2d 686;  Richer v. Superior Court (1976) 63 Cal.App.3d 748, 757, 134 Cal.Rptr. 52.)   For the doctrine to apply, the point of law involved must have been necessary to the decision, the matter must have actually been presented to the court, and application of the doctrine must not end in an unjust result.   (Richer v. Superior Court, supra, 63 Cal.App.3d at p. 758, 99 Cal.Rptr. 630, 492 P.2d 686.)   Further, where the particular point was essential to the decision, a necessary conclusion is that the court decided the point even though its opinion does not expressly mention it.  (Ibid.)

 Our previous writ opinion does not mention the merits of Devlin's malicious prosecution action.   It serves only to explain our order sustaining Fishman's demurrers to Devlin's two negligence actions.   No decision was made on whether a favorable termination of the prior cross-complaint had occurred, since such a determination was not necessary to our opinion.   Our decision held only Fishman was not entitled to a demurrer on the malicious prosecution action.

 We now determine whether the ruling on Devlin's demurrer to the malpractice cross-complaint was a favorable termination. Our Supreme Court recently stated a statute of limitations defense does not create a favorable termination for a subsequent malicious prosecution action.   (Lackner v. LaCroix, supra, 25 Cal.3d at pp. 751–752, 159 Cal.Rptr. 693, 602 P.2d 393.)   However, in a footnote the court observed:  “Lackner does not claim defendants prosecuted the underlying action for medical malpractice knowing the term of the applicable statute of limitations had run.   Thus, we do not confront the question of a defendant's right to relief when a knowingly ill-founded suit brought only to harass or vex the defendant fails for procedural reasons.  [Citations.]”  (Id., at p. 752, fn. 3, 159 Cal.Rptr. 693, 602 P.2d 393.)   The question is squarely presented here, since Devlin claims Fishman prosecuted the cross-complaint knowing the limitations period had expired.

We find the Lackner opinion itself resolves this issue.  “A bar raised by the statute of limitations does not reflect on the merits of the action and thus is not a favorable termination for purposes of a subsequent malicious prosecution action.   It would be unjust both to relieve plaintiff from defending the action because it was not brought before expiration of the limitation period, and to then allow him to use that termination as the basis for a malicious prosecution action․”  (Id., at p. 752, 159 Cal.Rptr. 693, 602 P.2d 393.)   Allowing a plaintiff to base a malicious prosecution action on a claim barred by the statute of limitations is “in effect an attempt to use the statute as a ‘sword.’   It does nothing to further the statute's purpose of protecting defendants from state claims.”  (Ibid.)  We hold these strong policy considerations preclude a subsequent malicious prosecution action based on a dismissal for limitations reasons, whether or not the underlying action was knowingly ill-founded.

 We note malicious prosecution is a “disfavored action” for public policy reasons.  (Babb v. Superior Court (1971) 3 Cal.3d 841, 847, 92 Cal.Rptr. 179, 479 P.2d 379.)   While filing a lawsuit knowing the limitations period to have run is a petty act which wastes judicial resources, such conduct should not give rise to a subsequent malicious prosecution action when the stale claim is dismissed for limitations reasons.   If a litigant wants to pursue a malicious prosecution action, he must eschew the procedural defense, forgoing the easy termination, and instead obtain a favorable judgment on the merits.   The use of a procedural defense precludes subsequent assertion of a malicious prosecution action.

On the cross-appeal Devlin contends the trial court erred in nonsuiting his claims for intentional infliction of emotional distress and abuse of process.   We disagree.

A trial court may grant a defendant's motion for nonsuit only if plaintiff's evidence would not support a jury verdict in plaintiff's favor.  (Ewing v. Cloverleaf Bowl (1978) 20 Cal.3d 389, 395, 143 Cal.Rptr. 13, 572 P.2d 1155.)   The court must accept plaintiff's evidence as true and indulge every legitimate inference in plaintiff's favor.  (Ibid.)

 The essential elements of abuse of process are an ulterior purpose and a willful act using process in a manner not proper in the regular conduct of the proceeding.  (Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 103–104, 101 Cal.Rptr. 745, 496 P.2d 817.)  “Some definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process, is required;  and there is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions.”  (Spellens v. Spellens (1957) 49 Cal.2d 210, 232, 317 P.2d 613;  Christensen v. Younger (1975) 47 Cal.App.3d 613, 618, 120 Cal.Rptr. 923.)

 Accepting Devlin's evidence and indulging every legitimate inference in his favor, he has not shown Fishman used the process for an improper purpose.   Fishman filed suit for the legitimate aim of obtaining money damages for an alleged wrong.   Although he knew his action was vulnerable to a limitations defense, he did not use the process for any end other than that which it was designed to accomplish, to wit, resolution of a dispute.   Neither the reasonableness of Fishman's actions, the merits of the claim, nor his intentions are relevant.   The relevant concern is Fishman's subsequent use of the validity obtained process.   Having shown no improper use of process, Devlin failed to state a cause of action for abuse of process.  (See Christensen v. Younger, supra, 47 Cal.App.3d at pp. 617–620, 120 Cal.Rptr. 923.)

 Nor did Devlin plead an action for intentional infliction of emotional distress.   Absent a physical injury, this tort will not lie unless plaintiff can show extreme and outrageous conduct which results in severe emotional distress.  (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 498, 86 Cal.Rptr. 88, 468 P.2d 216.)   Devlin presented no evidence that he suffered emotional distress so severe “that no reasonable man in a civilized society should be expected to endure it.”  (Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 397, 89 Cal.Rptr. 78;  Rest.2d Torts, § 46, com. j.)   Further, while we find Fishman's conduct unwise, we do not find it so extreme and outrageous as to be beyond all bounds of decency, nor was it especially calculated to cause emotional distress.  (Newby v. Alto Riviera Apartments (1976) 60 Cal.App.3d 288, 297, 131 Cal.Rptr. 547.)   The court did not err in nonsuiting this claim.

The judgment for malicious prosecution is reversed.   In all other aspects, the judgment is affirmed.


1.   Under section 340.5, the limitations period for an action against a health care provider is three years from the date of injury or one year from the date of discovery, whichever occurs first.   Since Mrs. Elliott knew of her “injury” when she entered the hospital for treatment of the infection, the limitations period began to run on that day.  (See Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 101–102, 132 Cal.Rptr. 657, 553 P.2d 1129.)

TROTTER, Presiding Justice.

CROSBY and WALLIN, JJ., concur.

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