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Court of Appeal, Second District, Division 2, California.

CUSTOM CRAFT CARPETS, INC., a California Corporation; Jason Taite and Elaine Taite, Plaintiffs and Appellants, v. Lynn MILLER, Michael Stanley, City of Los Angeles, Herschel T. Elkins, Michael R. Botwin and State of California, Defendants and Respondents.

Civ. 60699.

Decided: December 16, 1981

Burton Marks, Los Angeles, for plaintiffs and appellants. Ira Reiner, City Atty., Thomas C. Bonaventura, Sr., Pedro B. Echeverria, Asst. City Attys., for defendants and respondents Lynn Miller and Michael Stanley. George Deukmejian, Atty. Gen., Ronald A. Reiter, Deputy Atty. Gen., for defendants and respondents State of Cal., Evelle J. Younger, Herschel T. Elkins and Michael R. Botwin.

Plaintiffs instituted this action by the filing of a multi-count complaint captioned “Damages; Declaratory and Injunctive Relief; and Reasonable Attorneys Fees (sic).” Originally named as the defendants were the People of the State of California, the then Attorney General Evelle J. Younger, the then Los Angeles City Attorney Burt Pines, two named Deputy Attorneys General, and a named Deputy City Attorney.

In the course of the pleadings stage, plaintiffs reached the point of filing a second amended complaint after demurrers had been sustained to various counts of the complaint and as to certain of the defendants. Some of the demurrers were sustained without leave to amend.

The action was finally terminated in toto by the entry of a summary judgment in favor of defendants as to those counts of the complaint not previously disposed of. Plaintiffs have appealed. We affirm.

We have concluded that the entire proceedings, as we will point out, were initiated as a sham in an attempt to frustrate the office of the Attorney General and the City Attorney in their efforts to enforce certain consumer protection laws against plaintiffs. The appeal is frivolous.

Although the complaint in this action purports to state several “causes of action” including a violation of the Federal Civil Rights statute (42 U.S.C. s 1983), it is replete with conclusionary allegations, epithets and invective, and upon careful examination reveals that, the caption notwithstanding, it amounts to nothing more than an attempt to plead a cause of action for malicious prosecution of a civil action.

Stripped of its conclusionary allegations and epithets, the complaint simply alleges that the Deputy Attorneys General and the Deputy City Attorney cooperated together in an inquiry into the plaintiffs' advertising and marketing practices. In the course of said inquiry, plaintiffs were invited to the office of the Attorney General and were advised that the deputies intended to file a civil action against the plaintiffs. Plaintiffs were offered a copy of a proposed civil complaint along with a proposed stipulated judgment which would provide for the payment of $50,000 in civil penalties and an injunction against engaging in certain proscribed practices in the future.

In short, the deputies advised plaintiffs of their intent to institute a civil action and proposed a settlement of the case. Plaintiffs then assert their innocence and allege in conclusionary fashion that Deputy Attorneys General and Deputy City Attorney, along with their employers, knew that the charges were false and were proceeding on fabricated evidence.

It is interesting to note that one of the paragraphs in the complaint alleges that “At all times defendants knew that there was no evidence of many of the purported violations.” (Emphasis added.) That allegation in itself is pregnant with the admission that there was evidence of some of the violations.

Be that as it may, the novelty, if not the demonstrated frivolous nature of the plaintiffs' action, is that it was filed four days prior to the filing of the action about which it complains and shortly after the settlement discussion.

It is hornbook law that an action for malicious prosecution requires that there be a termination of the prosecution favorable to plaintiff and of course it was impossible under the circumstances for plaintiffs to plead or prove that element. We are unaware of any procedure for preventing the filing of an action by a defendant who claims that the action lacks merit. Nor do we know of any tort consisting of the mere filing of an action or a statement of intent to do so.

We have taken judicial notice of the action entitled “People v. Custom Craft, et al., Los Angeles Superior Court No. C 226056, the file of which discloses that on September 9, 1981, after a trial on the merits, the Superior Court of Los Angeles County issued a permanent injunction against the plaintiffs, which injunction embraced most, if not all, of the provisions contained in the proposed stipulated judgment.

The frivolous nature of these proceedings is further demonstrated by the fact that on the basis of nothing more than the filing of the instant action, plaintiffs attempted to disqualify the Attorney General and the City Attorney from representing the State and the City in the prosecuting of the action against the plaintiffs and from representing themselves and their deputies in this case on the grounds of a conflict of interest-a conflict created only by the plaintiffs' filing of this spurious action.

This is the very type of action which demonstrates the wisdom of the immunity provided to attorneys exercising their discretion in the course of their employment in representing governmental entities. (Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895; Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128; Wilson v. Sharp, 42 Cal.2d 675, 268 P.2d 1062; Gov.Code, ss 820.2, 821.6.)

Again viewing plaintiffs' complaint in its entirety and ignoring its epithets and semantical “gamesmanship,” along with the various declarations filed in connection with the motion for summary judgment, it is evident that the Attorney General, the City Attorney, and their deputies, were at all times performing in their respective capacities as attorneys for their respective governmental agencies. They were thus completely immune from any tort liability arising out of their conduct in preparing and initiating a civil action against plaintiffs.

If the ploy attempted by plaintiffs here were permitted to succeed, the entire justice machinery of the state, which is designed to protect the public from the criminals and predators among us, could be rendered impotent.

The vice of the present case is that it has succeeded to the extent that the state has been put to a considerable expense and delay in extricating itself from this piece of “legal flypaper,” not to mention the burden that has been placed on the courts.

While we are not able to measure the damage to the legal system or the expense to the state, we can impose sanctions for the taking of this frivolous appeal which hopefully will deter such conduct in the future.

The judgment is affirmed. In addition to the usual costs on appeal, plaintiffs are ordered to pay to the City of Los Angeles and the State of California the sum of $5,000 each.

COMPTON, Associate Justice.

ROTH, P. J., and BEACH, J., concur.