CROWLEY v. KATLEMAN

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Court of Appeal, Second District, Division 5, California.

Arthur J. CROWLEY, Plaintiff and Appellant, v. Carole KATLEMAN et al., Defendants and Respondents.

No. B065670.

Decided: May 27, 1993

Crowley & Cuneo and Sarah J. Hoover, Los Angeles, for plaintiff and appellant. Hufstedler, Kaus & Ettinger, Mark R. McDonald and Dennis M. Perluss, Los Angeles, for defendants and respondents.

 Appellant Arthur J. Crowley, the attorney for and friend of decedent Beldon R. Katleman, appeals from a judgment after a demurrer was sustained to his complaint for malicious prosecution against respondents, decedent's wife, Carole Katleman, and her attorneys, Hufstedler, Miller, Kaus & Ettinger, a legal partnership, and attorneys Warren L. Ettinger and Dan Marmalefsky.   Respondents had contested decedent's will, which had left the bulk of decedent's estate to appellant.   The will contest had asserted six separate grounds to set aside the will and had terminated in appellant's favor when decedent's will had been admitted to probate.   In his complaint for malicious prosecution, appellant alleged that respondents had acted without probable cause in asserting five of the six grounds of the will contest.   Respondents demurred to appellant's malicious prosecution complaint contending that probable cause for the sixth will contest ground (undue influence) existed as a matter of law, thus, barring the complaint for malicious prosecution.   We conclude under the compulsion of Bertero v. National General Corp. (1974) 13 Cal.3d 43, 118 Cal.Rptr. 184, 529 P.2d 608 and Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937 that an action for malicious prosecution lies when but one of alternate theories of recovery is brought without probable cause.   Accordingly, we reverse.

FACTS

The allegations of the complaint may be summarized as follows.   Beldon Katleman and Carole Katleman were first married in March 1973.   Crowley represented Beldon Katleman in the Katlemans' 1975 divorce proceedings.   As a result of Crowley's representation of Beldon Katleman in the divorce proceedings, Carole Katleman became extremely hostile to Crowley.   On January 2, 1976, Beldon Katleman executed a will naming Crowley as his principal heir and executor of the will.   In August 1980, the Katlemans remarried and remained married until Beldon Katleman's death on September 28, 1988.   Beldon Katleman never, however, revoked his 1976 will, nor did he execute a subsequent will.

Shortly after Beldon Katleman's death, Crowley offered Carole Katleman one-half of her husband's estate.   She refused the offer.   On October 4, 1988, Crowley filed a petition to probate Beldon Katleman's 1976 will.   Crowley was named executor and appointed special administrator of the estate.   On October 28, 1988, Carole Katleman, represented by Hufstedler, Miller, Kaus & Ettinger, a legal partnership, and attorneys Warren L. Ettinger and Dan Marmalefsky, filed a contest of her husband's will.   The will contest, as amended, alleged six separate grounds to invalidate the will:  (1) undue influence arising out of an attorney-client relationship;  (2) revocation or destruction of the will by Beldon Katleman;  (3) the will was not Beldon Katleman's last will;  (4) lack of testamentary capacity;  (5) lack of due execution;  and (6) fraud.   The will contest was filed solely as a result of Carole Katleman's extreme hostility to Crowley, in a malicious attempt to have Crowley disbarred and to insure Crowley received nothing from her husband's estate.

During the pendency of the will contest, Crowley moved for summary adjudication that Carole Katleman, as a pretermitted spouse, did not have standing to contest the will;  the will had been duly executed;  Crowley had not prepared Beldon Katleman's will;  the will had been Beldon Katleman's voluntary act;  and the will was Beldon Katleman's last will.   Subsequently, Crowley withdrew his contention that Carole Katleman lacked standing to bring the will contest.1  The probate court summarily adjudicated that the will had been duly executed, but denied Crowley's motion as to the remaining issues.   After a trial, the will was admitted to probate and Crowley was appointed executor of Beldon Katleman's estate.   The probate court specifically found that although a presumption of undue influence had arisen from the confidential attorney-client relationship between Crowley and Beldon Katleman, the presumption had been rebutted by overwhelming evidence Beldon Katleman had voluntarily left his estate to Crowley, his best friend.

PROCEDURAL BACKGROUND

Appellant filed a malicious prosecution action against respondents.   Appellant alleged that the will contest had terminated in his favor and all of the grounds asserted in the will contest, except the undue influence ground, had been brought maliciously and without probable cause.   Respondents demurred to the malicious prosecution complaint on the ground that, as a matter of law, probable cause had existed to bring the will contest on the ground of undue influence as a result of the presumption of undue influence arising out of the confidential attorney-client relationship.   Respondents also contended in their demurrer that the probate court's denial of appellant's motion for summary adjudication of issues, except as to the lack of due execution ground, established probable cause for the other grounds.   Respondents further contended that testimony of two of the witnesses, during the trial of the will contest, established probable cause for the lack of due execution ground.   Finally, respondents contended that probable cause as to one of the alternate grounds for the will contest was sufficient to defeat the malicious prosecution action.   Respondents requested that the trial court take judicial notice of the probate court proceedings.

The trial court ruled as follows:  “Demurrer is sustained without leave to amend.   The Court takes judicial notice of the prior case under Evidence Code [section] 452[, subdivision] (d), and bases its decision on Sheldon Appel Co. v. Albert & Oliker, 47 Cal.3d 863 [254 Cal.Rptr. 336, 765 P.2d 498] (1989) and Freidberg v. Cox, 197 Cal.App.3d 381 [242 Cal.Rptr. 851] (1987).”

DISCUSSION

Alternate Theories

 Appellant's claim is for malicious prosecution.   The filing of a will contest without probable cause can create a basis for a malicious prosecution action.  (E.g., MacDonald v. Joslyn (1969) 275 Cal.App.2d 282, 79 Cal.Rptr. 707;  Fairchild v. Adams (1959) 170 Cal.App.2d 10, 338 P.2d 191.)

“The common law tort of malicious prosecution originated as a remedy for an individual who had been subjected to a maliciously instituted criminal charge, but in California, as in most common law jurisdictions, the tort was long ago extended to afford a remedy for the malicious prosecution of a civil action.   [Citations.]  Under the governing authorities, in order to establish a cause of action for malicious prosecution of either a criminal or civil proceeding, a plaintiff must demonstrate ‘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 [citations];  (2) was brought without probable cause [citations];  (3) was initiated with malice [citations].’  [¶] Although the malicious prosecution tort has ancient roots, courts have long recognized that the tort has the potential to impose an undue ‘chilling effect’ on the ordinary citizen's willingness to report criminal conduct or to bring a civil dispute to court, and, as a consequence, the tort has traditionally been regarded as a disfavored cause of action․  [T]he elements of the tort have historically been carefully circumscribed so that litigants with potentially valid claims will not be deterred from bringing their claims to court by the prospect of a subsequent malicious prosecution claim.”  (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 871–872, 254 Cal.Rptr. 336, 765 P.2d 498.)  “[W]e do not believe it advisable to abandon or relax the traditional limitations on malicious prosecution recovery.”  (Id. at p. 874, 254 Cal.Rptr. 336, 765 P.2d 498.)

 Probable cause is a question of law to be determined by the court on the basis of facts which are either undisputed or have been determined by the jury.  (Sheldon Appel Co., supra, 47 Cal.3d at pp. 875–877, 254 Cal.Rptr. 336, 765 P.2d 498.)  “[T]he probable cause element calls on the trial court to make an objective determination of the ‘reasonableness' of the defendant's conduct, i.e., to determine whether, on the basis of the facts known to the defendant, the institution of the prior action was legally tenable.”  (Id. at p. 878, 254 Cal.Rptr. 336, 765 P.2d 498.)   The institution of the prior action is legally tenable if “any reasonable attorney would have thought the claim tenable.”  (Id. at p. 886, 254 Cal.Rptr. 336, 765 P.2d 498.)

Respondents contend probable cause existed to bring the will contest on the ground of undue influence as a result of a presumption of undue influence arising from an attorney-client relationship.   Respondents further contend the existence of probable cause to assert one of alternate grounds of a will contest is sufficient to defeat a malicious prosecution action based on the prosecution of the will contest.   Accordingly, they argue the trial court did not err in sustaining their demurrer.

 An action for malicious prosecution lies when but one of alternate theories of recovery is maliciously asserted.  (Bertero, supra, 13 Cal.3d at p. 57, fn. 5, 118 Cal.Rptr. 184, 529 P.2d 608.)   In Bertero, the plaintiff employee sued the defendant employers for declaratory relief and damages resulting from breach of an employment agreement.   The defendants answered, asserting affirmative defenses of lack of consideration, duress, and undue influence.   The defendants also cross-complained, seeking recovery of salary paid to the plaintiff on the same grounds asserted in the answer.   The Supreme Court held that a malicious prosecution action would lie for the filing of a cross-complaint, even though the allegations of the cross-complaint were intimately related to the cause asserted in the complaint and even though the defendants were obligated to assert the cross-complaint as an affirmative defense or be deemed to have waived it.  (Id. at pp. 50–53, 118 Cal.Rptr. 184, 529 P.2d 608.)   The Supreme Court also concluded that an action would lie if one of three alternate theories asserted in the cross-complaint had been brought without probable cause, even if probable cause with respect to the other two theories existed.  (Id. at pp. 55–58, 118 Cal.Rptr. 184, 529 P.2d 608.)

In rejecting the contention that probable cause existed if the defendants had grounds for asserting any one of the three theories, the Supreme Court stated:  “A plaintiff acting in good faith may safely sue on alternative theories after full disclosure to counsel when he possesses a reasonable belief in the validity of each of those theories.   If his original pleading (or cross-pleading) advances a theory which subsequent research or discovery proves to be untenable the pleading may be amended.   We see no reason for permitting plaintiffs and cross-complainants to pursue shotgun tactics by proceeding on counts and theories which they know or should know to be groundless.”   (Bertero, supra, 13 Cal.3d at p. 57, 118 Cal.Rptr. 184, 529 P.2d 608, italics in original.)

The Supreme Court in Bertero also stated:  “Our conclusion that an action for malicious prosecution lies when but one of alternate theories for recovery is maliciously asserted disposes of a further contention of [the defendants].   They argue a statutory presumption of a lack of consideration and undue influence ․ in the creation of the employment contract in favor of [the plaintiff].   Their theories of recovery in their cross-pleading, however, encompassed duress as well.   Whatever the merits of the claimed presumptions, and we do not reach that issue, the cause of action for malicious prosecution could be predicated on maliciously asserted charges that [the plaintiff] exercised duress in obtaining the employment contract.”   (Bertero, supra, 13 Cal.3d at p. 57, fn. 5, 118 Cal.Rptr. 184, 529 P.2d 608.)

Bertero relied on Albertson v. Raboff (1956) 46 Cal.2d 375, 295 P.2d 405 and Singleton v. Perry (1955) 45 Cal.2d 489, 289 P.2d 794.   In Albertson, the Supreme Court concluded that an action for malicious prosecution would lie on a claim of fraudulent conveyance of real property despite the fact that there had been probable cause to bring a joined claim to obtain the balance due on a promissory note.  (Albertson, supra, at pp. 382–385, 295 P.2d 405.)

In Singleton, an individual swore to two criminal complaints against the plaintiff, one for grand theft auto and one for theft of personal property.   After, criminal charges were dismissed against the plaintiff as to both criminal complaints, the plaintiff brought two civil actions for malicious prosecution (consolidated for trial) arising from the two criminal complaints.   Plaintiff prevailed on only one of the actions.  Singleton did not question the proposition that a malicious prosecution action would lie if one, but not both, of the criminal complaints lacked probable cause.  “ ‘The authorities show, ․ that, in order to maintain [a malicious prosecution action] “it is not necessary that the whole proceeding be utterly groundless, for, if groundless charges are maliciously and without probable cause, coupled with others which are well founded, they are not on that account less injurious, and, therefore, constitute a valid cause of action.”  [Citations.]’ ”  (Singleton, supra, 45 Cal.2d at pp. 497–498, 289 P.2d 794.)

Respondents contend that Bertero can be distinguished and subsequent Court of Appeal cases (Freidberg v. Cox (1987) 197 Cal.App.3d 381, 242 Cal.Rptr. 851 and Paramount General Hospital Co. v. Jay (1989) 213 Cal.App.3d 360, 261 Cal.Rptr. 723) establish a new rule for determining the probable cause element of the malicious prosecution tort, the “primary right” rule.   Respondents' analysis is flawed for a number of reasons which we will discuss.

 The tort of malicious prosecution has three elements:  probable cause, malice, and favorable termination.  Freidberg and Paramount are concerned with the favorable termination element of a malicious prosecution cause of action.   The probable cause element is not an issue in either case.

In Freidberg, one attorney sued another in connection with a dispute over the division of attorney fees resulting from a favorable medical malpractice judgment.   The suit over the fees was maintained on three alternate theories:  (1) joint venture;  (2) quantum meruit;  and (3) tortious interference with contract.   A nonsuit was granted as to the joint venture and tortious interference with contract causes of action.   The suit went to the jury on the quantum meruit cause of action and the jury returned a verdict in favor of plaintiff for a portion of the fees plaintiff had requested.   The defendant then brought a malicious prosecution action against the plaintiff alleging that the joint venture and tortious interference with contract causes of action had been maliciously prosecuted.

 The Court of Appeal concluded that the prior action concerning attorney fees had not been terminated in favor of the malicious prosecution plaintiff.   In arriving at this conclusion, the Freidberg court relied on the primary right theory of pleading.  “Under the ‘primary right’ theory of pleading followed in California, a cause of action is based upon the injury suffered by a plaintiff, regardless of the particular legal theory or theories upon which plaintiff seeks redress.  [Citation.]  Where the complaint alleges a violation of different primary rights, it states different causes of action.   [Citation.]  ․ ‘[A] given set of facts may give rise to the violation of more than one “primary right,” thus giving a plaintiff the potential of two separate lawsuits against a single defendant.’  [Citation.]  [¶] ‘When one ․ suffers a single ․ injury by reason of the wrongful act of [another], there is ordinarily one cause of action.  [Citation.]  This is so regardless of alternative legal theories of recovery․’ ”  (Freidberg, supra, 197 Cal.App.3d at p. 388, 242 Cal.Rptr. 851, italics in original.)   If alternate theories are not separable and independent, they give rise to a single cause of action under the primary right theory of pleading.  (Ibid.)  Under the facts of Freidberg, the suit for attorney's fees involved one injury and one cause of action.   Plaintiff had been awarded a portion of the attorney's fees requested.   Accordingly, the action did not terminate in defendant's favor and a malicious prosecution action could not be maintained by defendant.  (Id. at pp. 388–389, 242 Cal.Rptr. 851.)

The Freidberg court expressly noted the alternate theory rule of Bertero and found that Bertero related to the probable cause element of a malicious prosecution action and had not altered the rule that there must be a favorable termination of the entire prior action in order for a malicious prosecution action to be maintained.  (Freidberg, supra, 197 Cal.App.3d at pp. 386–387, 242 Cal.Rptr. 851.)   The Freidberg court also distinguished Albertson, on the basis that Albertson involved severable and ancillary proceedings.   (Id. at p. 387, 242 Cal.Rptr. 851.)

In Paramount General Hospital Co., supra, 213 Cal.App.3d 360, 261 Cal.Rptr. 723, this District adopted Freidberg 's primary right analysis in deciding whether a prior action had been terminated in favor of the malicious prosecution plaintiff.   The plaintiff in the prior action had asserted 18 separate causes of action against the malicious prosecution plaintiff and had not prevailed on 15 of them.   The Court of Appeal held that the causes of action on which the malicious prosecution plaintiff had prevailed in the prior action were severable and, therefore, the severable proceedings had been favorably terminated.   The Paramount court held a malicious prosecution action will lie following “a partial favorable termination of a severable underlying action․”  (Id. at p. 372, 261 Cal.Rptr. 723;  accord Jenkins v. Pope (1990) 217 Cal.App.3d 1292, 266 Cal.Rptr. 557.)

In addition to the fact the cases cited by respondents concern the favorable termination element and not the probable cause element of the tort of malicious prosecution, respondents' arguments also fail to take into account that Bertero is a Supreme Court case which has not been overruled, while the cases cited by respondents are Court of Appeal decisions.  Bertero was decided by the Supreme Court in 1974.   In 1989, the Supreme Court revisited the probable cause element of malicious prosecution in Sheldon Appel Co., supra, 47 Cal.3d 863, 254 Cal.Rptr. 336, 765 P.2d 498, where the Supreme Court addressed the issues of the role of the trial court and the jury in probable cause determinations, the objective or subjective nature of the probable cause element, the relevance of attorney research to the probable cause element, the relevance of expert testimony to the probable cause element, and the appropriate probable cause standard.   The Supreme Court did not, however, revisit the alternate theory rule of Bertero, but did cite Bertero with approval for other reasons.   Moreover, Court of Appeal decisions, subsequent to Bertero, have uniformly applied the Bertero alternate theory rule to the probable cause element of malicious prosecution actions.  (Leonardini v. Shell Oil Co. (1989) 216 Cal.App.3d 547, 568, 264 Cal.Rptr. 883;  Williams v. Coombs (1986) 179 Cal.App.3d 626, 644, 224 Cal.Rptr. 865, disapproved on other grounds in Sheldon Appel Co., supra, 47 Cal.3d at pp. 882–883 & fn. 9, 254 Cal.Rptr. 336, 765 P.2d 498;  Aronow v. La Croix (1990) 219 Cal.App.3d 1039, 1048, fn. 4, 268 Cal.Rptr. 866;  cf. Balog v. LRJV, Inc. (1988) 204 Cal.App.3d 1295, 1305–1306, 250 Cal.Rptr. 766.)   We are bound by the holding of Bertero under Auto Equity Sales, supra, 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937.

 If we were not so constrained by binding Supreme Court authority, we would consider whether the same rule should be applicable to both the probable cause element and the favorable termination element of malicious prosecution actions.   To establish a cause of action for malicious prosecution, the plaintiff must plead and prove that the “prior action” was terminated in the malicious prosecution plaintiff's favor and the “prior action” was brought without probable cause.  (Bertero, supra, 13 Cal.3d at p. 50, 118 Cal.Rptr. 184, 529 P.2d 608.)   Both elements are concerned with the “prior action”—was it favorably terminated and was it brought without probable cause.   It would appear to make a great deal of sense to define the term “prior action” identically for both elements.

On the other hand, appellate opinions have stated that the two elements are different.  (Freidberg, supra, 197 Cal.App.3d at pp. 384–389, 242 Cal.Rptr. 851;  Warren v. Wasserman, Comden & Casselman (1990) 220 Cal.App.3d 1297, 1303, 271 Cal.Rptr. 579.)  “[Plaintiff] confuses the elements of probable cause and favorable termination.   Whether a prior action was legally tenable goes to the issue of probable cause, that is, did the defendant have an honest and reasonable belief in the truth of the allegations.  [Citation.]  Whether a prior action was terminated favorably tends to show the innocence of the defendant in the prior action [citations], and is not affected by the objective tenability of the claim.   In short, these two elements of the malicious prosecution tort serve different purposes, and the legal tenability of the underlying action is not the standard by which to judge whether the action was terminated in [plaintiff's] favor.”  (Warren, supra.)

In our view, although the two elements are different and serve different purposes, the different purposes are not facilitated by defining the term “prior action,” one way for purposes of the probable cause element and another for purposes of the favorable termination element.   It is the same prior action which must have been brought without probable cause and which must have terminated in the malicious prosecution plaintiff's favor.  (Paramount General Hospital Co., supra, 213 Cal.App.3d at p. 372, fn. 4, 261 Cal.Rptr. 723 [“Although Bertero 's denunciation of ‘shotgun tactics' arose in the context of a discussion of probable cause for malicious prosecution [citation], its rationale is equally applicable to the element of favorable termination.”].)   That being said, the question arises as to the proper definition of the term prior action.

 It is our opinion that the primary right rule, as articulated in Freidberg and Paramount, is preferable to Bertero's alternate theory rule.   Under the alternate theory rule, a plaintiff in a prior action who does not prevail is subject to a malicious prosecution action if any one of a number of alternate theories is brought without probable cause.   Thus, for example, an employee who has a meritorious suit for wrongful termination may assert the alternate theories of wrongful termination in violation of public policy, breach of a written contract, breach of an oral contract, breach of an implied-in-fact contract, and intentional infliction of emotional distress.   If this employee does not prevail, the employee is subject to a malicious prosecution action if even a single theory was not brought with probable cause.   This is despite the fact that the wrongful termination action, as a whole, was meritorious, although ultimately not successful.   Of course, such an individual may not be liable for malicious prosecution if he or she acted without malice.   However, malice may be inferred from the absence of probable cause.  (Leonardini, supra, 216 Cal.App.3d at p. 567, 264 Cal.Rptr. 883.)   Moreover, malice is an intensely factual issue, which frequently may not be resolvable short of a jury trial.   Further, the apportionment of damages in such cases will often be extremely difficult, if not completely speculative.   What damages does a malicious prosecution plaintiff sustain by virtue of a baseless theory if the primary right cause of action is brought with probable cause?   Thus, the alternate theory rule fosters additional, perhaps frivolous, and frequently trivial litigation.   It is also inconsistent with modern pleading practice where alternative factual theories are pled when it is difficult to determine which factual theory most accurately reflects the events.

Under the primary right rule, such a wrongful termination plaintiff will not be subject to a malicious prosecution action if the underlying “cause of action,” consisting of “a primary right possessed by the plaintiff, a corresponding primary duty owed by the defendant, and a delict or wrong done by the defendant” (Jenkins, supra, 217 Cal.App.3d at p. 1299, fn. 2, 266 Cal.Rptr. 557), is brought with probable cause.   A “cause of action” for wrongful termination implicates a single primary right and, thus, could not be the basis of a malicious prosecution action even if one or more of the alternate theories under which the cause of action is brought is meritless.   The primary right rule reasonably accommodates the competing policies of encouraging citizens to bring civil disputes to the courts and protecting defendants from baseless actions.  (Paramount General Hospital Co., supra, 213 Cal.App.3d at p. 372, 261 Cal.Rptr. 723.)

Such a rule also furthers the conclusions of the Supreme Court concerning the continuing disfavored status of malicious prosecution lawsuits as articulated in Sheldon Appel Co., supra, 47 Cal.3d at p. 873, 254 Cal.Rptr. 336, 765 P.2d 498:  “ ‘In seeking a remedy for the excessive litigiousness of our society, we would do well to cast off the limitations of a perspective which ascribes curative power only to lawsuits.’  [Citation.]  While the filing of frivolous lawsuits is certainly improper and cannot in any way be condoned, in our view the better means of addressing the problem of unjustified litigation is through the adoption of measures facilitating the speedy resolution of the initial lawsuit and authorizing the imposition of sanctions for frivolous or delaying conduct within that first action itself, rather than through an expansion of the opportunities for initiating one or more additional rounds of malicious prosecution litigation after the first action has been concluded.”  (Accord, Rubin v. Green (1993) 4 Cal.4th 1187, 1197–1200, 17 Cal.Rptr.2d 828, 847 P.2d 1044;  Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1131, 270 Cal.Rptr. 1, 791 P.2d 587;  cf. Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1169, 232 Cal.Rptr. 567, 728 P.2d 1202.)

We note, that the results of Albertson (suit for the balance due on a promissory note and fraudulent conveyance of real property) and Singleton (two separate criminal complaints) could have been reached under the primary right rule.  Bertero, however, cannot be reconciled with the primary right rule.

 We next apply Bertero 's alternate theory rule to the facts of this case.   Respondents' demurrer challenged appellant's malicious prosecution complaint by arguing that the existence of probable cause to assert the ground of undue influence constituted probable cause to bring the will contest even if the remaining grounds were not legally tenable.   Respondents' contention is clearly erroneous under Bertero and confuses the cases which discuss “probable cause” with those which discuss “favorable termination.”   Accordingly, even if respondents had probable cause to allege the will should not be admitted to probate because it was procured by undue influence, it would not prevent a malicious prosecution action being brought on the alternate grounds asserted in the will contest, if those alternate grounds were asserted without probable cause.2

This case is virtually identical to Bertero.   In Bertero, cross-complainants sought to invalidate an employment contract on the alternate theories of lack of consideration, duress, and undue influence.   In this case, respondents sought to invalidate a will on grounds of undue influence, fraud, lack of testamentary capacity, etc.   In each case, the action was terminated entirely favorably to the malicious prosecution plaintiff.   In Bertero, probable cause may have existed as to two of the theories by virtue of statutory presumptions.   Here, probable cause may exist as to the undue influence theory by virtue of a presumption.   The holding of Bertero is controlling.

A different result would be obtained if we applied the primary right rule to the facts of this case.   A contest of a will implicates only a single primary right.   It is an “in rem” action and relates to a single issue, whether a particular will should be admitted to probate.   Thus, under a primary right rule, the existence of probable cause to bring the will contest on the ground of undue influence would defeat a malicious prosecution action arising from the will contest.

Order Partially Denying Motion for Summary Adjudication

 Respondents contend that even if probable cause must exist as to each ground asserted in a will contest in order to defeat a malicious prosecution action, the probate court's order denying appellant's motion for summary adjudication, together with other probate court records of which we may take judicial notice, established probable cause to assert each of the grounds of the will contest.   Contrary to respondents' contention, the probate court's ruling on appellant's motion for summary adjudication of issues does not, as a matter of law, demonstrate respondents had probable cause to bring the will contest.

In the underlying will contest, appellant's motion for summary adjudication of issues was granted only on the issue of whether the will was executed in the manner and form required by law.   On the other issues, the probate court found triable issues of fact existed.   Respondents argue that probable cause was demonstrated, as a matter of law, because the probate court otherwise denied appellant's motion for summary adjudication of facts concluding triable issues of fact existed.   Respondents equate the existence of triable issues of fact with legal tenability.   This is not the law.

Lucchesi v. Giannini & Uniack (1984) 158 Cal.App.3d 777, 205 Cal.Rptr. 62, rejected the identical argument.  Lucchesi involved a malicious prosecution action in which it was argued the trial court's denial of the defendants' motions for summary judgment and nonsuit in the prior action established, as a matter of law, that the defendants had probable cause to bring the prior action.   The Court of Appeal held that neither interim ruling conclusively established probable cause for instituting the prior action.   The Lucchesi decision was based on the fact that neither a denial of a summary judgment motion nor a denial of a motion for nonsuit is a hearing on the merits.

We are unpersuaded by respondents' attack on Lucchesi.   The basis of the Lucchesi court's conclusion does not depend upon an erroneous interpretation of “probable cause.”   In Sheldon Appel Co., supra, 47 Cal.3d 863, 254 Cal.Rptr. 336, 765 P.2d 498, the Supreme Court did not disapprove Lucchesi, but held only that it was for the court not the jury to decide the existence of probable cause based on undisputed facts or facts determined by the jury.   Sheldon Appel Co. did not hold that the issue of probable cause was entirely a legal matter.   The denial of appellant's summary adjudication motion in the will contest indicated that on the evidence before it, the probate court found triable issues of fact.   Such a finding does not necessarily equate with an action being legally tenable.   Even if apparent factual controversies exist, it may nevertheless have been legally untenable to bring the suit, such as where the plaintiff is aware of the falsity of the factual assertions.

Judicial Notice

 This matter comes to us after the court sustained respondents' demurrer without leave to amend.   A demurrer lies when on the face of the complaint it is shown the plaintiff cannot state a cause of action.  (Code Civ.Proc., § 430.30.)   In evaluating the propriety of the sustaining of the demurrer, we look only at the complaint and assume the factual allegations in the complaint can be proven (Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 151, fn. 1, 233 Cal.Rptr. 308, 729 P.2d 743;  Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496, 86 Cal.Rptr. 88, 468 P.2d 216), however improbable they may seem.   We are not permitted to evaluate extrinsic evidence (Code Civ.Proc., § 430.30) other than those matters of which we may take judicial notice.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.)

Respondents suggest that, in addition to the order of the probate court denying the motion for summary adjudication of issues, other probate court records of which we may take judicial notice establish, as a matter of law, that respondents had probable cause to assert the grounds of undue influence and lack of due execution.   It appears respondents are asking us to take judicial notice of the factual findings of the probate court in upholding the validity of the will and the testimony of witnesses that they were not sure if they saw Beldon Katleman sign the will.   We first address if we may take judicial notice of the factual findings of the probate court.

In upholding the validity of the will, the probate court found there was a presumption of undue influence.   Respondents suggest this becomes “fact” of which we may take judicial notice, and therefore, probable cause existed to bring the entire action.   We have already demonstrated that even if there was probable cause to assert the ground of undue influence, this would not result in probable cause to assert other alternate grounds of the will contest.   Accordingly, we need not reach this issue.3

 Respondents also ask us to take judicial notice of the testimony of two trial witnesses in the will contest that they could not remember if the will had been signed by decedent in their presence.   We may take judicial notice of the fact that the witnesses testified, and the nature of their testimony, without taking judicial notice of the truth of the testimony.  (Magnolia Square Homeowners Assn. v. Safeco Ins. Co. (1990) 221 Cal.App.3d 1049, 1057, 271 Cal.Rptr. 1 [proper to take judicial notice of information for non-hearsay purposes].)   However, this does not establish, as a matter of law, that respondents had probable cause to bring the action for improper execution.   Before we could conclude the existence of the testimony constitutes probable cause, we would need additional facts, such as whether respondents were aware of this information at the time the will contest was filed.   Moreover, once again, improper execution was only one of the theories raised in the will contest and probable cause to bring this theory does not defeat the malicious prosecution action.

CONCLUSION

We reverse the trial court's sustaining of the demurrer to appellant's malicious prosecution complaint solely under the compulsion of the Supreme Court's alternate theory rule for the probable cause element of malicious prosecution as articulated in Bertero, supra, 13 Cal.3d 43, 118 Cal.Rptr. 184, 529 P.2d 608.   Were we not so bound, we would adopt the primary right rule of Freidberg, supra, 197 Cal.App.3d 381, 242 Cal.Rptr. 851 and Paramount General Hospital Co., supra, 213 Cal.App.3d 360, 261 Cal.Rptr. 723 for the probable cause element.   Applying the primary right rule, we would conclude that the will contest implicated a single primary right and the existence of probable cause to assert the undue influence ground defeats a malicious prosecution action arising out of the will contest;  we would affirm the judgment.  Bertero 's alternate theory rule invites a multitude of unwarranted litigation, encourages excessive and repetitive litigation, discourages citizens from bringing meritorious civil disputes to the courts, and is inconsistent with modern pleading practice.   The primary right rule suffers from none of these deficiencies and adequately protects defendants from unmeritorious lawsuits.

DISPOSITION

The judgment is reversed.   Respondents shall bear appellant's costs on appeal.

FOOTNOTES

1.   Division Three of this District has recently affirmed the grant to Carole Katleman of a share of Beldon Katleman's estate as a pretermitted spouse pursuant to Probate Code section 6560.  (Estate of Katleman (1993) 13 Cal.App.4th 51, 16 Cal.Rptr.2d 468.)   This decision has no effect on Crowley's malicious prosecution action.

2.   Respondents also suggest that since a probate matter is “in rem” and all grounds for a will contest must be brought in the same action, we must evaluate the claim as one undivided unit.   This conclusion neglects the specific discussion in Bertero, in which the Supreme Court found that a malicious prosecution action would lie for a compulsory cross-complaint even though the facts of that cross-complaint were intimately related to the defense of the complaint, the grounds were asserted as affirmative defenses in the answer, and the claims would have been waived had they not been asserted.   Thus, the mandatory nature of the claims does not preclude a malicious prosecution action.

3.   A recent case addresses and rejects the proposition that a court may take judicial notice of factual findings of a trial court.   (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 8 Cal.Rptr.2d 552.)

GRIGNON, Associate Justice.

TURNER, P.J., and GODOY PEREZ, J., concur.