TOFF PAUL v. SIEGRIST DUNCAN (1987)

The issue is whether the applicable one year statute of limitations (Code Civ.Proc. § 340, subd. (3)) bars this malicious prosecution action against the law firm of Toff & Paul and partner Randolph M. Paul (petitioners).   Plaintiff/real party in interest Alice P. Siegrist-Duncan brought this action charging petitioners with malicious prosecution of a will contest.   Resolution of the issue turns on whether the period is tolled during the time after decision in the Court of Appeal in the underlying action, when a petition for hearing to the California Supreme Court could have been filed.   No case appears to have resolved this precise issue, but we have concluded that there is no tolling on account of the non-finality of the decision of the Court of Appeal in the underlying action.   Accordingly this action should have been dismissed on petitioners' demurrer, and a writ of mandate is suitable to compel entry of dismissal.

FACTS

The underlying action (the will contest) resulted in a superior court decision filed on April 18, 1984.   Notice of appeal was filed June 14, 1984.   On January 27, 1986, the Court of Appeal, First District, Division Three, filed its opinion deciding the appeal.   No petition for hearing to the California Supreme Court was ever filed.   The decision became final as to the Court of Appeal 30 days after filing, on February 26, 1986.   The time within which a petition for hearing could have been filed was 40 days after filing of the opinion, and the Supreme Court could have granted review on its own motion within 30 days after the Court of Appeal decision became final as to that court, i.e., by March 28, 1986.  (Cal.Rules of Court, rule 28 (a) and (b).)   The remittitur in fact issued on April 7, 1986.   The complaint in the malicious prosecution action was filed on December 26, 1986.

Petitioners demurred on the basis the one year limitations period had expired.

DISCUSSION

Plaintiff says the action was timely filed because the limitations period was tolled while the appeal was pending, and the appeal is considered to be pending until the court of appeal's decision is final for all purposes.   Under that theory, the limitations period was tolled from June 14, 1984, when the appeal was noticed, until 30 days after finality of the Court of Appeal's opinion, i.e., March 28, 1986.   Plaintiff would be charged with the 57 days from entry of judgment, April 18, 1984, to filing of the appeal;  as well as the time between March 28, 1986, and December 26, 1986, a total of nine months.   The total time—nine months plus 57 days, or about 11 months—would thus be less than one year and the action would be timely.

Petitioners, however, say there was no tolling except for the period between June 14, 1984, and January 27, 1986, when the appeal was actually pending in the court of appeal.   Under that theory, the time expired would be 57 days between judgment and notice of appeal, plus 333 days from January 27, 1986, to the filing of the complaint December 26, 1986, a total of 390 days, making the action late.

 Although no case appears to resolve the precise issue, petitioners' position is correct based on the underlying principles which have been decided.   First, the malicious prosecution action accrues upon favorable termination of the underlying action, which occurs when judgment in the trial court is rendered in favor of the malicious prosecution victim.  (Gibbs v. Haight, Dickson, Brown & Bonesteel (1986) 183 Cal.App.3d 716, 719, 228 Cal.Rptr. 398;  Scannell v. County of Riverside (1984) 152 Cal.App.3d 596, 615–616, 199 Cal.Rptr. 644;  Soble v. Kallman (1976) 57 Cal.App.3d 719, 721, 129 Cal.Rptr. 373;  3 Witkin, Cal.Procedure (3d ed. 1985) Actions § 400, p. 430.)   The time to file the malicious prosecution action begins to run upon entry of the trial court judgment, even though it may be appealed:  “The fact that the time for appeal from the judgment has not yet run does not prevent the suit and therefore does not stay the running of the one-year statute of limitations until expiration of the time for appeal.”  (Gibbs, supra, 183 Cal.App.3d at p. 719, 228 Cal.Rptr. 398, citing Soble, supra, 57 Cal.App.3d at pp. 721–723, 129 Cal.Rptr. 373, and 3 Witkin, op. cit. supra.)   As the Soble court puts it, “[l]ack of finality in the underlying judgment is a matter for abatement or defense.”  (Soble v. Kallman, supra, 57 Cal.App.3d 719, 722, 129 Cal.Rptr. 873.)

 The first principle, then, is that non-finality of the original judgment does not toll the statute.   Thus, in Gibbs, the decision explicitly counted as time running against the plaintiff the period of 53 days from the time of entry of judgment to the date of filing of notice of appeal.   (Gibbs, supra, 183 Cal.App.3d at p. 722, 228 Cal. Rptr. 398.)   The decision went on to point out the time was tolled during the actual pendency of the appeal, but commenced to run again when the appeal process was exhausted with the denial of a petition for hearing.  (Ibid.)

 It is agreed that the time to file the malicious prosecution action is tolled while an appeal from the underlying judgment is actually pending.  (Friedman v. Stadum (1985) 171 Cal.App.3d 775, 217 Cal.Rptr. 585.)   In fact, if the malicious prosecution action is filed during the pendency of such appeal, the action will be dismissed.  (Friedman, supra;  accord, Gibbs, supra, 183 Cal.App.3d at p. 721, 129 Cal.Rptr. 373.)   Plaintiff relies on this well-settled rule for her position that the time is tolled until the appeal is final for all purposes, saying it is still “pending” while review in the California Supreme Court is possible.

However, if entry of the trial court judgment begins the running of the limitations period even though the judgment is not “final” in the sense that it is subject to potential appellate review, why should the decision of the Court of Appeal be differently regarded?   Like the trial court judgment which has not actually been appealed, the judgment of the Court of Appeal is a dispositive event which will stand unless later events operate to bring it under scrutiny again (either rehearing in the Court of Appeal, or hearing in the California Supreme Court).   If such events do occur, and the decision comes under rescrutiny or review, then from that point on the limitations period would clearly be tolled, just as the period is similarly tolled for the actual pendency of a noticed appeal after judgment.   But no principle holds that the statute is tolled during the period of potential review.   The language quoted above from the Soble decision is directly pertinent:  non-finality of judgment does not itself toll the statute.   It is the actual institution of proceedings affecting the judgment which will toll the period until such proceedings are terminated.

A contrary view, tolling the statute of limitations during the period for potential review, might well require abatement until the period for all possible review, including certiorari to the United States Supreme Court and collateral attack, had elapsed.   Such a rule would clearly not be workable.

In the Soble case, no appeal was ever taken, and the period was held to run from entry of the trial court judgment in the underlying action.   So here, where no petition for review was ever filed, nor rehearing sought, the period recommenced upon filing of the Court of Appeal's decision.   Accordingly the complaint is filed late.

Real party in interest Alice P. Siegrist-Duncan has been notified that a peremptory writ in the first instance could be issued here, and she has filed opposition.   The peremptory writ of mandate will issue in the first instance.  (Code Civ.Proc., § 1088;  Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177–182, 203 Cal.Rptr. 626, 681 P.2d 893.)

Let a writ of mandate issue as prayed directing respondent Superior Court to vacate its order overruling petitioners' demurrer and to make a different order sustaining such demurrer on the ground the statute of limitations has run on the complaint.

BRAUER, Acting Presiding Justice.

CAPACCIOLI and PREMO,* JJ., concur.