ARTHUR J. CROWLEY, Plaintiff and Appellant, v. CAROLE KATLEMAN et al., Defendants and Respondents.
No. S033705
Supreme Court of California
Oct. 31, 1994
8 Cal. 4th 666
Crowley & Cuneo, Sarah J. Hoover and Arthur J. Crowley for Plaintiff and Appellant.
Hufstedler, Kaus & Ettinger, John Sobieski, Dennis M. Perluss and Mark R. McDonald for Defendants and Respondents.
OPINION
MOSK, J.—In Bertero v. National General Corp. (1974) 13 Cal.3d 43 [118 Cal.Rptr. 184, 529 P.2d 608, 65 A.L.R.3d 878] (Bertero), we held that a suit for malicious prosecution lies for bringing an action charging multiple grounds of liability when some but not all of those grounds were asserted with malice and without probable cause. In the case at bar we are called on to reconsider the question. After doing so, we conclude that we should adhere to the prevailing Bertero rule and therefore affirm the judgment of the Court of Appeal.
Plaintiff Arthur J. Crowley appeals from a judgment of dismissal following the sustaining of a general demurrer without leave to amend to his complaint for malicious prosecution against defendant Carole Katleman and
Our task in reviewing a judgment of dismissal following the sustaining of such a demurrer is to determine whether the complaint states, or can be amended to state, a cause of action. For that purpose we accept as true the properly pleaded material factual allegations of the complaint, together with facts that may properly be judicially noticed. (Blatty v. New York Times Co. (1986) 42 Cal.3d 1033, 1040-1041 [232 Cal.Rptr. 542, 728 P.2d 1177]; Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [216 Cal.Rptr. 718, 703 P.2d 58].)2
Arthur Crowley was Beldon Katleman‘s best friend, next-door neighbor, and attorney. In 1973 Beldon Katleman married Carole Katleman, a woman some 30 years his junior. After a brief marriage characterized by the probate court as “stormy,” he divorced her in 1975. Crowley represented Beldon Katleman in the divorce proceedings, and as a result of that representation Carole Katleman became еxtremely hostile towards Crowley.
On January 2, 1976, Beldon Katleman executed a will, naming Crowley as executor. Crowley did not draft the will, nor did he participate in its drafting or its formal execution. The will recited that Katleman was not married; that he had an adult daughter by a prior marriage and two grandchildren by that daughter; and that he had no siblings, but that his mother was still living. In the will Katleman expressly declined to provide for his adult daughter and her issue. Instead, he made a specific bequest to his mother‘s longtime servant, and disposed of the residue as follows: if his mother survived him the residue would be held in trust for her benefit during her lifetime, and after her death would be distributed to Crowley; if she did not survive him, he gave the residue directly to Crowley. Crowley was named trustee. The will included a standard no contest clause disinheriting any beneficiary or heir who contested it.
In 1980 Beldon married Carole Katleman for the second time; and although, according to the probate court, “the second marriage also had its
Shortly after Beldon Katleman‘s death, Crowley offered Carole Katleman one-half of her deceased husband‘s estate.3 She refused his offer, and instead told third parties she would have Crowley disbarred and would “spend every penny or dime” to make sure he received nothing from the estate. She also told Crowley she was not aware of any will or codicil executed by Beldon Katleman other than his 1976 will. A search for such a document turned up none.
On October 4, 1988, Crowley filed a petition to probate Beldon Katleman‘s will. The court appointed Crowley special administrator of the estate.
On October 28, 1988, Carole Katleman, represented by the defendant attorneys, filed a will contest. As amended, the contest alleged in six separate counts six grounds for invalidating the will, to wit, that (1) Crowley exerted undue influence over Beldon Katleman; (2) Beldon Katleman revoked the will by destroying it; (3) the will was not in fact his last will; (4) he lacked testamentary capacity when he executed the will; (5) the will was not duly executed; and (6) Crowley defrauded Beldon Katleman to induce him to make the will. Carole Katleman then successfully petitioned the probate court to remove Crowley as special administrator of the estate because of the pendency of her will contest.
On December 6, 1989, the probate court granted Crowley‘s motion for summary adjudication of issues as to the ground of the will contest alleging lack of due execution, declaring that the will had been properly executed and witnessed. The court denied the motion as to the remaining grounds, ruling there were triable issues of material fact as to each.
Shortly before trial of the will contest Crowley again offered Carole Katleman one-half of the estate, but she again refused his offer.
After substantial discovery, the will contest was litigated in a trial lasting almost three weeks. On August 3, 1990, the probate court ruled that none of the six grounds alleged by Carole Katleman for invalidating the will was meritorious. Rather, the court adjudged that the will was not the product of either undue influence or fraud by Crowley, Beldon Katleman did not revoke
Carole Katleman took an appeal from the judgment. On May 22, 1991, however, she filed a voluntary dismissal of the appeal with prejudice. The judgment thereby became a final decision on the merits in Crowley‘s favor.
While the will contest was pending Carole Katleman also filed a claim for a share of the estate as an omitted spouse. (
Some six weeks later Crowley filed the present action for malicious prosecution against Carole Katleman and the attorney defendants. The first two causes of action are against Carole Katleman. They allege that the will contest terminated in Crowley‘s favor and that Carole Katleman acted maliciously аnd without probable cause in contesting the will on the grounds that (1) it was not duly executed, (2) it was void for fraud, (3) Beldon Katleman lacked testamentary capacity, (4) it was not his last will, and (5) Beldon Katleman revoked the will by destroying it. It is further alleged that the will contest “was not premised on an honest or good faith belief by [Carole Katleman] of the merits of such claims, but was instead based upon her malicious, vindictive hatred of [Crowley], to cause [him] to suffer emotional distress, to injure his reputation, and her desire to assert as many claims as possible against him, out of spite.” We observe that the first two causes of action allege that only five of the six grounds of the will contest lacked probable cause; they are silent as to the undue influence ground.
The third cause of action is against the attorney defendants. It alleges generally that they instigated and continued the will contest maliciously and without probable cause. Specifically, it alleges that the attorney defendants knew or should have known there was no probable cause for contesting the
Carole Katleman and the attorney defendants (hereafter collectively defendants) filed a general demurrer to the malicious prosecution complaint, asking the court to tаke judicial notice of the probate proceedings. In their points and authorities defendants contended that (1) Crowley “tacitly acknowledged” that the undue influence ground of the will contest was legally tenable by omitting it from the list of grounds alleged to lack probable cause;4 (2) by denying Crowley‘s motion for summary adjudication of issues as to all grounds of the will contest except lack of due execution, the probate court “necessarily determined” there was probable cause for the remaining grounds; (3) under Friedberg v. Cox (1987) 197 Cal.App.3d 381 [242 Cal.Rptr. 851] (Friedberg), the absence of probable cause for one ground of the will contest (i.e., lack of due execution) will not support a malicious prosecution action when, as here, there was probable cause for the remaining grounds; and (4) in any event, probable cause to claim lack of due execution was shown by the testimony of the two surviving witnesses to the will, who testified in the will contest that they could not recall Beldon Katleman‘s signing the will in their presence and asking them to witness it.5
Perhaps aware of the inadequacy of the arguments made in their points and authorities, defendants shifted their ground at the hearing on the demurrer: instead of contending that the rule of Friedberg applied because the court ruling on the motion for summary adjudication of issues had necessarily determined there was probable cause for all grounds of the will contest except lack of due execution, they argued first and foremost that the Friedberg rule applied because there was probable cause for one ground of the contest, i.e., undue influence. They characterized this ground as the “primary theory” of the will contest, and urged there was probable cause for this ground because (1) the complaint does not challenge it and (2) the court
On January 28, 1992, the court sustained defendants’ demurrer without leave to amend, but failed to clearly state its reasons. Although the code requires that “the court shall include in its decision or order a statement of the specific ground or grounds upon which the decision or order is based” (
The Court of Appeal reversed the judgment “under compulsion” of Bertero, supra, 13 Cal.3d 43, 55-57. The court and defendants strongly criticized the Bertero rule, however, and we granted review to consider their points.
I
“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 [citations]; (2) was brought without probable cause [citations]; and (3) was initiated with malice [citations].” (Bertero, supra, 13 Cal.3d at p. 50.)
In the case at bar it is undisputed that the will contest was initiated by defendants and that it terminated in a decision on the merits in Crowley‘s favor as to each ground of the contest. At this stage of the proceedings defendants do not contest the allegation that they acted with malice. The dispute relates to the third element of the cause of action, i.e., lack of probable cause to bring the contest.
Because the case is before us on a demurrer, the issue is whether the complaint properly pleads the element of probable cause. Specifically, the issue is whether a malicious prosecution action for bringing a will contest on multiple grounds may be maintained when the plaintiff does not allege that all the grounds asserted in the contest lacked probable cause. In the case at bar, as noted above, none of the three causes of action alleges that defendants lacked probable cause for the undue influence ground.
As the Court of Appeal correctly observed, “This case is virtually identical to Bertero.” In Bertero, supra, 13 Cal.3d 43, the employee plaintiff
After the judgment was affirmed on appeal, Bertero filed another action against the same defendants for malicious prosecution of their failed cross-complaint, charging that all three grounds of the cross-complaint were malicious and lacked probable cause. Again Bertero prevailed, and was awarded additional damages. On aрpeal from that judgment the defendants challenged, inter alia, an instruction that allowed the jury to find for Bertero even if only one of the three theories of liability in the cross-complaint lacked probable cause.6 Affirming the judgment with a minor modification, this court held the instruction correct. (13 Cal.3d at pp. 55-57.)
We began by reviewing the dual harms to society and to the individual that the cause of action for malicious prosecution is designed to redress: “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.” (Bertero, supra, 13 Cal.3d at p. 50.)
Turning to the challenged instruction, we found support for it in Singleton v. Perry (1955) 45 Cal.2d 489 [289 P.2d 794] (Singleton) and Albertson v. Raboff (1956) 46 Cal.2d 375 [295 P.2d 405] (Albertson). In Singleton the defendant signed two criminal complaints against the plaintiff. After the charges were dismissed the plaintiff filed two malicious prosecution actions against the defendant, consolidated for trial. The plaintiff prevailed in only one of the actions, and the defendant appealed. In affirming the judgment we did not question that malicious prosecution would lie for the groundless charge even though there may have been probable cause for the other. We quoted with approval the view of an earlier decision of a sister state: “The authorities show . . . that, in order to maintain [a malicious prosecution
In Albertson, supra, 46 Cal.2d 375, the defendant brought an action against the plaintiff to recover (1) thе balance due on a promissory note and (2) title to real property on a theory of fraudulent conveyance. The plaintiff prevailed only on the latter claim, and sued the defendant for maliciously prosecuting that portion of the case. We cited Singleton, supra, 45 Cal.2d at page 497, as holding that “a defendant cannot escape liability for the malicious prosecution of an unjustified charge by joining with it a justified charge,” and we concluded in an alternate holding that malicious prosecution would lie for the claim of fraudulent conveyance despite probable cause for the claim on the promissory note. (Albertson, supra, 46 Cal.2d at p. 385.)
The defendants in Bertero, supra, 13 Cal.3d 43, sought to distinguish the foregoing two cases on the ground that in Bertero “only one remedy—the recovery of monies already paid Bertero under the contract—was sought with three theories for the recovery suggested.” (Id. at p. 56, italics in original.) To apply the above discussed reasoning to “cases in which the plaintiff in the former action asserted separate theories of recovery,” the defendants argued, “will result in potential plaintiffs being unable to rely on multiple theories of liability stemming from a single occurrence.” (Ibid.) We rejected this attempted distinction, explaining that “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.” (Id. at p. 57, fn. omitted, italics in original.)
As noted above, defendants in the case at bar also contend there was probable cause for the undue influеnce ground of the will contest because the court trying the contest found that the confidential relationship between Crowley and Beldon Katleman had given rise to a presumption of such influence. Again we rejected an identical contention in Bertero: “Our conclusion that an action for malicious prosecution lies when but one of alternate theories of recovery is maliciously asserted disposes of a further contention of [the defendants in Bertero]. They argue a statutory presumption of a lack of consideration and undue influence [citation] in the creation
Nor could defendants herein contend they were compelled to assert all the statutory grounds for a will contest under pain of being deemed to have waived them: as we said in rejecting a similar argument in Bertero, “A litigant is never compelled to file a malicious and fabricated action. It is not the assertion of a claim that is actionable but rather the malicious character of the assertion.” (13 Cal.3d at p. 52.)
For all these reasons the Court of Appeal was correct in concluding that “The holding in Bertero is controlling.” Under the rule of that decision, the complaint in the case at bar states a cause of action for malicious prosecution even though it does not allege that every one of the grounds asserted in the will contest lacked probable cause. And under the rule of Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal.Rptr. 321, 369 P.2d 937], the Court of Appeal was also correct in concluding that it was bound by Bertero to reverse the judgment dismissing the action.
II
Unable to distinguish Bertero, defendants ask us to overrule it.
A
They rely first on Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863 [254 Cal.Rptr. 336, 765 P.2d 498] (Sheldon Appel), but they overstate the relevance of that decision to the particular issue in the case at bar. To begin with, there can be no claim that Sheldon Appel is in point either on its facts or on its law. We there reviewed a judgment finding a law firm liable in malicious prosecution for filing a complaint to impose a vendor‘s lien on real property on behalf of a client. The prior action was brought on a single theory of liability, rather than, as here, on multiple theories. In these circumstances it is not surprising that although our opinion in Sheldon Appel answered four questions of law relating to proof of probable cause, not one of those questions had anything to do with the multiple-theory issue in
Unable to rely on either the facts or the law of Sheldon Appel, defendants quote from a preliminary policy statement with which we prefaced the body of the opinion. In that policy statement we reiterated the traditional view that malicious prosecution is a “disfavored cause of action” because of its potentially chilling effect on the public‘s willingness to resort to the courts for settlement of disputes. (47 Cal.3d at p. 872.) We adhere to that view. (See, e.g., Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1131 [270 Cal.Rptr. 1, 791 P.2d 587].) But we were also fully cognizant of the same view in Bertero, where the defendants expressly reminded us that “malicious prosecution is not a tort “favored by the law” ” (13 Cal.3d at p. 53). Nevertheless we warned, “This convenient phrase should not be employed to defeat a legitimate cause of action. We responded to an argument similar to defendants’ over 30 years ago, reasoning, ‘. . . we should not be led so astray by the notion of a “disfavored” action as to defeat the established rights of the plaintiff by indirection; for example, by inventing new limitations on the substantive right, which are without support in principle or authority. . . .‘” (Ibid., quoting Jaffe v. Stone (1941) 18 Cal.2d 146, 159 [114 P.2d 335, 135 A.L.R. 775]; accord, Leonardini v. Shell Oil Co. (1989) 216 Cal.App.3d 547, 566-567 [264 Cal.Rptr. 883].)8
Nor, for the same reason, should we expand the substantive right. Defendants further quote the portion of our policy statement in Sheldon Appel, supra, 47 Cal.3d at pages 873-874, in which we recommended the use of statutory sanctions against frivolous claims or delaying tactics. (E.g.,
B
Defendants next contend that we should abandon the rule of Bertero, supra, 13 Cal.3d 43, and replace it with a new rule based on the “primary right” theory. To understand this contention it will be helpful to briefly review the main points of the primary right theory.
The primary right theory is a theory of code pleading that has long been follоwed in California. It provides that a “cause of action” is comprised of a “primary right” of the plaintiff, a corresponding “primary duty” of the defendant, and a wrongful act by the defendant constituting a breach of that duty. (McKee v. Doud (1908) 152 Cal. 637, 641 [93 P. 854].) The most salient characteristic of a primary right is that it is indivisible: the violation of a single primary right gives rise to but a single cause of action. (Slater v. Blackwood (1975) 15 Cal.3d 791, 795 [126 Cal.Rptr. 225, 543 P.2d 593].) A pleading that states the violation of one primary right in two causes of action contravenes the rule against “splitting” a cause of action. (Wulfjen v. Dolton (1944) 24 Cal.2d 891, 894-895 [151 P.2d 846].)
As far as its content is concerned, the primary right is simply the plaintiff‘s right to be free from the particular injury suffered. (Slater v. Blackwood, supra, 15 Cal.3d 791, 795.) It must therefore be distinguished from the legal theory on which liability for that injury is premised: “Even where there are multiple legal theories upon which recovery might be predicated,
The primary right theory has a fairly narrow field of application. It is invoked most often when a plaintiff attempts to divide a primary right and enforce it in two suits. The theory prevents this result by either of two means: (1) if the first suit is still pending when the second is filed, the defendant in the second suit may plead that fact in abatement (
One may well ask what this theory of pleading has to do with the case at bar. It would obviously be relevant if, for example, Crowley had filed a second malicious prosecution action alleging that defendants lacked probable cause for the ground of their will contest that he omitted from his present complaint, i.e., undue influence. In that event defendants could have invoked the primary right theory to support a plea in abatement or, if the present action fails, the bar of res judicata. (Cf. Dryer v. Dryer (1964) 231 Cal.App.2d 441, 446-449 [41 Cal.Rptr. 839] [judgment refusing to set aside transfer of property to surviving spouse on ground of undue influence, held a bar to a subsequent action for same relief on ground of fraud].)
But this case presents no such scenario. Rather, defendants contend we should use the primary right theory for a wholly different purpose, i.e., to
Instead, in their opening brief in this court defendants now argue that (1) although the cause of action in the prior proceeding stated multiple grounds or theories of liability, it must nevertheless have been premised on the violation of a single primary right, and therefore, (2) if there was probable cause to assert the violation of that primary right on any one theory of liability, such probable cause is sufficient to defeat a malicious prosecution claim even if the other theories of liability lacked probable cause.
The reasoning is flawed by a non sequitur. It is true that under the primary right theory a properly pleaded cause of action must be premised on a single primary right even though it states multiple grounds of liability. But it does not follow from the primary right theory that probable cause to assert that cause of action on one ground of liability defeats a malicious prosecution claim when the other grounds lacked probable cause. Whether such “partial probable cause” is sufficient for this purpose, as we shall see, is a question of policy under the substantive law of malicious prosecution; the primary right theory of pleading simply does not address the matter.11
Lacking a logical basis for their contention, defendants rely on a judicial analogy: they cite Friedberg, supra, 197 Cal.App.3d 381, and Paramount General Hospital v. Jay (1989) 213 Cal.App.3d 360 [261 Cal.Rptr. 723]. We are not averse to drawing analogies from the primary right theory when appropriate. (See, e.g., Bay Cities Paving & Grading, Inc. v. Lawyers’ Mutual Ins. Co., supra, 5 Cal.4th 854, 860 [in deciding the meaning of the word “claim” in an insurance policy, the fact that the claimant had only one cause of action under the primary right theory, “though not controlling, is illustrative“].) Defendants’ reliance on Friedberg, however, is not persuasive for several reasons.
First, the portion of the Friedberg opinion cited by defendants (197 Cal.App.3d at pp. 387-388) appears to have been largely unnecessary to the decision. In that case one attorney (Ingraham) sued another (Friedberg) for his share of $86,000 in fees generated by litigation in which they had both been counsel. Ingraham alleged three theories of liability: joint venture, tortious interference with contract, and quantum meruit. The court granted a nonsuit as to the theories of joint venture and interference with contract, but the jury found for Ingraham on the quantum meruit theory and assessed damages against Friedberg in the amount of $12,900. Friedberg nevertheless filed an action for malicious prosecution against Ingraham and the attorneys who represented him in the fee action (hereafter collectively Ingraham), alleging that in that action Ingraham had prosecuted his unsuccessful theories of joint venture and interference with contract maliciously and without probable cause. The court granted summary judgment for Ingraham, and the Court of Appeal affirmed.
The sole issue on appeal was whether the fee action had terminated favorably to Friedberg, as required to support a malicious prosecution claim. (Bertero, supra, 13 Cal.3d at p. 50.) The issue was not difficult: on its face the action had evidently not terminated favorably to Friedberg, because the judgment assessed substantial damages against him. Friedberg therefore urged the Court of Appeal to go behind the judgment and hold that the favorable termination requirement was met by the interlocutory ruling granting his motion for nonsuit as to two of Ingraham‘s three theories of liability, i.e., the theories of joint venture and interference with contract.
The Friedberg court rejected that contention on the sufficient ground that “‘[T]he 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. . . .‘” (197 Cal.App.3d at p. 385.) The court relied on Murdock v. Gerth (1944) 65 Cal.App.2d 170, 177 [150 P.2d 489] (Murdock), for the proposition that “in determining whether a proceeding alleged to have been
The Murdock court did not mention the primary right theory of pleading, and the Friedberg court likewise did not need to invoke that theory. It relied on the theory in order to distinguish Albertson, supra, 46 Cal.2d 375, but Albertson was distinguishable on other grounds. As noted above, in the prior action in Albertson the defendant sued the plaintiff to recover (1) the balance due on a promissory note and (2) title to real property on a theory of fraudulent conveyance; the plaintiff lost on the first claim and took an appeal, but won on the second claim and sued the defendant for maliciously prosecuting it. The defendant contended in this court that the malicious prosecution complaint was premature because the plaintiff‘s appeal from the adverse portion of the judgment in the prior action was still pending. In rejecting the point, we relied exclusively on the settled rule that an appeal may be taken from only a portion of a judgment when that portion is “severable” in the sense that the issues raised in the appeal can be resolved without regard to the issues determined by the portion of the judgment that was not appealed. (Id. at p. 378, citing, inter alia, American Enterprise, Inc. v. Van Winkle (1952) 39 Cal.2d 210, 216-217 [246 P.2d 935].) Because this rule does not turn on whether or not the appealable portion of the judgment adjudicated a “cause of action,” the opinion in Albertson did not mention the primary right theory. Rather, in holding that the malicious prosecution complaint met the favorable termination requirement, we said simply that “As indicated above, that part of the judgment in the former action that determined that defendant had no interest in or a right to a lien upon plaintiff‘s real property is now final and constitutes a termination of that separable part of the proceeding favorable to plaintiff.” (46 Cal.2d at p. 382.) Because there was no such partial appeal from the judgment in Friedberg, the Friedberg court could have distinguished Albertson on that ground alone.
In addition, the reliance of the Friedberg court on the primary right theory to define the prior action for purposes of the favorable termination requirement of the law of malicious prosecution appears to suffer from the same non sequitur as we identified above. The Friedberg court reasoned that under the primary right theory, “if Ingraham had sued to recover attorney‘s fees solely on the theory of, e.g., quantum meruit[,] and the matter had gone to final judgment, a later action to recover attorney‘s fees based on joint venture or tortious interference with contract would be foreclosed by the”
doctrine of res judicata.” (197 Cal.App.3d at p. 388.) This is true; but it does not follow from the primary right theory that when, as in Friedberg, supra, the three theories of liability are litigated in a single action and the latter two are stricken on a motion for nonsuit, that ruling does not constitute at least a “partial favorable termination” for malicious prosecution purposes. Whethеr such a termination is sufficient to support a malicious prosecution action is, again, a question of policy under the substantive law of that tort.
In any event, Friedberg was not a probable cause case but a favorable termination case. Prior opinions have stressed that the two elements of the tort serve different purposes: “[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 v. Wasserman, Comden & Casselman (1990) 220 Cal.App.3d 1297, 1303 [271 Cal.Rptr. 579].)
For these reasons, even the Friedberg court recognized that Bertero did not affect the favorable termination requirement: as summarized in a recent decision, “the Supreme Court‘s holding that a malicious prosecution suit may be maintained where only one of several claims in the prior action lacked probable cause (Bertero v. National General Corp., supra, 13 Cal.3d at pp. 55-57) does not alter the rule there must first be a favorable termination of the entire action. (Friedberg v. Cox, supra, 197 Cal.App.3d at pp. 386-387.) In Bertero, the question whether all or only part of the prior action had to be without probable cause arose only after judgment had been reached in the plaintiff‘s favor in the prior action as a whole.” (Jenkins v. Pope (1990) 217 Cal.App.3d 1292, 1300 [266 Cal.Rptr. 557].)
C
Finally, defendants criticize the rule of Bertero, supra, 13 Cal.3d 43, on various grounds. They make essentially five arguments, adopting in large part the views of thе Court of Appeal herein, but none is persuasive.
1. Defendants’ main objection is that the Bertero rule is assertedly incompatible with “the fundamental interest which the malicious prosecution tort is designed to protect—‘the interest in freedom from unjustifiable and
The explanation, however, begs the question. By defining the “litigation” in issue as the prior action per se rather than each theory of liability litigated, defendants assume the point to be proved. It is true that such a defendant must in any event defend against the one valid theory of liability; but the defendant‘s obligation also to defend against the invalid theories of liability may well be so burdensome—as the complaint alleges in the case at bar—that it amounts to an impairment of the defendant‘s interest in freedom from unjustifiable and unreasonable litigation. Whether this is so is a question to be answered, again, not by the primary right theory but by the substantive law of malicious prosecution.
2. Next, defendants contend in effect that the Bertero rule is no longer necessary because the trial court now has statutory powers to deal with frivolous or delaying conduct that it lacked in 1974 when Bertero was decided and that provide a remedy superior to the cause of action for malicious prosecution in these circumstances. For this proposition defendants rely on a passage in Sheldon Appel in which we took note of legislative measures designed “to facilitate the early weeding out of patently meritless claims and to permit the imposition of sanctions in the initial lawsuit—against both litigants and attorneys for frivolous or delaying conduct.” (47 Cal.3d at pp. 873-874.) Among the statutes cited in Sheldon Appel defendants particularly stress
The legislative history shows that the Legislature‘s intent was far more modest. Three years before
The Legislature soon filled that gap by enacting
As enacted, moreover, the statute mentioned “making or opposing motions without good faith” as its only example of frivolous actions or delaying tactics; it was silent as to the filing of a complaint. The latter example was added in the 1985 revision of the statute. (Stats. 1985, ch. 296, § 1, p. 1335.) But in the same revision the Legislature also added an express declaration (now
There is still another reason to conclude that the Legislature did not intend either to substitute
For all these reasons,
3. Defendants also charge that under the Bertero rule the apportionment of damages between the theories of liability that are and are not supported by probable cause is difficult and “highly speculative.” There is no showing, however, that juries cannot perform that task fairly and consistently if they are properly instructed—they draw more subtle distinctions every day. Moreover, any difficulty in this regard is chargeable to the tortfeasor: in language quoted in part in Bertero, supra, 13 Cal.3d at page 56, we rejected an identical contention in Singleton, supra, 45 Cal.2d 489. There the issue was “Must plaintiff, having shown that she was damaged by the prosecution, go further and show specifically that her damage was attributable to the prosecution on the unjustified charge rather than that on the justified charge?” (Id. at p. 497.) In answer, we quoted with approval from an earlier decision of a sister state: ” ‘[I]t is manifest that whatever difficulty, or impossibility even, there may be, in discriminating between the injuries, resulting from the good and bad counts, thus improperly blended, is chargeable to the wrongful act of the defendants themselves, and, upon principle, it would seem that they should not now be permitted to plead their own wrong in their own justification. . . . [¶] ‘Indeed, it would seem almost a mockery to hold thаt, by uniting groundless accusations with those for which probable cause might exist, the defendants could thereby escape liability, because of the injured party‘s inability to divide his damages between the two with delicate nicety. Such, we think, is not the law.’ ” (Id. at pp. 497-498.)
4. Defendants next adopt the complaint of the Court of Appeal herein to the effect that the Bertero rule is assertedly incompatible with the modern
5. Lastly, defendants contend the Bertero rule is “particularly inappropriate” in a will contest. Their arguments, however, are primarily directed at showing that the tort of malicious prosecution itself is a “particularly inappropriate” remedy for will contests brought with malice and without probable cause. Defendants’ main premise is that such a contest is not a new and separate action but the continuation of an existing proceeding, i.e., the petition to probate the will; they so contend apparently in order to rely on Coleman v. Gulf Ins. Group (1986) 41 Cal.3d 782, 793-794 [226 Cal.Rptr. 90, 718 P.2d 77, 62 A.L.R.4th 1083] (no cause of action for malicious prosecution of an appeal). They also stress that such a contest does not seek affirmative relief from the proponent of the will—e.g., money damages—but simply seeks to prevent the will from being admitted to probate. They point out that the contest is initiated by filing an “objection” to the petition (
Defendants’ premise is mistaken: “When a will is contested before probate there are two separate and distinct proceedings pending before the court.
To be sure, a will contest cannot be initiated until the petition to probate the will has been filed, and to that extent it is dependent on the latter. The answer to the defendants’ point, however, is not to be found in the technical niceties of will contest pleading, but in the reality of the matter. Whether they are called affirmative relief or affirmative defenses, the formal assertion of grounds to contest а will has the effect of injecting new factual and legal issues into the probate process, and of placing on the will‘s proponent the burden of mounting a defense to those issues. It is true the contest does not pray for money damages; but it ordinarily seeks to deny the beneficiaries their inheritances and to enrich the contestants pro tanto, and the case at bar illustrates that the dollar amount at stake can be substantial. (See fn. 3, ante.) As the case at bar also illustrates, the filing of such a contest can dramatically transform the probate of a will from a routine ex parte procedure often conducted by simple affidavit (
Accordingly, whether or not an abusive will contest is technically a separate and distinct action for some purposes, its effect is nevertheless to infringe on the interest of the will‘s proponent in freedom from unjustifiable and unreasonable litigation. For purposes of the law of malicious prosecution, therefore, the contest satisfies the requirement of a “prior action . . . commenced by or at the direction of the defendant . . . .” (Bertero, supra, 13 Cal.3d at p. 50.) No less than the abusive cross-complaint asserted in Bertero, “When such action is prompted by malice and is not based on probable cause, it is actionable as in the case of other affirmative, malicious prosecutions.” (
“The elements of the common law malicious-prosecution cause of action have evolved over time as an appropriate acсommodation between the freedom of an individual to seek redress in the courts and the interest of a potential defendant in being free from unjustified litigation.” (Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1169 [232 Cal.Rptr. 567, 728 P.2d 1202].) When the prior action charged multiple grounds of liability and there was probable cause for some grounds but not for others, the question arises whether the malicious prosecution plaintiff has satisfied the requirement of showing that the prior action was brought without probable cause. We have seen that neither the statutes enacted nor the cases decided since Bertero, supra, 13 Cal.3d 43, satisfactorily answer this question. Instead the solution lies in identifying the competing policies at work and in determining which preponderates when applied in the circumstances of the case at bar.
Defendants identify the two main policies that are served by the remedy of imposing sanctions for frivolous or delaying conduct in the original action (hereafter the sanctions remedy): (1) it encourages free access to the courts for the settlement of disputes, and (2) it avoids burdening the judicial system by additional litigation. (See Sheldon Appel, supra, 47 Cal.3d at pp. 872-873.)
As explained in Bertero, the cause of action for malicious prosecution (hereafter the tort remedy) is likewise intended to redress two kinds of harm. (1) The individual who is sued “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.” (13 Cal.3d at pp. 50-51.) And (2) “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.’ ” (
We begin with the second pair of policies served by these remedies: each seeks to avoid burdening the judicial system by additional litigation. Does one outweigh the other? Defendants assert that the judicial burden caused by
We are therefore remitted to comparing the first pair of policies stated above: we must decide which weighs more in this context—(1) the pоlicy of encouraging free access to the courts, served by the sanctions remedy, or (2) the policy of redressing the harm suffered by individuals compelled to defend against unjustifiable litigation, served by the tort remedy.
It is true that untrammeled access to the courts promotes social peace by providing the citizenry with an alternative to potentially dangerous self-help methods of redressing private grievances. But it is not an unmixed blessing: many of our courts are burdened by overcrowded dockets and long delays, and all litigation exacts both public and private costs. We are willing as a society to incur those burdens and costs when the litigation is well founded or, even when ultimately unsuccessful, was at least initiated with probable cause and without malice. In those circumstances the balance tips in favor of the policy of encouraging judicial access. That policy becomes counterproductive, however, when it operates to promote litigation that is groundless and motivated by malice; such litigation has no place in our judicial system, and we are therefore unwilling to bear its costs.16 After careful consideration, we see no reason to reach a different result when the litigation in question is the assertion of baseless and malicious grounds of liability in a single lawsuit: in both instances the balance tips in favor of the policy of making whole the individuals harmed by such abuse of our courts.
We may draw a persuasive analogy from the cases involving the “litigation privilege” of
It is equally well settled, however, that the litigation privilege does not apply to the tort of malicious prosecution. (Rubin, supra, 4 Cal.4th at p. 1194; Silberg, supra, 50 Cal.3d at pp. 212, 216; Ribas v. Clark (1985) 38 Cal.3d 355, 364 [212 Cal.Rptr. 143, 696 P.2d 637, 49 A.L.R.4th 417]; Kilgore v. Younger (1982) 30 Cal.3d 770, 778 [180 Cal.Rptr. 657, 640 P.2d 793]; Albertson, supra, 46 Cal.2d 375, 382.) And the reason for this rule is also settled: we reiterated in Silberg that “Malicious prosecution actions are permitted because ‘[t]he policy of encouraging free access to the courts [that underlies the litigation privilege] . . . is outweighed by the policy of affording redress for individual wrongs when the requirements of favorable termination, lack of probable cause, and malice are satisfied.’ ” (50 Cal.3d at p. 216, quoting Albertson, supra, 46 Cal.2d at p. 382, italics added.) The policy of encouraging judicial access served by the litigation privilege is strong, yet the cases uniformly hold that when the litigation is groundless and motivated by malice the balance tips in favor of the policy of redressing the individual harm inflicted by that litigation. Because the policy of judicial access in the case at bar is essentially identical to the policy underlying the litigation privilege, we find those cases persuasive.
For all these reasons we reaffirm the rule of Bertero, supra, 13 Cal.3d 43, as the law governing the issue presented by this case.17
Lucas, C. J., Kennard, J., Baxter, J., George, J., and Werdegar, J., concurred.
ARABIAN, J., Dissenting.—A wealthy businessman, with a net worth estimated at $10 million, dies. Instead of leaving his estate—or any part of it—to his wife, as might be expected, his will directs that the entire fortune go to his lawyer, a man who happens to be his neighbor and, we are told, best friend. Can any sensible person doubt that, whatever the testator‘s intent, these facts are a compelling blueprint for a will contest? And if the circumstances suggest that the aggrieved widow is likely to file a lawsuit attacking the validity of the will, is it any surprise that her conscientious lawyers will feel bound to allege every alternative theory supporting the claim that there was wrongdoing behind the testamentary disposition of her husband‘s millions?
I take these propositions to be self-evident. Yet the majority would permit the beneficiary of this most peculiar will to sue the widow and her lawyers for tort damages if any one of the several theories alleged in her will contest petition is rejected as lacking probable cause. I cannot join in a holding that not only perpetuates dubious law for no better reason than that it exists, but is blind to realities of contemporary litigation practice that should impel the court to the opposite result. More fundamentally, I dissent from the majority‘s gratuitously restrictive construction of
A malicious prosecution suit imposes substantial litigation costs on both the litigants and the courts—not least because malice is such a highly factual issue that it often precludes summary disposition. It is for these reasons, among others, that we have made it clear that the policies controlling the availability of the malicious prosecution tort action transcend the interest in protecting the defendant in the prior lawsuit from having to defend against spurious claims and make it a “disfavored” cause of action that is “carefully circumscribed.” (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 872 [254 Cal.Rptr. 336, 765 P.2d 498] (Sheldon Appel); Rubin v. Green (1993) 4 Cal.4th 1187, 1194 [17 Cal.Rptr.2d 828, 847 P.2d 1044]; Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1131 [270
A
Although the majority savages defendants’ arguments, its critique has little to do with the question before us. It is true that the “primary right” concept is in origin a creature of 19th century code pleading and a construct originally developed for different analytical purposes. It does not follow, however, either that the notion itself cannot usefully be applied by analogy to the resolution of problems presented in the derivative litigation context, or that its adoption here is unsound. The use of the “primary right” model as a means of explicating the differing interests that may be аt stake in a malicious prosecution action—criticized at such length by the majority—is, after all, only a metaphor.1 More importantly, the foundation supporting our holding in Bertero, supra, 13 Cal.3d 43, has been eroded by intervening changes in legislation and in this court‘s own perspective on the balance to be struck between “the freedom of an individual to seek redress in the courts and the interest of a potential defendant in being free from unjustified litigation.” (Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1169 [232 Cal.Rptr. 567, 728 P.2d 1202].)
In short, the majority‘s reasoning regarding the implications of recent decisions of this court on the vitality of Bertero, supra, 13 Cal.3d 43, is not only flawed, but, in its lengthy wrangling over the alleged irrelevance of the
B
The Court of Appeal characterized the complaint in the original will contest action as one seeking redress of a single, “primary right“—namely, whether Beldon Katleman‘s will should have been admitted to probate. From that premise, it reasoned that, in light of the policies shaping the availability of the malicious prosecution tort, a distinction ought to be drawn for purposes of applying the probable cause element—one of the components of the tort required to be established by the plaintiff—between complaints lacking probable cause with respеct to one or more multiple primary rights and those in which some but less than all of several alternative theories supporting a single primary right lack probable cause.
The reasons why a “primary right” analysis—or its modern equivalent—should be applied in cases such as this one is obvious. As most practitioners are aware, in framing the complaint in a civil case, counsel often may be uncertain which theory of liability has the best chance of succeeding as the lawsuit unfolds; the plaintiff in, say, a wrongful termination of employment suit might allege multiple alternative theories of relief—rescission, breach of a written contract, breach of an oral contract, breach of an implied-in-fact contract, and wrongful termination in violation of public policy—as supporting the vindication of a single right. It is not only common to allege alternative theories of liability in connection with a single claim for relief arising out of a single transaction or event, but ” ‘[e]ven where there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief. [Citation.]’ ” (Bay Cities Paving & Grading, Inc. v. Lawyers’ Mutual Ins. Co., supra, 5 Cal.4th 854, 860, italics in original.)
Given that widespread practice and its justification, it is a hard rule that permits the defendant in the first action to then sue the plaintiff in that action in a subsequent malicious prosecution tort suit on the ground that some of
Whether denominated a “primary right” or a single cause of action, such unitary claims for relief typically arise from a “transaction or series of connected transactions” (as section 24, subdivision 1 of the Restatement Second of Judgments has it). For that reason, a defendant required to defend against a complaint pleading the five alternative theories of recovery in the wrongful termination action imagined above is likely to be under less of a defensive burden than, say, the defendant in Singleton v. Perry (1955) 45 Cal.2d 489 [289 P.2d 794], where the plaintiff swore to two distinct criminal complaints, one for the theft of a Cadillac and another for the theft of jewelry and other personal property. (Id. at p. 492.) To my mind, such pragmatic concerns justify treating the two types of cases differently.
In addition to such practical considerations, our holding in Bertero, supra, 13 Cal.3d 43, falls short in several other respects. As the Court of Appeal summed it up, 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“; while what it termed the “primary right” theory “suffers from none of these deficiencies and adequately protects defendants from unmeritorious lawsuits.” If these characterizations are accurate—as I believe them to be—then I cannot imagine why we would be unwilling to embrace the result urged upon us by defendants. My point is assuredly not that we should throw overboard the remedy of the malicious prosecution tort altogether. It is simply that, in assessing the conditions for its maintenance in particular circumstances, we should continue to do what we have pledged to do at least since our decision five years ago in Sheldon Appel, supra, 47 Cal.3d 863: Take special care to weigh on which side of the competing interests the balance falls. Unlike the majority, applying that calculus here leads me to conclude that plaintiff‘s remedy lies in the sanctions that were available to him in the will contest proceeding, not in another lawsuit.
The majority attempts to counter this reasoning by asserting that, as a practical matter, there are too many variables affecting a given piece of
What is worse, every time this court upholds the availability of a malicious prosecution action, our ruling has two consequences, both problematicаl: We authorize yet another derivative or retaliatory lawsuit, a creature we have repeatedly looked on with a skeptical eye, and we limit incrementally the ideal of full and open access to the courts by the threat to litigants and their counsel of retaliatory suits. (See, e.g., Rubin v. Green, 4 Cal.4th 1187, 1196-1199; Sheldon Appel, supra, 47 Cal.3d 863; Silberg v. Anderson (1990) 50 Cal.3d 205 [266 Cal.Rptr. 638, 786 P.2d 365]; Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc., supra, 42 Cal.3d 1157; Pacific Gas & Electric Co. v. Bear Stearns & Co., supra, 50 Cal.3d 1118.)
C
There is another consideration supporting defendants’ argument: The veritable sea change that has taken hold in social and judicial attitudes toward multiplying litigation in the 20 years since we decided Bertero, supra, 13 Cal.3d 43. In Sheldon Appel, supra, 47 Cal.3d 863, at page 872, this court observed that “in recent years . . . the large volume of litigation filed in American courts had become a matter of increasing concern, and in some quarters it has been suggested that a reassessment of the traditional ‘disfavored’ status of the malicious prosecution tort, and a relaxation of some of the traditional elements of the tort, may be in order.” We noted, however, that “most of the academic commentators have concluded that expansion of the malicious prosecution tort is not a promising remedy for the problem,” and that the courts of several other states “have recently addressed this same question and, in thoughtful opinions, have rejected attempts to broaden the application of the tort. . . .” (
After reviewing the competing policy choices, we concluded that the preferable course was to emphasize the availability of sanctions within the original action itself as a means of penalizing groundless claims, rather than expanding the scope of the malicious prosecution tort. We also took note of
Less than two years ago, we applied the teachings of Sheldon Appel, supra, 47 Cal.3d 863, in Rubin v. Green, supra, 4 Cal.4th 1187. There, we held that a lawsuit alleging the wrongful solicitation of clients filed by the defendant in a pending action against the attorneys for the opposing plaintiffs was not maintainable. Among other reasons, we relied on the fact that such a lawsuit was “inconsistent with the choice made in Sheldon Appel, supra, 47 Cal.3d 863, where we specifically discounted another round of litigation as an antidote for the fevers of litigiousness, preferring instead the increased use of sanctions within the underlying lawsuit and legislative measures.” (4 Cal.4th at p. 1199.)
In assessing the significance of this development, it is important to underline the conditions that drove our reasoning in Sheldon Appel and the exact nature of our conclusion. The majority opinion rejects defendants’ reliance on our endorsement in Sheldon Appel of measures such as
It is a short step from embracing the proposition that statutory sanctions for frivolous claims are a superior substitute for an expanded malicious prosecution action as a means of reducing groundless lawsuits, to adopting the view that, under circumstances in which an adequate intrasuit remedy is available to redress certain types of groundless pleadings, the availability of the derivative tort remedy should be contracted. Indeed, the symmetry by which the lesser harm of a groundless alternate theory is redressed by the intramural remedy of sanctions is virtually exact. The reduced burden of defending against improbable (so to speak) theories of recovery allegedly supporting a single claim for relief is sufficiently compensated for by the imposition of monetary sanctions in the initial lawsuit, while the greater harm of defending against fabricated causes of action continues to justify the derivative malicious prosecution claim. The net result, of course, is an incremental reduction in the quantum of litigation and the associated expenditure of resources, a more closely calibrated deterrent to judicial access, and a sanction more commensurate with the offense.
The majоrity rejects this result by the expedient of failing to discriminate between groundless claims and groundless theories: “We are willing,” the majority writes, “. . . to incur [the] burdens and costs [of litigation] when [it] is well founded or, even when ultimately unsuccessful, was at least initiated with probable cause and without malice. . . . That policy becomes counterproductive, however, when it operates to promote litigation that is groundless and motivated by malice; such litigation has no place in our judicial system. . . .” (Maj. opn., ante, at p. 694, italics added.) The simple fact—one which the majority persists in ignoring—is that by definition a claim seeking to vindicate a single primary right and falling within the alternate theory rule is not entirely groundless. At least one of the several
Likewise, the majority‘s argument that we should not overrule Bertero because the remedies available to litigants in the form of intrasuit sanctions and retaliatory malicious prosecution actions are not coextensive again misses the point. To be sure, they are not coextensive. That is the point. The defendant subjected to the single claim/multiple theory lawsuit is remitted to an intrasuit remedy precisely because the burden of defense is assessed as having been less than that facing a party forced to defend against several groundless causes of action. After all, a lesser invasion of thе defendant‘s interest in being free from unjustified litigation merits a commensurably lesser sanction.
CONCLUSION
Under circumstances in which it is possible to vindicate the interests in promoting judicial access and restraining additional litigation, while at the same time responding to the interests of those who are forced to defend against groundless allegations, this court should not hesitate to do so. Given the hindsight furnished by a generation of experience since our decision in Bertero, supra, 13 Cal.3d 43, this is, to my mind, a case in which the policies promoting judicial access and curbing lawsuits are not outweighed by those that encourage derivative litigation. I would overrule our alternate theory holding in Bertero and direct the Court of Appeal to affirm the judgment of the trial court sustaining defendants’ demurrer to the complaint.
On November 30, 1994, the opinion was modified to read as printed above.