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
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 extremely 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.
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. (Prob. Code, § 6560.) Crowley opposed the claim on the ground, inter alia, that by filing the will contest Carole Katleman triggered the no contest clause of the will and thus gave up her omission rights. On August 12, 1991, the probate court ruled to the contrary as a matter of law, concluded that Carole Katleman was an omitted spouse, and awarded her the share prescribed by statute, i.e., all the community property and one-half of Beldon Katleman's separate property. (Ibid.) In so ruling, however, the court observed that "Carole's will contest does indeed seem to be vindictive.... But even if her attack was pure vengeance, and no matter whether Mr. Crowley's righteous outrage is justified, the enforcement of the no contest clause is not a proper substitute for a malicious prosecution action for whatever damages Mr. Crowley can prove."
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 and 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 take 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;
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" (Code Civ. Proc., § 472d), here the court recited only that it took judicial notice of the probate proceedings and that it "bases its decision on Sheldon Appel Co. v. Albert & Oliker, 47 Cal.3d 863 [254 Cal.Rptr. 336, 765 P.2d 498] (1989) and Friedberg v. Cox, 197 Cal.App.3d 381 [242 Cal.Rptr. 851] (1987)." The court thereafter dismissed the malicious prosecution action in its entirety, and Crowley took this appeal.
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.
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.
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 appeal 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.
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) the 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.)
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.
Unable to distinguish Bertero, defendants ask us to overrule it.
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.
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., Code Civ. Proc., § 128.5.) Yet we urged that step not because we believed the tort of malicious prosecution should be abolished or further restricted, but because we believed it should not be expanded: our statement was in reply to the suggestion by some commentators that to combat recent increases in groundless litigation "a reassessment of the traditional `disfavored' status of the malicious prosecution tort, and a relaxation of some of the traditional
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,
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.
Lacking a logical basis for their contention, defendants rely on a judicial analogy: they cite Friedberg, supra, 197 Cal.App.3d 381, and Paramount
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
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].)
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.
The legislative history shows that the Legislature's intent was far more modest. Three years before section 128.5 was enacted, this court noted in Bauguess v. Paine (1978) 22 Cal.3d 626, 635 [150 Cal.Rptr. 461, 586 P.2d 942],
The Legislature soon filled that gap by enacting section 128.5, expressly declaring that "It is the intent of this legislation to broaden the powers of trial courts to manage their calendars and provide for the expeditious processing of civil actions by authorizing monetary sanctions now not presently authorized by the interpretation of the law in Baug[u]ess v. Paine (1978), 22 Cal.3d 626 [150 Cal.Rptr. 461, 586 P.2d 942]." (Stats. 1981, ch. 762, § 2, p. 2968.) "Managing calendars" and "processing civil actions" are not, of course, the primary problems addressed by the tort of malicious prosecution.
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 section 128.5, subdivision (e)) that "The liability imposed by this section is in addition to any other liability imposed by law for acts or omissions within the purview of this section." (Italics added.) This declaration has been correctly cited for the proposition that "The purpose of the section was to broaden the authority of the courts to manage their calendars expeditiously; the section was not intended as a substitute for substantive causes of action arising out of the underlying facts." (Brewster v. Southern Pacific Transportation Co. (1991) 235 Cal.App.3d 701, 711 [1 Cal.Rptr.2d 89], fn. omitted.) Among those substantive causes of action is, properly circumscribed, the action for malicious prosecution.
There is still another reason to conclude that the Legislature did not intend either to substitute section 128.5 for the cause of action for malicious prosecution or to overrule Bertero: the remedies are not coextensive. Section 128.5 allows compensation only for out-of-pocket litigation costs, including attorney fees, that directly result from the objectionable conduct; the relief cannot include consequential damages. (Brewster v. Southern Pacific Transportation Co., supra, 235 Cal. App.3d at pp. 710-712.) By contrast, Bertero stressed that a plaintiff who pleads and proves a case of malicious prosecution may recover not only litigation costs and attorney fees but also "compensation for injury to his reputation or impairment of his social and
For all these reasons, section 128.5 and the cause of action for malicious prosecution provide distinct remedies that are at most alternatives to each other: as explained in the companion case of Estate of Katleman, supra, 13 Cal.App.4th 51, 67, echoing the view of the trial court herein, "an adequate remedy for a frivolous or vindictive will contest is available in the form of an action for malicious prosecution." In a footnote at this point the Court of Appeal continued: "Alternatively, the trial court might have made an award of sanctions against Carole [Katleman] if it found her action to be in bad faith. (Code Civ. Proc., § 128.5; Sheldon Appel Co. v. Albert & Oliker (1989)
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 that, 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
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 a 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 (Prob. Code, § 8220, subds. (a) & (b)), into sharply adversarial and hotly contested litigation, necessitating lengthy and expensive discovery and trial.
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." (Id. at p. 53.) The case at bar is by no means the first instance of a malpractice action premised on such a will contest. (See, e.g., MacDonald v. Joslyn (1969) 275 Cal.App.2d 282 [79 Cal.Rptr. 707, 35 A.L.R.3d 641]; Fairchild v. Adams (1959) 170 Cal.App.2d 10 [338 P.2d 191].)
"The elements of the common law malicious-prosecution cause of action have evolved over time as an appropriate accommodation 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.'" (Id. at p. 51, italics added.)
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 policy 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.
We may draw a persuasive analogy from the cases involving the "litigation privilege" of Civil Code section 47, subdivision (b), an important
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.
Lucas, C.J., Kennard, J., Baxter, J., George, J., and Werdegar, J., concurred.
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 Code of Civil Procedure section 128.5 (hereafter, section 128.5), a construction that threatens to hobble an effective judicial response to the pressing burden of excessive litigation — a response we explicitly and unanimously embraced a mere five years ago. In my view, the circumstances of this case, however much they merited the imposition of substantial monetary sanctions against petitioners in the will contest itself, do not justify yet another derivative tort action.
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 Cal.Rptr. 1,
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 at stake in a malicious prosecution action — criticized at such length by the majority — is, after all, only a metaphor.
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
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 respect 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 problematical: 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.4d 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.)
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...." (Id. at p. 873.)
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 section 128.5 on the ground that the Legislature did not intend "to substitute this remedy for the cause of action for malicious prosecution...." (Maj. opn., ante, at p. 687.) Our unanimous opinion in Sheldon Appel, supra, 47 Cal.3d 863, was not, however, parsing the intent behind intervening legislation. Instead, we wrote as the state's highest court, responsible for shaping the scope and availability of common law tort remedies in light of the perceived wisdom of the day. As a part of that climate of opinion, we relied on statutory efforts to reduce frivolous litigation, including enactment of section 128.5, as emblematic of legislative attitudes toward both the "litigation explosion" and effective correctives for it. Taking our cue from the choice evident in such measures, we reasoned in effect that the courts might usefully supplement the solutions of positive law by declining to expand the
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 majority 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 the defendant's interest in being free from unjustified litigation merits a commensurably lesser sanction.
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.
The probate court rejected her petition, ruling that except for a car and a ring stipulated to have been interspousal gifts, Beldon Katleman's entire estate was his separate property. In its statement of decision the court declared that it found Carole Katleman's testimony to be wholly unbelievable and false, a "manufactured script" designed to defeat Crowley's rights under the will. The court based this finding on stipulated acts and omissions of the parties during their two marriages, Carole Katleman's sworn statements in prior documents filed in the probate proceeding, her answers to interrogatories, her testimony in the will contest, her unexplained delay in making the subject claim, and her demeanor on the stand. The court concluded: "The claim of Mrs. Katleman now before the Court is absolutely without merit. Her willingness to commit perjury for the pecuniary gain of obtaining Mr. Katleman's estate is overwhelming."
Nevertheless, the same court thereafter denied Crowley's motion that Carole Katleman be sanctioned under section 128.5 for pressing her perjurious claim of oral transmutation, on the grounds that "The great lack of merit of her claim did not amount to bad faith" and "the Court cannot say the case was one totally devoid of merit or solely intended to harass Mr. Crowley or cause unnecessary delay." The court also declined to sanction the defendant attorneys, extolling them as persons "well known to this Court to be attorneys of great excellence and integrity."
Another post-Bertero statute cited by defendants is Code of Civil Procedure section 1038, but it too offers an extremely limited remedy. It provides that if a trial court, on motion of the defendant prior to judgment, determines in certain cases that the action was not brought in good faith and with reasonable cause, it shall award the defendant reasonable and necessary attorney fees and expert witness costs. But by its terms the statute applies only to (1) actions brought against public entities and public employees and (2) actions for indemnity or contribution. (Id., subd. (a).) And even in those limited cases, the statute applies only when the action is terminated by a successful defense motion for summary judgment, nonsuit or directed verdict (id., subd. (d)); an ordinary judgment for the defendant, no matter how favorable, is insufficient to support the remedy. Finally, although parties who actually invoke this remedy waive their remedy of malicious prosecution, the two remedies are in fact alternatives: the statute expressly declares that "Failure to make the motion shall not be deemed a waiver of the right to pursue a malicious prosecution action." (Id., subd. (c).)