Gause v. McClelland

California Court of Appeal Mar 9, 1951 No. Civ. 18053Published

Before: McCOMB

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Holding. A tenant cannot recover damages for malicious prosecution following an eviction based on a judgment later reversed on appeal without proving the landlord acted with malice and without probable cause. A judgment in an unlawful detainer action creates a conclusive presumption of probable cause absent evidence of fraud in obtaining that judgment.

Issues

May a tenant recover for malicious prosecution after an eviction based on a judgment later reversed on appeal without showing a want of probable cause?

Disposition. Reversed

Quotations verified verbatim against the opinion

“It is only when he prosecutes an action maliciously and without probable cause that he renders himself liable in damages.”

“To sustain a cause of action for malicious prosecution one of the essential elements is a finding of fact that there was a want of probable cause.”

“The rule is established that in the absence of proof of fraud in obtaining a judgment in an unlawful detainer action, even though it be reversed on appeal, such judgment gives rise to a conclusive presumption of probable cause”

McCOMB, J.

J. — From a judgment in favor of plaintiffs after trial before the court without a jury in an action to recover damages for malicious prosecution, defendant appeals.

Facts:

About June 13, 1943, plaintiffs leased from defendant from month to month, under a written lease, an apartment in the Graemere Apartments, Los Angeles. Soon thereafter difficulties arose between the parties and on many occasions defendant refused to accept rent from plaintiffs and tried to evict them. In March, 1946, defendant stated to plaintiffs that she desired their apartment which adjoined the apartment occupied by herself and husband for the use of her mother. Plaintiffs did not accede to this request, whereupon defendant obtained permission from the Office of Price Administration to file an action in unlawful detainer seeking possession of their apartment.

Such an action was filed on September 10, 1946, in the Municipal Court of Los Angeles and after trial a judgment was entered in favor of plaintiff in such action,' defendant here. The defendants in the municipal court action appealed to the appellate department of the superior court. On January 10, 1947, that department reversed the judgment on the ground that the notice to vacate was technically insufficient. While the appeal was pending, plaintiffs in the instant action failed on December 26,1946, to pay the rent due for the apartment whereupon defendant obtained a writ of possession which was served on plaintiffs and on January 2, 1947, they were evicted from the apartment.

Upon reversal of the judgment of the municipal court plaintiffs instituted the present action seeking to recover damages for their wrongful eviction. After trial in the superior

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court the judge awarded a judgment in favor of plaintiffs in the sum of $1,797.

Question: May a tenant who is evicted by virtue of a writ of possession under a judgment in an unlawful detainer action which judgment is subsequently reversed on appeal recover in a tort action for malicious prosecution in the absence of a showing of want of probable cause f

No.

The rule is accurately stated in Lawyers’ Reports Annotated (1918C), page 323 as follows:

Gause v. McClelland

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