Ross v. O'Brien

California Court of Appeal Aug 14, 1935 No. Civ. 1173Published

Before: Harden

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Holding. The court held that the trial court properly directed a verdict for the defendant in a malicious prosecution action because the defendant established probable cause by acting upon the advice of counsel after a full and fair disclosure of the facts. Furthermore, the plaintiff's interference with the officer's valid levy of attachment was not legally justified.

Issues

Whether the defendant had probable cause to initiate a criminal prosecution against the plaintiff.
Whether the plaintiff's interference with the officer's levy of attachment was legally justified.
Whether the defendant's reliance on the advice of counsel constituted a meritorious defense to the malicious prosecution claim.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The fact that Ross was held to answer to the superior court was proof prima facie sufficient to establish probable cause for the prosecution”

“The record shows that a full and fair disclosure of the facts was made by defendant to the deputy district attorney; that said attorney advised that a criminal offense had been committed”

“The court’s action in directing a verdict for defendant was predicated upon a holding that the defense that defendant had acted on the advice of counsel in preferring and prosecuting said charge was a meritorious defense”

HARDEN, J.,

pro tem.

This is an action to recover damages for alleged malicious prosecution of a criminal action against J. Edgar Ross, plaintiff herein. At the conclusion of a jury trial the court directed a verdict for the defendant. Plaintiff appeals from a judgment entered thereon.

Appellant has failed to comply with the requirements of section 953c of the Code of Civil Procedure by printing in his brief or in a supplement thereto such portions of the record as he desires to call to the attention of the court; and respondent has filed no brief whatever.

An action was started in the Justice’s Court of Brawley Township, Imperial County, entitled

Felix Chacon

v. Jesus

[3]

Mardueno,

to recover a money judgment. In said action a writ of attachment was issued. Pursuant to instructions from the attorney for plaintiff therein, the defendant, William O’Brien, as constable of said township, attempted to levy said writ of attachment upon certain goods and chattels used in conducting a restaurant, alleged to be the property of the defendant, Jesus Mardueno, but which were then under the immediate charge of Mardueno’s wife and daughter.

There is no uncertainty as to the identity or description of the property. The levy was made by the constable by taking the property into his custody and by putting a keeper in charge, but without removing it from the place of business. (It was the purpose of the officer, upon agreement with Mrs. Mardueno, to permit the use of the attached property in the conduct of the business for a period of two days, in order to sell out some perishable supplies.)

The following statement of occurrences, giving rise to the arrest and prosecution of Ross and to the institution of the present action, is the substance of appellant’s testimony given upon the trial of the present action: While the attached property was under the charge of the keeper, Ross (though not an attorney at law) appeared upon the scene as the legal representative of Mrs. Mardueno and inquired of the keeper what he was doing there; that Ross took the keeper by the arm and told him to get out; that the keeper then left; that later the same evening O’Brien returned and locked up the doors and left the keeper again in charge; that Ross then returned, broke open the screen door and entered the premises, turned on the electric lights and again ordered the keeper to get out, which he did; that Ross then took a padlock off the front door.

Ross v. O'Brien

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HARDEN, J.,

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