Oppenheimer v. Tamblyn

California Court of Appeal Jul 22, 1958 No. Civ. 22744Published

Before: Shinn

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Holding. The court held that while the complaint failed to allege a favorable termination of the prior criminal proceeding, it was error to sustain the demurrer without leave to amend because the defect could potentially be cured by amendment.

Issues

Whether a complaint for malicious prosecution must allege that the prior criminal proceeding terminated in a manner indicating the plaintiff's innocence.
Whether a trial court errs in sustaining a demurrer without leave to amend when the complaint fails to allege facts sufficient to show a favorable termination.
Whether the statute of limitations for a malicious prosecution action begins to run before the underlying criminal proceeding is terminated.

Disposition. reversed

Quotations verified verbatim against the opinion

“Where the complaint alleges no facts from which it can be concluded that the prior proceedings terminated favorably to the plaintiff, it fails to state a cause of action.”

“plaintiff’s cause of action did not accrue until the proceedings against him were dismissed.”

SHINN, P. J.

The present action is against W. D. Tamblyn, R. C. Briggs, Irving Gordon and Wayne S. Vance to recover damages for malicious prosecution. Vance demurred to the complaint. The court sustained his demurrer without leave to amend and entered judgment in his favor. Plaintiff appeals from the judgment dismissing the action as to Vance.

The complaint alleges: On or about February 15, 1955, defendants maliciously and without probable cause “instituted, caused, procured and instigated a criminal prosecution against the plaintiff for purported violation of section 679 of the Vehicle Code . . . .” Defendants “acted with oppression, fraud and malice” toward plaintiff. Plaintiff posted $53 bail and paid $50 for the services of an attorney in defending against the charge. Plaintiff also alleges: “After due proceedings had in said criminal prosecution, it was dismissed, and plaintiff’s bail was exonerated.” The prayer is for recovery of the attorney’s fee and substantial general and exemplary damages.

Vance interposed a general and special demurrer; the grounds of general demurrer were that the complaint failed to allege that the prosecution terminated in a manner favorable to plaintiff and that the action is barred by the provisions of section 340, subdivision 3 of the Code of Civil Procedure. The special demurrer specified two respects in which the complaint was uncertain and ambiguous, viz., it did not allege whether the prosecution had been terminated, and, if so, whether it had been terminated in plaintiff’s favor. The record does not disclose the ground or grounds on which the demurrer was sustained.

The elements of a cause of action for malicious prosecution are: (1) A judicial proceeding favorably terminated; (2) want of probable cause; and (3) malice.

(Jaffe

Stone,

[296]

18 Cal.2d 146 [114 P.2d 335, 135 A.L.R. 775].) Where the complaint alleges no facts from which it can be concluded that the prior proceedings terminated favorably to the plaintiff, it fails to state a cause of action.

(Roos

Oppenheimer v. Tamblyn

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SHINN, P. J.

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