Oppenheimer v. Tamblyn

California Court of Appeal Jan 15, 1959 No. Civ. 23167Published

Before: Shinn

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Holding. A complaint for malicious prosecution must allege a favorable termination indicating the plaintiff's innocence, and a trial court errs by sustaining a demurrer without leave to amend if the plaintiff could potentially cure pleading defects. Furthermore, a court cannot take judicial notice that a defendant acted in an official capacity when the complaint does not establish that the defendant was acting within the scope of their public duties.

Issues

Whether the amended complaint sufficiently alleged a favorable termination of the prior criminal proceeding.
Whether the trial court erred in sustaining a demurrer without leave to amend.
Whether the trial court erred in taking judicial notice that the defendant acted in his official capacity as city attorney and was therefore immune from suit.

Disposition. reversed

Quotations verified verbatim against the opinion

“If it is of such a nature as to indicate the innocence of the accused, it is a favorable termination sufficient to satisfy the requirement.”

“It does not appear upon the face of plaintiff’s amended complaint that defendant initiated the misdemeanor prosecution in his official capacity on the basis of information received by him in the course of his official duties.”

SHINN, P. J.

Action against W. D. Tamblyn and others for malicious prosecution. Following the sustaining of a demurrer interposed by defendant Roger Arnebergh with leave to amend, plaintiff filed an amended complaint against Arnebergh only. Arnebergh demurred to the amended 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 Arnebergh.

The amended complaint alleges: On or about February 15, 1955, defendant maliciously and without probable cause “filed a complaint and instituted a criminal prosecution in Los Angeles, California, against the plaintiff herein, charging that plaintiff had purportedly violated section 679 of the California Vehicle Code, in said city.” Defendant “acted with oppression, fraud and malice” toward plaintiff. Plaintiff posted bail and paid $50 for the services of an attorney in defending against the charge. Plaintiff also alleges: 1 ‘ [A] fter a trial thereof, it was dismissed, and plaintiff’s bail was exonerated in December, 1955.” The prayer is for recovery of the attorney’s fee and substantial general and exemplary damages.

The first question to be considered is whether the amended complaint states the substance of a cause of action for malicious prosecution.

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,

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 plain

[161]

tiff, it fails to state a cause of action.

(Roos

Harris,

203 Cal. 201 [263 P. 225] ;

Prentice

Oppenheimer v. Tamblyn

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SHINN, P. J.

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