Citizens State Bank v. Hoffman

WOOD, Acting P. J.

Respondent obtained a judgment for $2,000 against appellants in an action for alleged malicious prosecution in the filing in September, 1935, of a civil action for the recovery of the rental of real property and the levying of an attachment in the same action in January, 1937. Although appellant Helen S. Hoffman was named as plaintiff in the action filed in September, 1935, she did not sign the complaint or any pleading in the action, nor did she sign any instrument of any kind in connection with the levy of the attachment. There is no evidence that she authorized her name to be used in the action, that she knew that the action had been filed or that the attachment had been levied. Apparently the only connection she had with the litigation which brought about the present action lies in the fact that she is the wife of the other appellant and is one of the owners of the property for the rental of which the criticized action was commenced. Clearly no sufficient showing has been made to justify a judgment against her in the present action. Whenever the appellant is herein mentioned reference will be made to appellant Fred Hoffman.

The business transactions of respondent and appellant began in 1928, when respondent leased from appellant a building in the city of Long Beach in which to conduct its

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banking business. According to its terms this lease was to terminate on March 31, 1933. Before this date appellant had reduced the stipulated rental on several occasions. Differences arose between the parties over the claim that respondent had improperly removed a safety deposit vault door from the premises, and the further claim that subtenants of respondent had damaged the building. One of respondent’s subtenants, one Bernstein, retained possession of part of the premises after March 31, 1933, and appellant claimed that the holding-over by the subtenant made respondent liable for a renewal term.

An action was filed by appellant against respondent on May 25, 1933, for unpaid back rental and for rental for April, 1933, part of the period of the alleged holding-over; also for damages to the premises and for the removal of the vault door. This action, which is not the one claimed to be the basis for the malicious prosecution action, was brought to trial in June, 1934, and a memorandum opinion was filed therein on December 4, 1934. Findings of fact were signed on April 1, 1936, and corrected findings were signed on June 5, 1936, and judgment thereon entered in favor of appellant in the sum of $2,863.08, including the sum of $900 for the month of April, 1933. Appellant appealed from this judgment, contending that it should have been in a larger amount.