Drasin v. Jacoby & Meyers

[483]

Opinion

SCHAUER, P. J.

Facts

Plaintiff, Lawrence Drasin, appeals from an order of dismissal after the sustaining of a demurrer in favor of defendant and respondent, Jacoby and Meyers (Jacoby), in this action for malicious prosecution.

Drasin, an attorney, represented Gisele Yang in a marital dissolution action. Yang discharged Drasin in 1973, prior to the termination of that action. In September 1977 Yang, represented by Jacoby, filed a complaint for malpractice against Drasin. Drasin demurred on the grounds that the statute of limitations period had expired. The trial court overruled this demurrer. Two and one-half years later. Drasin filed a motion for summary judgment, arguing again that Yang’s action was barred by the statute of limitations. The trial court granted this motion.

On February 4, 1982, Drasin filed a complaint against Jacoby, alleging that Jacoby filed the action on behalf of Yang in order to obtain a “nuisance type settlement” and to gain publicity for its office. Drasin further alleged that Jacoby had been advised that the “statute of limitations had long run” and persisted in the claim for malicious reasons.

Jacoby filed a demurrer on April 19, 1982, which was sustained without leave to amend. Drasin appeals claiming (1) the demurrer to his action for malicious prosecution was improperly sustained and (2) he should be allowed to amend his complaint to state a cause of action for abuse of process.

I

The demurrer was properly sustained as to Drasin’s cause of action for malicious prosecution because there had been no favorable termination reflecting the merits of the underlying action.

A plaintiff in a malicious prosecution action must plead and prove that the prior judicial proceeding of which he complains terminated in his favor.

(Babb

v.

Superior Court

(1971) 3 Cal.3d 841, 845 [92 Cal.Rptr. 179, 479 P.2d 379].) Furthermore, the termination must reflect on the merits of the underlying action.