Lujan v. Gordon

[262]

Opinion

FILES, P. J.

This case raises the issue whether an action for malicious prosecution may be maintained against a person who had no part in the commencement of the action, but who participated in it at a later time. Although the cases in point are sparse, they indicate that liability may be imposed against such a person.

The appeal is from an order dismissing the action as. to two defendants only, after their general demurrer to the second amended complaint had been sustained with leave to amend, and plaintiff declined to amend. The complaint alleges in effect that on December 14, 1965, an attorney named Jacoves maliciously and without probable cause brought civil action number C 874533, on behalf of Fiore against the party who is plaintiff here, which action terminated in favor of the latter on December 3, 1974. It is also alleged that on June 28, 1973, defendants Gordon, Lipstone and Jacoves were members of a law firm and at all times thereafter “defendant Ira Jacoves acted as the agent of Gordon,' Lipstone & Jacoves with respect to the matters alleged herein, and within the course and scope of his agency.”

It is not disputed that the allegations of the complaint state a cause of action against Jacoves and Fiore. (See

Bertero

v.

National General Corp.

(1974) 13 Cal.3d 43, 50 [118 Cal.Rptr. 184, 529 P.2d 608, 65 A.L.R.3d 878].)

The allegation that Jacoves acted as the agent of Gordon and Lipstone is a statement of ultimate fact which is sufficient to charge Gordon and Lipstone with whatever Jacoves did after June 28, 1973. (See

Skopp

v.

Weaver

(1976) 16 Cal.3d 432, 437 [128 Cal.Rptr. 19, 546 P.2d 307].)

Defendants assert that the superior court took judicial notice of its file in the action of Fiore v. Lujan, case number C 874533, and they ask this court to do the same to establish that as a matter of law Jacoves and Fiore were not agents of Gordon and Lipstone. What defendants rely upon is that file number C 874533 shows the complaint was filed by Jacoves alone as attorney for Fiore, and there is no substitution of attorneys as required by Code of Civil Procedure sections 284 and 285 substituting the firm of Gordon, Lipstone. & Jacoves in place of Jacoves. The file does contain a number of documents filed on behalf of Fiore carrying above the caption the name of “Law Offices Gordon, Lipstone