Ferraris v. Levy

TAYLOR, J.

The plaintiff appeals from a judgment of dismissal sustaining the defendants’ general demurrer to her complaint for malicious prosecution, without leave to amend. The sole question is whether the complaint sets forth sufficient facts to state a cause of action.

The complaint alleged that the plaintiff, Katherine Ferraris, was engaged in litigation concerning the possession of certain property with the defendants, William Eastland and his attorney, Raymond Levy. William Eastland is the nephew of plaintiff’s deceased transferor, Edna Black, as well as the conservator and executor of the decedent’s estate. The plaintiff alleged that with malice and without probable cause, the defendants instituted several judicial proceedings which were all terminated in the plaintiff’s favor: the first cause of action stated that the defendants procured the District Attorney of San Francisco to issue a citation for petty theft and malicious mischief; the second, that the defendants procured from the Postmaster of San Francisco an order to show cause why the plaintiff should not be prosecuted for the destruction and concealment of another’s [Edna Black’s] mail; the third, that the defendants filed an affidavit pursuant to section 613 of the Probate Code and obtained an order requiring the plaintiff to appear and show cause why she should not be held in contempt. The order sustaining the demurrer took judicial notice of the other proceedings pending between the parties, i.e., probate proceeding No. 158619 (the conservatorship of the Estate of Edna Black), No. 158817 (Eastland’s petition for letters testamentary), and civil proceeding No. 514096 (Eastland’s petition to quiet title to the disputed property awaiting jury trial).

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

(Jaffe

v.

Stone,

18 Cal.2d 146 [114 P.2d 335, 135 A.L.R. 775]).

We turn first to the third cause of action, as we find

[411]

it meritorious. Section 613 of the Probate Code provides that upon complaint of the executor or other person interested in the estate of a decedent that any person has concealed or fraudulently disposed of or has any knowledge of any property of the decedent, the court may cite the suspected person to appear and examine him on oath. If the accused person fails to appear, the court has power to order imprisonment for contempt