Blancett v. Burr

California Court of Appeal Jul 18, 1929 No. Docket No. 5624.Published

Before: Houser

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Holding. The court held that a defendant may be held civilly liable for malicious prosecution even if they did not personally sign the criminal complaint or affidavit, provided they were the proximate and efficient cause of setting the law in motion.

Issues

Whether a defendant can be liable for malicious prosecution if they did not personally sign the criminal complaint or affidavit.
Whether the privilege provided by section 47 of the Civil Code bars an action for malicious prosecution based on statements made to procure criminal process.

Disposition. reversed

Quotations verified verbatim against the opinion

“the test of liability in an action for malicious prosecution is whether the defendant was actively instrumental or was the proximate and efficient cause of maliciously putting the law in motion.”

“it is not necessary that the complaint or information on which the prosecution is based should have been signed by the person sought to be held liable in order to establish his liability in an action for malicious prosecution.”

HOUSER, J.

Plaintiffs appeal from a judgment ren-

dered against them in consequence of an order sustaining a demurrer to their complaint against defendants without leave to amend the complaint.

The action was for damages alleged to have been suffered by plaintiffs by reason of the malicious prosecution of a criminal action against them instituted and maintained by defendants. The gist of the complaint was that “the said defendants, by joint and concerted action, and while contriving and maliciously intending to injure said plaintiffs, falsely, maliciously and without probable cause, procured and caused, certain criminal process to be issued against said plaintiffs, by falsely, malicously and without probable cause,” making a certain specified statement “and others of like import” to a chief of police, by reason of which he made an affidavit and caused a search-warrant to issue as against the home of plaintiffs, and also caused

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a criminal complaint to issue against plaintiffs wherein they were charged with the commission of a designated criminal offense.

Without reference to what may be the necessary allegations in a complaint of the character of that here involved, the principal point suggested and presented to this court by the parties to this appeal, is whether one may be civilly liable who, without

personally

making the affidavit required as a basis for the issuance of a criminal complaint, has falsely, maliciously and without probable cause procured the criminal process to issue.

The general rule appears to be that “one who procures a third person to instigate a malicious prosecution is liable in damages to the party injured to the same extent as if he had instituted the proceeding himself. . . . and that it is not necessary that the complaint or information on which the prosecution is based should have been signed by the person sought to be held liable in order to establish his liability in an action for malicious prosecution. It is enough if he was instrumental in setting the law in motion and caused the prosecution to proceed.” (Ann. Cas. 1918A, pp. 485, 486, where authorities, including

Blancett v. Burr

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HOUSER, J.

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