Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of mandate. Steve Malone, Judge, Super. Ct. No. CIVVS902113
Law Offices of Kenneth Chong, Kenneth Chong and Yoonju Kim, in pro. per. For Petitioners.
No appearance for Respondent.
OPINION
GAUT, Acting P. J.
Law Offices of Simon Soo-Kil Chang and Simon Soo-Kil Chang for Real Party in Interest.
In this matter we have reviewed the petition and the opposition thereto, which we conclude adequately address the issues raised by the petition. We have determined that resolution of the matter involves the application of settled principles of law, and that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
The elements of a cause of action for malicious prosecution are (1) a favorable determination on the merits of the underlying action, (2) which was brought without probable cause, and (3) which was initiated with malice. (Contemporary Services Corp. v. Staff Pro Inc. (2007) 152 Cal.App.4th 1043, 1056 (Contemporary).) In order for a termination of a lawsuit to be considered favorable with regard to a malicious prosecution claim, the termination must reflect on the merits of the action and the plaintiff’s innocence of the misconduct alleged in the lawsuit. (Ibid.)
A termination by dismissal is favorable when it reflects the opinion of someone, either the trial court or the prosecuting party, that the action lacked merit or if pursued would result in a decision in favor of the defendant. The focus is not on the malicious prosecution plaintiff’s opinion of his innocence, but on the opinion of the dismissing party. The test is whether or not the termination tends to indicate the innocence of the defendant or simply involves technical, procedural or other reasons that are not inconsistent with the defendant’s guilt. (Contemporary, supra, 152 Cal. App.4that pp. 1056-1057.)
A dismissal based on technical or procedural grounds is not considered a favorable termination. Examples include dismissals pursuant to a settlement, or on the grounds of laches. Also a dismissal to avoid incurring litigation expenses is not considered a favorable termination. (Oprian v. Goldrich, Kest & Associaties (1990) 220 Cal.App.3d337, 344-345 (Oprian).)
In Robbins v. Blecher (1997) 52 Cal.App.4th 886, the defendants in the malicious prosecution action had filed an alter ego action against the plaintiffs in that action after obtaining an antitrust judgment against a corporation owned by the plaintiffs. After the reversal of the antitrust judgment, the defendants voluntarily dismissed the alter ego action as moot. The plaintiffs responded by filing a malicious prosecution action, contending that the dismissal constituted a favorable termination because the defendants could no longer establish an element of the alter ego action after the reversal of the antitrust judgment. The Court of Appeal disagreed and affirmed the dismissal of the malicious prosecution action. According to the court, the defendants voluntarily dismissed the action because they “had simply lost standing to pursue” the alter ego action. (Id. at p. 894.) Robbins was decided on demurrer.
Here, the voluntary dismissal does not necessarily constitute a favorable termination in favor of real party in interest. The reasons for the termination must be examined to see if it reflects the opinion of either the court or the prosecuting party that the action would not succeed. (See Oprian, supra, 220 Cal.App.3dat p. 343.) Petitioners claim that the dismissal of real party in interest avoided an expensive trial, since they recovered a default judgment against another party. The dismissal was not entered under the impending threat of a summary judgment motion or other reason to believe that petitioners thought they would lose. The allegation that petitioners dismissed their action without prejudice is not a sufficient pleading of a favorable termination. (See Jaffe v. Stone (1941) 18 Cal.2d 146, 149; Eells v. Rosenblum (1995) 36 Cal.App.4th 1848, 1855.) The trial court should have sustained the demurrer.
DISPOSITION
Let a peremptory writ of mandate issue directing the Superior Court of San Bernardino County to vacate its order overruling the demurrer and to issue a new order sustaining the demurrer. The superior court shall grant leave to amend only if it determines that real party in interest can allege additional facts to show that the dismissal constituted a favorable termination.
Petitioner is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
Petitioners are awarded costs.
We concur: HOLLENHORST J., MILLER J.