iLaw Dictionary			USAConstitution Law
						California			BankruptcyCode.US
						Law Dictionary			iBusiness Center.US
						Summary Adjudication			United States Law.US

A Legal and Business Portal-Home

iLaw Dictionary
California
Law Dictionary
Summary Adjudication
(Hindin v. Rust)

Summary Adjudication-General Principles-Malicious Prosecution-Primary Right
(Hindin v. Rust)

The issue we consider in this appeal is whether, in the context of a malicious prosecution action, Code of Civil Procedure section 437c, subdivision (f)(1) permits summary adjudication on the ground that some but not all claims in a single underlying action were supported by probable cause.[1]  Because such a determination does not completely dispose of the entire malicious prosecution cause of action, we conclude that this statute does not permit summary adjudication under these circumstances.  Therefore, in this case, the trial court’s grant of summary adjudication on this ground (as well as its subsequent piecemeal grant of summary judgment as to the other claim in the underlying action) was improper and we reverse. 

DISCUSSION

I.  Because the Determination that State Farm Had Probable Cause to Bring One of its Two Claims in Federal Court Did Not Completely Dispose of the Attorney Appellants’ Malicious Prosecution Cause of Action, the Trial Court Erred in Granting Summary Adjudication.  

            Appellant attorneys filed a lawsuit for malicious prosecution following State Farm’s unsuccessful prosecution of its lawsuit in federal court seeking (a) restitution of $30 million paid in settlement of a bad faith action, based on the allegedly fraudulent conduct of the attorney appellants’ clients; and (b) return of internal State Farm documents produced during the bad faith litigation, as well as related equitable relief, based on the attorney appellants’ alleged violation of one of the settlement agreements signed in connection with resolution of the bad faith case.  The attorney appellants argue, whether State Farm’s claims in the underlying federal action are properly characterized as distinct or interrelated, their malicious prosecution action contains but a single cause of action within the meaning of section 437c, subdivision (f)(1) and, therefore, the trial court impermissibly granted State Farm’s motion for summary adjudication directed only to the restitution claim.  We agree. 

            Section 437c, subdivision (f)(1) provides:  “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages [as specified in Civil Code section 3294], or one or more issues of duty . . . .  A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”  (Italics added.) 

            Prior to the 1990 amendments to the summary judgment law, a party could move for “summary adjudication of issues” either by itself or as an alternative to summary judgment.  (Former § 437c, subd. (f), Stats. 1989, ch. 1416, § 16, pp. 6229-6230.)  If the evidence supported a finding that there were no triable issues of fact as to some but not all of the issues involved in the action, the trial court was required to specify that those issues were “without substantial controversy.”  (Ibid.)  In 1990 the Legislature amended former section 437c, subdivision (f) “to stop the practice of adjudication of facts or adjudication of issues that do not completely dispose of a cause of action or a defense.”  (Stats. 1990, ch. 1561, § 1, p. 7330; see DeCastro West Chodorow & Burns, Inc. v. Superior Court (1996) 47 Cal.App.4th 410, 418-419 [motion for summary adjudication may not attack one particular compensatory damage claim if granting the motion would leave intact the cause of action containing claims for the remaining items of compensatory damages].)[5]  New subdivision (f), effective January 1, 1991, eliminated the reference to “issues without substantial controversy” and provided instead for a motion for summary adjudication directed to an entire cause of action:  “If it is contended that one or more causes of action within an action has no merit or that there is no defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both . . . any party may move for summary adjudication as to that cause or causes of action [or] that affirmative defense . . . .”  (Stats. 1990, ch. 1561, § 2, pp. 7331-7332.)[6]

            In Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848 (Lilienthal), the Court of Appeal considered whether the 1990 revision to section 437c, subdivision (f) permitted a motion for summary adjudication challenging “a separate and distinct alleged obligation or claim” even though combined with other wrongful acts and pleaded as a single “cause of action.”  (Id. at p. 1854.)  The Court of Appeal issued a peremptory writ of mandate directing the trial court to consider the motion on its merits:  “In our judgment the clearly articulated legislative intent of section 437c, subdivision (f), is effectuated by applying the section in a manner which would provide for the determination on the merits of summary adjudication motions involving separate and distinct wrongful acts which are combined in the same cause of action.  To rule otherwise would defeat the time and cost saving purposes of the amendment and allow a cause of action in its entirety to proceed to trial even where, as here, a separate and distinct alleged obligation or claim may be summarily defeated by summary adjudication.”  (Id. at pp. 1854-1855; accord, Mathieu v. Norrell Corp. (2004) 115 Cal.App.4th 1174, 1188 [allegations defendant employer violated FEHA by permitting hostile-environment sexual harassment and retaliating after employee complained, discrete grounds for liability, constitute separate cause of action for purposes of § 437c, subd. (f)(1); Edward Fineman Co. v. Superior Court (1998) 66 Cal.App.4th 1110, 1116 [claims that bank improperly paid checks in 1991 and 1992 properly challenged in motion for summary adjudication as untimely although combined in single “cause of action” with claims asserting same theory of liability but involving checks paid in 1995 and 1996].)

            Whether a complaint in fact asserts one or more causes of action for pleading purposes depends on whether it alleges invasion of one or more primary rights.  “The primary rights theory is a theory of code pleading that has long been followed in California.  It provides that a ‘cause of action’ is comprised of a ‘primary right’ of the plaintiff, a corresponding ‘primary duty’ of the defendant, and a wrongful act by the defendant constituting a breach of that duty.  [Citation.]  The most salient characteristic of a primary right is that it is indivisible:  the violation of a single primary right gives rise to but a single cause of action.  [Citation.]”  (Crowley v. Katleman (1994) 8 Cal.4th 666, 681 (Crowley) [suit for malicious prosecution lies for bringing an action charging multiple grounds of liability when some but not all of those grounds were asserted with malice and without probable cause].)  “As far as its content is concerned, the primary right is simply the plaintiff’s right to be free from the particular injury suffered.  It must therefore be distinguished from the legal theory on which liability for that injury is premised.”  (Ibid.)

            The manner in which a plaintiff elects to organize his or her claims within the body of the complaint is irrelevant to determining the number of causes of action alleged under the primary right theory.  “[I]f a plaintiff states several purported causes of action which allege an invasion of the same primary right he has actually stated only one cause of action.  On the other hand, if a plaintiff alleges that the defendant’s single wrongful act invaded two different primary rights, he has stated two causes of action, and this is so even though the two invasions are pleaded in a single count of the complaint.”  (Skrbina v. Fleming Companies (1996) 45 Cal.App.4th 1353, 1364.)  Specifically in the context of a malicious prosecution action the Supreme Court has explained, “When a complaint alleges multiple theories of liability or ‘counts,’ the counts ‘are merely ways of stating the same cause of action differently.’  [Citation.]  Accordingly, the only way a litigant can show probable cause for the cause of action as a whole—or for the ‘primary right’—is to show probable cause for each of the counts or theories alleged.  In this event the whole is indeed the sum of the parts.”  (Crowley, supra, 8 Cal.4th at p. 683, fn. 11; and see Jenkins v. Pope (1990) 217 Cal.App.3d 1299, fn. 3 [“Violation of a single primary right gives rise to only one cause of action, even if a plaintiff has various forms of relief or theories of relief available”].) 

            In this case the underlying federal action by State Farm apparently asserted the invasion of two different primary rights by the attorney appellants, the attorneys for State Farm’s former insureds—one based in contract and another grounded in the right to be free from fraudulent conduct.[7]  But the attorney appellants’ malicious prosecution action sought to vindicate a single primary right—the right to be free from defending against a lawsuit initiated with malice and without probable cause.[8]  Although State Farm allegedly breached that right in two ways, it nevertheless remained a single right.  (Crowley, supra, 8 Cal.4th at p. 683 [“under the primary right theory a properly pleaded cause of action must be premised on a single primary right even thought it states multiple grounds of liability”]; see Bay Cities Paving & Grading, Inc. v. Lawyers’ Mutual Ins. Co. (1993) 5 Cal.4th 854, 860.)

            State Farm argues that Crowley, supra, 8 Cal.4th at pages 678 to 679,  “actually supports [its] position” as “it holds that each separate theory of liability can support a separate malicious prosecution claim and could be sued upon independently.” ~(RB 37)~ Quite to the contrary, the Supreme Court in Crowley specifically observed that, if Crowley (the malicious prosecution plaintiff) had filed a second malicious prosecution action alleging that the defendants lacked probable cause for the ground of their will contest that he had omitted from his original malicious prosecution complaint, “defendants could have invoked the primary right theory to support a plea in abatement [if the first action was still pending when the second was filed] or, if the [first action was concluded in defendants’ favor], the bar of res judicata.”  (Crowley, supra, 8 Cal.4th at p. 682.)  “‘Even where there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief.’”  (Id. at pp. 681-682.) 

            As the Supreme Court reaffirmed in Crowley, supra, 8 Cal.4th at page 671, “a suit for malicious prosecution lies for bringing a[ prior] action charging multiple grounds of liability when some but not all of those grounds were asserted with malice and without probable cause.”  As a matter of “policy under the substantive law of malicious prosecution,” a defendant cannot escape liability by showing “partial probable cause” for the underlying action.  (Id. at pp. 678, 683.)   It follows then that a motion for summary adjudication purporting to establish that some but not all of the multiple grounds for liability asserted in the prior action were brought with probable cause is improper for failure to completely dispose of an entire cause of action as required under subdivision (f)(1) of section 437c.[9]  (Crowley, supra, 8 Cal.4th at pp. 678, citation omitted, italics added [“‘it is not necessary that the whole proceeding be utterly groundless, for, if groundless charges are maliciously and without probable cause, coupled with others which are well founded, they are not on that account less injurious, and, therefore, constitute a valid cause of action.’  [Citations.]”].)

            Indeed, in this case, we have already determined that State Farm did not have probable cause to pursue the document claim in the underlying action.[10]  In presenting evidence and authority to establish that its claim for restitution of the $30 million settlement was brought with probable cause, State Farm may have established an “issue[] without substantial controversy,” but such “issues” are no longer proper bases for summary adjudication motions under section 437c, subdivision (f)(1).[11]  However, the trial court is not without procedural devices to deal with the issue of probable cause for the restitution claim.  (See, e.g., DeCastro West Chodorow & Burns, Inc. v. Superior Court, supra, 47 Cal.App.4th at p. 423 [although motion for summary adjudication was improper for failure to dispose of entire cause of action, defendants could still pursue motion in limine or motion to strike]; Macy’s California, Inc. v. Superior Court (1995) 41 Cal.App.4th 744, 748, fn. 2.) 

DISPOSITION

            The judgment is reversed and this matter is remanded to the trial court with instructions (1) to vacate the order granting State Farm’s summary judgment motion on statute of limitations grounds and enter an order denying that motion, (2) to vacate the order granting State Farm’s motion for summary adjudication of the restitution claim and enter an order denying that motion and (3) for further proceedings consistent with this opinion.  The parties are to bear their own costs of appeal. 
 

Hindin v. Rust 5/24/04 B160031malicious prosecution summary judgment summary adjudication 
 

May 24 2004

B160031 [PDF] [DOC]

Hindin v. Rust 5/24/04 B160031CA2/7

California: Authoritative-Law Dictionary: Table of Contents    
Glossaries Directory Table of Contents   
Thesaurus Directory  
Dictionaries Directory Table of Contents

Thomas - Legislative Information on the Internet |Check Your Credit Score
Directory of Medical Dictionaries: Table of Contents | California Injury (Torts) Law
USA Entertainment.US | FederalCriminalProcedure.Com |
FederalCriminalProcedure.Com | iLaw Dictionary.Com |  Library of Congress
United States Law Consumer Law TITLE PAGE | USA Entertainment.US
iBusiness Center.US | United States Law: Constitutional Law: Constitutions of  The World: TITLE PAGE
California Contracts Law.Com | California Injury (Torts) Law
Phone Directories From Around the World New | California Law Revision Commission 
California Civil Procedure.Com | Federal Civil Procedure.Com