As a general rule, California malicious prosecution actions are dicey propositions insofar as they always subject the plaintiff to a potential Anti-SLAPP motion from the defendant pursuant to California Code of Civil Procedure section 425.16.   At a minimum, such a motion requires the plaintiff to immediately produce admissible evidence establishing the malicious prosecution claim.  The failure to produce such evidence causes the dismissal of the case and may result in the plaintiff having to pay the defendant’s reasonable attorney fees for bringing the motion.   Malicious prosecution cases arising out of family law court matters are even more problematic.

As a general rule, for public policy reasons plaintiffs are not entitled to bring malicious prosecution actions stemming from matters originating in the family law courts. Bidna v. Rosen (1993) 19 Cal.App.4^th 27.  A very narrow exception to the Bidna rule was carved out by Nicholson v. Fazeli (2003) 113 Cal.App.4^th 1091, wherein a wife was permitted to maintain a malicious prosecution complaint against a Trust (which had previously filed a cross-complaint in the wife marital dissolution action) because the Trust’s cross-complaint did not implicate any family law issues (i.e., it did not specifically involve allegations related to marital status, child custody, spousal support, or the division of community property).  Because the Trust’s cross-complaint was a fairly rare animal (the vast majority of all family law court pleadings will involve some family law issue), parties contemplating filing a malicious prosecution action arising out of a family law court are strongly advised to consult with an attorney to obtain advice before filing a complaint that might be immediately dismissed and, even worse, might subject the party to paying the other side’s attorney fees. source

Proving the “Prior Action” Requirement of a Malicious Prosecution Case

How To Sue For Malicious Prosecution For A Civil (Not Criminal) Lawsuit.

You get sued.  They claim to be the “victim,” but you are the real victim.  You are being sued based on a falsehood … for their improper motives.  Can you strike back for justice?

Victims often ask lawyers whether they can sue for malicious prosecution.  Situations arise when a victim has been sued wrongfully.  They have stress.  They have legal expenses.  Other costs come in.  The wrongful lawsuit damages their reputation.  It may even be damage their credit rating.

Some victims merely want emotional support.  They want someone to tell them they are right, the person that sued them is wrong, and provide sympathy.  That is certainly the expected role of family, and friends.  It is a whole other matter entirely to counter – sue the person and attempt to win money from them.

The Benefits of Malicious Prosecution Suits

Malicious prosecution lawsuits have three main benefits:

1. Compensation for out of pocket and other expenses.
2. Deter or prevent the wrongdoer from wrongfully suing others in the future.
3. Deter other similar wrongdoers from creating victims.

The same legal analysis must be completed regardless of whether you are a victim or an attorney.  This article explains the process in a civil setting.  Look to our companion article on criminal cases.

The Technical Legal Test to Win at Malicious Prosecution

The traditional elements of a lawsuit for malicious prosecution are as follows:

1. The commencement or prosecution of a proceeding against the victim;
2. “Legal Causation” by the present defendant;
3. The lawsuit’s termination in favor of the present plaintiff;
4. The absence of probable cause for the proceeding;
5. The presence of malice;
6. Damage to the victim.

State ex rel. O’Basuyi v. Vincent, 434 S.W.3d 517, 519 (Mo. banc 2014);

Bonzo v. Kroger Grocery and Baking Co., 125 S.W.2d 75 (Mo. 1939);

Higgins v. Knickmeyer-Fleer Realty and Investment Co., 74 S.W.2d 805,812 (Mo. 1934).

This is the traditional law for malicious prosecution.  Is it confusing you?  There is an easier analysis.

The Easier to Understand Test for Malicious Prosecution

The Missouri Approved Instructions for a jury trial present a straightforward analysis for evaluating potential malicious prosecution cases.  It is meant for ordinary people to understand and will be easier for you.

The test for malicious prosecution is as follows:

• First, did the wrongdoer instigate or continue a judicial proceeding (a lawsuit) against the victim (you) that the victim won?
• Second, in doing that, did the wrongdoer acted maliciously and without reasonable grounds?
• Third, was the victim damaged?

Paraphrase of M.A.I. 23.07 (2000 Rev.).

What Does “Maliciously” mean?

You may have noticed some technical terms.  They are important.  The first term is “maliciously.”  In a civil setting, maliciously means intentionally doing a wrongful act without just cause or excuse.  It does not necessarily mean hatred, spite, or ill will.  M.A.I. 16.01 (1) (1996 new); see also Sanders v. Daniel Intern Corp., 682 S.W.2d 803 (Mo. banc 1984); and Proctor v. Stevens Employment Services, Inc., 712 S.W.2d 684 (Mo. banc 1986).

What Is Reasonable Grounds?

Reasonable grounds is also needed for your analysis of whether you have a malicious prosecution case.  Luckily, reasonable grounds is defined.  “Reasonable grounds” means the existence of facts which would cause an ordinarily careful person to believe plaintiff (the victim) was guilty of the offense charged.  See Palcher v. JC Nichols Co., 783 S.W.2d 166 (Mo. App. 1990).

Our Law Dislikes Malicious Prosecution Cases

Malicious prosecution cases are not favored in the law.  Stafford v. Muster, 582 S.W.2d 670, 675 (Mo. banc 1979).  Because of this, you as the victim must be prepared to provide “strict and clear proof” of each of the elements of malicious prosecution.  Id.

Probable Cause Weighs In Too!

The second element of malicious prosecution requiring reasonable grounds is closely related to probable cause.  You should plan on addressing the probable cause elements as part of your malicious prosecution case.

The Missouri Supreme Court has set out a definition for probable cause in civil cases.  It is as follows:

1. The person’s beliefs in the facts alleged,
2. Based upon sufficient circumstances to reasonably induce such belief by a person of ordinary prudence in the same situation, plus
3. A reasonable belief that under the facts the claim may be valid under the applicable law.

Holly v. Caulfield, 49 S.W.3d 747, 750-51 (Mo. App. 2001).

The Easy to Understand Test for Probable Cause

Basically, you need to ask yourself the following questions:

• Did the person who sued you believe the facts they were alleging?
• Would any reasonable person believe those facts?
• Did the law allow a lawsuit against you; under those facts, assuming they were true?

Can I Get Punitive Damages To Punish?

Punitive damages are called “exemplary damages” and are not favored by the courts, much like malicious prosecution cases.  To get punishment damages in a malicious prosecution case, “the proceedings must have been initiated or continued primarily for a purpose other than that of securing the proper Judication of the claim on which they are based.”  Proctor v. Stevens Employment Services, Inc., 712 S.W.2d 684 (6, 7) (Mo. banc 1986).  Remember that punitive damages require a separate determination by the court by “clear and convincing evidence,” which is a higher standard.  Remember, who you are suing must have acted with a conscious disregard for your rights.  I encourage you look to my article on punitive damages to see the specific elements of that cause of action.

Conclusion

Malicious prosecution cases are complex and have many legal requirements, as you can see.  This is why malicious prosecution is so often an accusation and so seldom an actual lawsuit.

Usually, these lawsuits come about when it is either debt collector who does not care what the facts are and sues as many people as they can to collect money.  Secondly, we see malicious prosecution lawsuits when it is an actual person who is just suing to “get at” somebody.  I wish you luck in your analysis and hope any victims can receive just compensation based upon our analysis. source

Learn more about these sujects

• Malicious Prosecution
• Prosecutional Misconduct
• Vindictive Prosecution
• Retaliatory Prosecution
• Abuse of Process

Selected Issues in Malicious Prosecution Cases

Malicious Prosecution / Prosecutorial Misconduct

Vindictive Prosecution – Georgetown University

VINDICTIVE AND SELECTIVE PROSECUTION

What is Abuse of Process?

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

What’s the Difference between Abuse of Process and Malicious Prosecution?

Malicious Prosecution Actions Arising Out Of Family Law Proceedings: Proceed Carefully

Frivolous, Meritless or Malicious Prosecution

SCOTUS Makes It Easier To Sue Police And Prosecutors For Malicious Prosecution

Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors

National District Attorneys Association – National Prosecution Standards – NDDA

What Happens If Charges Are Dropped Before Trial?

Functions and Duties of the Prosecutor – Prosecution Conduct

Possible courses of action Prosecutorial Misconduct

Misconduct by Judges & Prosecutor – Rules of Professional Conduct

PC 1385 – Dismissal of the Action for Want of Prosecution or Otherwise

Thomp$on v. Clark – Maliciou$ Pro$ecution 

Reichle v. Howards (2012) – Retaliatory Prosecution Claims Against Government Officials –1st Amendment

People v. Superior Court (Greer) 5th & 8th Amendment – Bias / Malicious Persecutor

Hartman v. Moore (2006) –Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

What is a Fiduciary Duty; Breach of Fiduciary Duty

Epic SCOTUS Decisions

learn more about Anti-SLAPP:

Anti-SLAPP Law in California 1st Amendment Freedom of Press & Speech

California Supreme Court Confirms that the “anti-SLAPP” Statute Applies to Claims of Discrimination and Retaliation 

Malicious Procurement of A Search or Arrest Warrant

Penal Code 170. Every person who maliciously and without probable cause procures a search warrant or warrant of arrest to be issued and executed, is guilty of a misdemeanor. (Enacted 1872.)

READ UP MORE….. on Malicious Prosecution and Thompson Vs. Clark and other SCOTUS Rulings here

This is a violation of the process also known as abuse of process not to be confused Due Process which is another part of this violation

The term ‘process’ refers to the proceedings in any civil lawsuit or criminal prosecution and usually describes the formal notice or writ used by a court to exercise jurisdiction over a person or property. Such process compels the defending party to appear in court, or comply with an order of the Court. It may take the form of a summons, mandate, subpoena, warrant, or other written demand issued by a court. When one files suit, one normally has a summons issued by the court which compels the defendant to appear within thirty days to contest the matter.

Abuse of process refers to the improper use of a civil or criminal legal procedure for an unintended, malicious, or perverse reason. It is the malicious and deliberate misuse of regularly issued civil or criminal court process that is not justified by the underlying legal action. to learn more about ABUSE of PROCESS click here and to learn abusing the Constitutinal Right to Due Process click here which involves several Constutional Rights afforded by the Amendments

• Fourth Amendment
• Fifth Amendment 
• Fourteenth Amendment
• Malicious Prosecution and Thompson Vs. Clark and other SCOTUS Rulings click here
• Prosecutorial misconduct – When prosecutors abuse their power by breaking the law or breaching a professional code of conduct.

Sources Cited / Notes:

¹ Blog Article Published June 12, 2018.
² In re V.V. (2011) 51 Cal.4th 1020, 1027-1028.
³ People v. Garcia (2003) 111 Cal.App.4th 715.
⁴ People v. Garcia (2003) 111 Cal.App.4th 715, 721.

How We Got the Fourth Amendment Exclusionary Rule and Why We Need It

The exclusionary rule evolved because of the ineffectiveness of the warrant procedure in preventing illegal searches and seizures, and it remains effective as a means of preventing the government from achieving the ends of its illegal activity and as a symbol of the justice system’s commitment to the citizen rights mandated in the fourth amendment.

The fourth amendment provides for a warrant system intended to prevent unreasonable searches and seizures; however, there is no specific constitutional provision for the exclusion of evidence illegally acquired. The framers of the Constitution exaggerated the effectiveness of the warrant procedure, but it does not follow that they were not serious about preventing the evils the warrant procedure was designed to address. The exclusionary rule was adopted by the courts as a rule of evidence to deal with the failure of the warrant system to address after-the-fact fourth amendment violations.

California Search Warrants – 7 Key Things to Know

In California, a search warrant is issued by a judge and authorizes law enforcement to search a person, a residence, a vehicle, a place of business, or any other specified area suspected of containing evidence of illegal activity.

Once police find the evidence they are seeking, the search warrant allows officers to seize that evidence.

Unless a search is

1. authorized by your consent,
2. incident to a lawful arrest, or
3. under some other recognized exception,

it must be executed pursuant to a valid search warrant.

That said, there are many restrictions on when and how cops may execute California search warrants. Violations of these rules may result in a reduction (or even a dismissal) of your criminal charges.

In order to help you understand the law, our criminal defense attorneys will explain 7 key things to know about search warrants in California:

• 1. Who can authorize a search warrant?
• 2. What are the search warrant requirements for police in California?
• 3. Are there rules as to the use of informants?
• 4. How can a defense lawyer challenge the validity of a search warrant?
• 5. How are the police allowed to execute a warrant?
• 6. What is the knock and announce rule?
• 7. What is a motion to suppress evidence?

1. Who can authorize a search warrant?

Although a search warrant is issued on behalf of the state (that is, by the prosecuting agency), the judge actually issues and signs it. ^{1 2 3} The purpose of having a judge issue the warrant instead of the police or a prosecutor is to ensure that a neutral, detached individual evaluates the circumstances of the criminal investigation.⁴

Before the judge can sign off, two requirements must be met: The judge must reasonably believe

1. that a misdemeanor or felony has been committed, and
2. that evidence of that criminal case is likely to be found in the place(s) described in the search warrant.⁵

If the facts presented in the warrant application are convincing, the judge must sign and issue the search warrant.⁶

Also, we should clarify the distinction between search warrants and two other common types of warrants.

• A California arrest warrant is usually issued when criminal charges have been filed, and it authorizes the police to arrest you on the charges.
• A California bench warrant is issued by a judge for violating some rule of court, such as failing to appear for your court hearing or failing to pay a fine that was required as a condition of probation.

2. What are the search warrant requirements for police in California?

There are certain requirements that law enforcement must meet in order to obtain a search warrant in California. They must show probable cause that the locations to be searched contain evidence, instruments or fruits of criminal activity.

The following are examples of the types of grounds on which a California search warrant may be issued:

• if the sought property was allegedly stolen
• if the sought property was allegedly used as a means to commit a felony
• if the sought property is evidence of the fact that a felony has occurred or that you have committed a felony
• if the sought property is in possession of someone who intends to use it to commit a crime or in the possession of another to whom they may have delivered it for the purpose of concealing it or keeping it from being discovered
• if the sought property reveals child pornography
• if an arrest warrant has already issued.⁷

It should be noted that if the sought property is held by an attorney, doctor, psychotherapist, or member of the clergy, a special procedure will be held before that evidence may be seized. Even then, the attorney, doctor, therapist, or clergyman must be the individual suspected of engaging in the alleged criminal activity.⁸

Before a judge issues a search warrant, they must have probable cause to do so.

Probable cause

“Probable cause” is a legal phrase. It refers to a “reasonable” belief that criminal activity is taking (or has taken) place.

So before a judge issues a search warrant, they must have a reasonable belief that the person/property specifically described in the warrant application (otherwise known as an “affidavit“) will be found in the searched location.⁹

Before finding that probable cause exists, the judge may question (under oath)

• the officer,
• prosecutor, or
• state investigator¹⁰ who applied for the warrant, and
• any witnesses that the requesting individual relied on to determine that a warrant was necessary.

These affidavits may be written or oral, and presented in person, via the telephone, by fax, or even e-mail.¹¹ They also must contain the facts that establish the grounds for the application or the probable cause for believing that they exist.

Affidavits are under penalty of perjury.¹²

Search warrants v. other types of warrants

3. Are there rules as to the use of informants?

Police routinely rely on information provided by informants. Informants are individuals who provide information about people, organizations, or activities to the police without the consent of those people or organizations.

That said, the judge must be informed of some of the facts that led the informant to their conclusion that there is alleged criminal activity.¹³ A mere opinion that a person or property is involved in a crime is therefore insufficient without evidence to support it.

Since it is the judge who must determine if there is probable cause to issue the warrant, they must believe that the informant’s information is reliable. This may be established by:

• the identity of the informer,
• past experiences with the informant in which they have proven to be reliable, and/or
• corroboration by the officer’s personal observations or other evidence.¹⁴

The informant’s identity

The judge may require disclosure of the informant’s name or may require them to give a statement under oath as to the information they provided to the police.¹⁵ However, just because the informant’s identity is disclosed to the judge does not mean it will necessarily be disclosed to the defense.

A judge is allowed to seal any or all of the affidavit to protect the identity of a confidential informant if that testimony helped establish the probable cause that led the judge to issue the warrant.¹⁶

Although the judge will not reveal the informant’s identity simply because you wish to use it to attack the judge’s finding of probable cause, they may ask the prosecutor to disclose it if your motion to traverse and quash the search warrant has merit.¹⁷

4. How can a defense lawyer challenge the validity of a search warrant?

Although motions to quash and traverse would be more appropriately explained in the final section titled “Motion to Suppress Evidence“, they merit discussion here. They directly relate to informants and the probable cause required to obtain California search warrants.

A motion to “quash and traverse” challenges the affidavit (and underlying probable cause) that the judge relied on upon issuing the California search warrant:

• A motion to traverse challenges the truth of the affidavit.
• A motion to quash challenges the sufficiency of the affidavit (that is, even assuming the facts are true, whether they rise to the level of probable cause).

Although these motions may be filed separately or together, the terms are often used interchangeably. We will discuss them as one for the sake of simplicity.

California criminal defense lawyers may assert motions to traverse and quash a search warrant in three types of hearings:

1. in a Franks hearing (to assert that the author of the affidavit (otherwise known as the “affiant”) provided false information,
2. in a Luttenberger hearing (to assert that the informant provided false information), or
3. in a Hobbs hearing (which is based on a sealed affidavit).

Franks hearings

If you request a Franks hearing to quash and traverse a warrant because you believe the supporting affidavit contains false information, you must set forth the reasons why you believe that it is inaccurate.¹⁸ California criminal defense lawyers may do this by demonstrating that:

1. the affidavit contained a false statement,
2. the statement was made knowingly or with reckless disregard for the truth, and
3. that the statement was necessary (that is, “material”) to establish probable cause.¹⁹

It should be noted that if the affiant intentionally leaves out material information, they will be deemed to have provided materially false information “by omission”.²⁰

The court must hold an “in camera” hearing if the judge believes that you have effectively challenged the truth of the affidavit.²¹ An in-camera hearing is a private hearing held in the judge’s chambers.

During this hearing, the judge may question the affiant or informant to determine whether the affidavit is accurate, false, or misleading.²²

If the criminal defense attorney succeeds in proving that

1. the affidavit contained false material information, and
2. the remaining information is insufficient to support a finding of probable cause,

the judge must quash the California search warrant.

Once the search warrant is quashed, any evidence that was seized under the warrant will be suppressed.²³

*Suppressed evidence is discussed in the section titled “Motion to Suppress Evidence”.

Luttenberger hearings

When the affidavit supplying the probable cause contains information from an undisclosed informant, it is extremely difficult to establish that the affidavit is false – which is the standard to get a Franks hearing.

If the informant is not a material witness with respect to your guilt or innocence (an eyewitness to the alleged crime, for example), the prosecution is under no duty to disclose their identity.²⁴

A Luttenberger hearing takes place when you want to attack the truth of the affidavit but do not know the identity of the informant. In this hearing, the California criminal attorney may request information about:

1. the informant’s reliability,
2. their motive for providing information (for example, was the informant paid or offered leniency in exchange for their testimony?), and
3. any statements that the informant made in connection with the case.

Although the burden of proof is less strict than a Franks hearing, the defense still must cast doubt as to the truthfulness of the informant’s testimony. If you accomplish this, the court will conduct an in camera hearing to determine if the statements are material.²⁵

If the statements are material, the court will redact (or remove) any information that may disclose the informant’s identity before it provides you with the

• affidavit or
• supporting document(s).²⁶

If, during this hearing, you discover that the informant is a material witness to your guilt or innocence, you would move to disclose their identity at a Hobbs hearing.

Hobbs hearings

At a Hobbes hearing, the defense asks the judge to reveal the identity of the confidential informant upon whose information the California search warrant got issued.

When the entire affidavit has been sealed to protect the informant’s identity, it may be too difficult even to qualify for a Luttenberger hearing. When this is the case, the court must conduct an in-camera hearing upon receipt of your motion to traverse or quash the California search warrant.²⁷

Unless the prosecutor agrees, the hearing takes place without you or your criminal defense attorney.²⁸ During this closed hearing, the judge must decide

1. whether to maintain the confidentiality of the informant, and
2. whether the affidavit has been properly sealed.²⁹

If the court believes that the affidavit was properly sealed but does not believe that the information contained in it was false or misleading, it will simply deny your motion.³⁰

If, however, the court believes that you may succeed in your motion, it will first give the prosecution the opportunity to disclose their informant or have the case dismissed if the judge rules in your favor.³¹

In our experience, the prosecution will generally dismiss the case before revealing or “burning” the police informant.

5. How are the police allowed to execute a warrant?

The contents of a California search warrant must be described with reasonable particularity.³²

Simply put, “reasonable particularity” means that the warrant should be so clear that nothing is left to the officer’s discretion when executing it.³³  This applies to both

1. the place to be searched, and
2. the person/property to be seized.³⁴

This means that a search warrant must be executed according to the exact details contained in the warrant³⁵ – warrants that are clear in their descriptions will be upheld and those that are unduly vague will not.

The following are some examples taken from actual California court cases regarding law enforcement agency searches:³⁶

Descriptions that were found not to be sufficiently clear —

• “all of the financial records”
• “other evidence”
• “stolen property”
• “certain personal property used as a means of committing larceny“

Items that were described with reasonable particularity —

• “personal property tending to identify the person in control”
• “bookmaking paraphernalia”
• “illegal deer meat and/or elk meat, etc.”

The more specific the language, the more likely the California search warrant will be upheld.

Time of execution

A California search warrant must be executed within ten (10) days of its issuance. If it has not been executed within that timeframe, it becomes void.³⁷

If the warrant expires, it may be reissued as long as the judge still believes there is probable cause to support it.³⁸ It, therefore, follows that if the probable cause that existed at the time of the original issuance is no longer relevant, the judge will not reissue the warrant.

There are also restrictions on what time of day a warrant may be executed. As a general rule, a search warrant may only be executed between 7 a.m. and 10 p.m.  If, however, the judge finds good cause, they may authorize service at any time of the day or night.³⁹

“Good cause” means that there is a factual basis for believing that a nighttime intrusion would be justified based on exigent circumstances.⁴⁰ If, for example, you have several outstanding warrants, service will be authorized whenever possible.

When establishing good cause, the judge must consider both

• public safety and
• the safety of the officers serving the warrant.⁴²

See our article on What happens after a search warrant is executed?

With respect to seized property…

The officer must provide a detailed receipt for any property that they seized during the search. The officer must leave the receipt with

1. the person from whom they took the property,
2. the person who possessed the property, or
3. where they found the property if it was taken without anyone being present.⁴²

Once taken, the officer must keep the property in police custody until they present it to the court.⁴³

All that said, the police are not permitted to search and seize anyone or anything until they have announced their presence.

6. What is the knock and announce rule?

Before an officer may execute a California search warrant at your home (or possibly your business⁴⁴), the officer must

• knock on the door,
• announce themself as a law enforcement officer,
• inform you that they have a search warrant, and
• give you enough time to open the door.⁴⁵

It should be noted that the third requirement may technically be completed after you open the door but in either event must be before the officer enters the home.⁴⁶

There is no steadfast rule as to exactly how these knock-notice (also referred to as the “knock and announce rule“) requirements should be executed.  So in order to determine whether the executing officers have legally fulfilled their duties under California’s knock-notice law, the court will look for substantial compliance.

“Substantial compliance,” in its simplest terms, means that the policies underlying the knock and announce requirements are achieved under the circumstances.⁴⁷ These policies include:

1. protecting a homeowner’s privacy,
2. protecting innocent people on the premises,
3. preventing situations that may otherwise encourage a violent confrontation between a homeowner and those who enter their home without notice, and
4. protecting the police from a startled or fearful homeowner/occupant.⁴⁸

The knock-notice rules and the policies behind them are to ensure that if and when the police force entry into your home, it is only because you knowingly refused their entry.

Forced entry

When is it okay for law enforcement officers to enter a home without permission?  After their entry has been refused.

If you (as the owner or occupant) refuse to

• open the door for the officers, or
• permit them into your home,

the police may break in through a door, window, or any other part of the house to execute the California search warrant.⁴⁹ The same holds true if no one is home.⁵⁰

Assuming you are home, there must be some evidence of a refusal before the police may legally force their way in. This is most typically evidenced by either

• an unreasonable delay in responding to the officers’ request to enter⁵¹ (which must be determined based on the facts of the specific case), or
• an outright refusal where you tell the police that you will not open the door.⁵²

Some examples of situations where California courts have held that unlawful forced entries took place include:

• where knock-notice requirements were not fulfilled (for example, although the officer announced their presence, they did not state their purpose)⁵³
• where the officer simultaneously announced their presence and forced entry without giving the homeowner the opportunity to comply or refuse⁵⁴
• where the forceful entry was only 20 seconds after the officers otherwise complied with the knock-notice rules.⁵⁵
• where knock and announce rules were not followed when the officer entered the home to secure it while the warrant was being obtained⁵⁶
• where the officer announced that they were a police officer (without stating his purpose) and only after they had already forced entry.⁵⁷

There are, of course, certain times when officers are permitted to execute a California search warrant by forcing their entry even without complying with the knock-notice requirements.

Exceptions to California’s knock-notice rule

The following are some of the most common exceptions to the knock and announce requirement:

• consent (if you consent to the officer’s entry, the officer does not need to proceed with knock-notice requirements)⁵⁸
• public places (knock and announce rules are designed to respect your privacy in your home – there is no similar privacy right in a public place)⁵⁹
• exigent circumstances (“exigent circumstances” basically mean that “time is of the essence”).

When exigent circumstances are present, the knock-notice requirements may be waived. This is most typically the case where police suspect that those inside the home

• may arm themselves, or
• destroy the drugs

if they first knock and announce their presence.

There is no blanket exception for exigent circumstances, as each case must be independently evaluated.⁶⁰ The judge will likely excuse a knock-notice violation

“[I]f the specific facts known to the officer before his entry are sufficient to support his good faith belief that compliance will increase his peril, frustrate the arrest, or permit the destruction of evidence[.]”⁶¹

Absent one of these recognized exceptions, a knock-notice violation may render any subsequent search and seizure unreasonable, and therefore, illegal.⁶² When a search and/or seizure is illegal, the prosecution will be prevented from using any of the seized evidence against you at trial.⁶³

7. What is a motion to suppress evidence?

The most common challenge to a search warrant lies in a California Penal Code 1538.5 PC motion to suppress evidence. This motion may be filed if you wish to

1. recover seized evidence, or
2. exclude seized evidence from your trial.

A California criminal defense attorney may file an “unreasonable search and seizure” Penal Code 1538.5 motion based on any of the following facts:

• that the California search warrant was insufficient on its face (this issue could also be raised in a motion to quash the warrant)
• that there was no probable cause to issue the search warrant (raised in either a motion to quash or traverse)
• that the seized property or other evidence was not specifically described in the search warrant (for example, the officers seized non-deadly weapons when the warrant specifically said deadly weapons)
• that the execution of the search warrant was illegal.⁶⁴

If any part of the search was unlawful, any discovered evidence will typically be excluded under this section.  As John Murray, one of Ventura’s top criminal defense attorneys, puts it,

“This ‘exclusionary rule’ is one of the most powerful defenses available.”

If your motion is granted, the prosecution will be prohibited from “using” the seized evidence against you at trial.  A victory on this motion will often lead the prosecutor to dismiss (or at the very least significantly reduce) your charge(s).

Legal References:

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[No. G012357. Fourth Dist., Div. Three. Sep 30, 1993.]

HOWARD M. BIDNA, Plaintiff and Appellant, v. NANCI ANN ROSEN et al., Defendants and Respondents.

(Superior Court of Orange County, No. 658597, Phillip E. Cox, Judge.)

(Opinion by Sills, P. J., with Wallin, J., concurring. Separate concurring and dissenting opinion by Crosby, J.)

COUNSEL

Bidna & Keys, Richard D. Keys, Harvey M. Moore and Jon A. Longerbone for Plaintiff and Appellant.

Sheppard, Mullin, Richter & Hampton, Randolph B. Godshall, Weinfeld & Mixon, Cameron Jolly, Ezra and Brutzkus and Robert Ezra for Defendants and Respondents.

OPINION

SILLS, P. J.

I

The trajectory of the case law now governing malicious prosecution claims arising out of family law proceedings arcs toward one destination: a bright line barring any such claims, no matter how egregious the defendant’s conduct in the family law action. The present case (at least as pled) is egregious indeed, and forces us to ponder whether the arc should be completed.

After the trial court awarded primary physical custody of a couple’s daughter to the husband, the wife’s mother told him that she would use her superior financial resources to keep reopening custody issues until the husband finally “gave up” custody of the child. Over a period of less than a [19 Cal. App. 4th 30] year the wife (allegedly funded by her mother) brought a series of six totally meritless ex parte applications and OSC’s (orders to show cause) to change custody. fn. 1 The husband alleges these proceedings ended up costing him in excess of $200,000

The issue before us is not an easy one. If we affirm the judgment, we consign the husband to various family law remedies, which conspicuously do not include punitive damages and damages for emotional distress. Moreover, the Napoleon behind the scheme to wear the husband down under the barrage of family law litigation-his erstwhile mother-in-law-may very well escape liability while his ex-wife is alleged to have effectively rendered herself “judgment proof” from any family law sanction award.

On the other hand, reversal will open the sluice gates to the rivers of bitterness that often typify family law cases. (See Green v. Uccelli (1989) 207 Cal. App. 3d 1112, 1121 [255 Cal. Rptr. 315].) Lawyers are notoriously clever at overstating their cases in their complaints (see Gray v. Zurich Insurance Co. (1966) 65 Cal. 2d 263, 276 [54 Cal. Rptr. 104, 419 P.2d 168]); a few failed OSC’s in the family law courts will no doubt allow able counsel to construct a complaint that will make their case look almost as bad as this one.

Reversal also means enduring the chill on family law remedies created by the possibility of a civil suit for malicious prosecution. It is the nature of family law that in even the most decently managed case there is often the need for multiple OSC’s and motions. Allowing malicious prosecution in the wake of unsuccessful motions may discourage meritorious proceedings, including those brought for the best interests of children.

The crux of the matter boils down to the inadequacy of the husband’s family law remedies “balanced” against the “floodgate” and “chilling” effects (three hackneyed but efficient legal metaphors) of permitting malicious prosecution actions. As explained below, this balance tilts against malicious prosecution. Our Supreme Court has stated that the “most promising remedy for excessive litigation does not lie in an expansion of malicious prosecution liability” but in “sanctions for frivolous or delaying conduct” the first time around. (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal. 3d 863, 873 [254 Cal. Rptr. 336, 765 P.2d 448].) The remedy for egregious conduct in family law court is for the family law bench to nip it in the bud with appropriate sanctions, not to expand tort liability for malicious prosecution to the family law bar. Taking our cue from Sheldon Appel, we complete the arc. [19 Cal. App. 4th 31]

II

As this case comes to us upon demurrer, we assume as true the facts (but not the conclusions) set out in the complaint. Here they are:

Howard Bidna (husband) and Nanci Rosen (wife) were married and had one child, Molly, born in 1985. An action to dissolve the marriage was begun in October 1988. After a trial of custody and visitation issues, the court awarded husband physical custody of Molly in a judgment entered in January 1990.

Not quite a month later, in February 1990, wife and her attorneys brought an OSC to modify the custody order so that wife would be awarded physical custody. The OSC was heard and denied in May 1990, with the family law court stating that the “standards” for modification of the custody order had “not been approached.”

Meanwhile, in March 1990, wife and her counsel filed an appeal of the custody judgment. The judgment was eventually affirmed.

In June 1990, less than a month after the unsuccessful OSC to change custody, wife and her attorneys applied to the court for an order that Molly be placed in a year-round school with physical custody evenly divided between husband and wife. The court denied the request.

In October 1990, wife and her attorneys applied for an ex parte order modifying the custody award. The application was denied. At the same time they brought an OSC “seeking a material modification” of the award. (The amended complaint does not tell us precisely what kind of modification.) The OSC was heard at the end of the month and was denied.

Less than a month later, on November 27, 1990, wife and her attorneys sought an ex parte order “materially modifying” the custody judgment. It was denied. At the same time they brought an OSC to do the same thing. The OSC was set for hearing in December; it was denied.

Additionally, wife violated the custody agreement by taking Molly to another psychiatrist and not returning her at the end of the 1990 Christmas vacation. And, at some point, wife’s mother stated that if wife was not awarded physical custody of Molly, she would use her superior financial resources to appeal or otherwise keep reopening custody issues until husband “gave up” custody of Molly. Husband, himself an attorney, incurred over $200,000 in attorney fees to fend off the various custody proceedings. [19 Cal. App. 4th 32]

In his brief in this appeal, husband also assures us he could amend his complaint to allege the wife’s mother made all the “strategic” decisions in wife’s futile campaign to change custody. This campaign cost them upwards of half a million dollars or more. Also, wife and her mother have “deliberately conducted their financial affairs so as to make it difficult or impossible to collect any award of sanctions or attorney fees” from wife. fn. 2

III

The case law reveals an abiding judicial reluctance to entertain malicious prosecution actions which arise either out of motions or OSC’s, or originate in family law proceedings. This case falls into both categories.

We begin with Twyford v. Twyford (1976) 63 Cal. App. 3d 916 [134 Cal. Rptr. 145], which held that a wife’s requests for admissions in connection with a contempt proceeding for failure to pay amounts due in a dissolution action (the requests essentially accused her husband of forgery) could not support a malicious prosecution action because they did not constitute “a separate proceeding” and had “no independent existence.” (63 Cal.App.3d at p. 922.)

Twelve years later Chauncey v. Niems (1986) 182 Cal. App. 3d 967 [227 Cal. Rptr. 718] held that an OSC re contempt and an OSC re modification of child and spousal support awards could not support a malicious prosecution cause of action because the complaint in that case insufficiently alleged the element of prior favorable termination to the plaintiff. (See 182 Cal.App.3d at pp. 977-978.) Along the way, however, the Chauncey court suggested that the OSC’s might have had, when “[e]valuated realistically,” a sufficiently “independent existence” of the underlying dissolution action to be themselves the basis for a malicious prosecution action. Those OSC’s required the plaintiff to retain counsel, appear in court, and respond to discovery; they also cost money and provoked expenditures of time and effort. (See 182 Cal.App.3d at pp. 975-976; and see generally 182 Cal.App.3d at pp. 973-978.)

Next came Lossing v. Superior Court (1989) 207 Cal. App. 3d 635 [255 Cal. Rptr. 18]. Lossing, unlike Twyford and Chauncey, did not originate in a family law case. (The basis of the malicious prosecution claim was an OSC for contempt for failing to show up for a deposition in a personal injury [19 Cal. App. 4th 33] case.) However, Lossing did give Justice King, coauthor of a leading family law practice guide (Hogoboom & King, Cal. Practice Guide: Family Law 1 (The Rutter Group 1993)) an opportunity to disagree strongly with the “independent existence” dicta in Chauncey. (See 207 Cal.App.3d at pp. 637-639.)

The Lossing court was frankly appalled at the idea that an OSC re contempt could support a malicious prosecution suit. The court quoted and “fully” agreed with the trial judge’s comment that it “will wreak havoc on courts if every time somebody decides they’ve been maliciously prosecuted in the course of a proceeding, they can file another action, a separate and independent action.” (207 Cal.App.3d at pp. 639-649, fn. 4.) As to the case before it, the Lossing court held the “institution of a contempt proceeding in an ongoing action” could not serve as the basis for a malicious prosecution claim. (See 207 Cal.App.3d at p. 638.) Proceedings to “sanction discovery abuse” are simply “without sufficient independence to support a cause of action for malicious prosecution.” (207 Cal.App.3d at p. 639.)

Lossing was quickly followed by Green v. Uccelli, supra, 207 Cal. App. 3d 1112 (Uccelli). fn. 3 Uccelli, also authored by Justice King, stemmed from two OSC’s from a family law case: one for contempt for failing to pay court-ordered attorney fees, the other for failing to obey a court order to return a garage door opener. The first OSC was supposedly dismissed for “lack of prosecution,” which we may take to mean voluntarily withdrawn from the calendar. fn. 4 The second OSC was taken off calendar when the garage door opener was returned. [19 Cal. App. 4th 34]

The appellate court affirmed the sustaining of the demurrer to the ensuing malicious prosecution action, self-consciously “extending” the scope of the Lossing decision to OSC’s re contempt that are “taken off calendar before hearing.” For a variety of good reasons relating to unique aspects of family law cases (see 207 Cal.App.3d at pp. 1121-1123), such OSC’s could not serve as the “basis for a malicious prosecution action.” fn. 5

Most recently, Silver v. Gold (1989) 211 Cal. App. 3d 17, 23-24 [259 Cal. Rptr. 185] held that an unsuccessful motion to disqualify counsel in a civil action had an insufficiently independent existence to justify a malicious prosecution action.

IV

The cases are thus clearly heading in one direction, though they have not yet reached their destination: an absolute bar of malicious prosecution claims based on any kind of family law motion or OSC. This direction is even reflected in Justice King’s family law practice guide. A previous edition of the guide stated, “The reasoning of Lossing and [Uccelli] probably applies as well to other ‘ancillary’ family law OSCs and motions brought in ‘bad faith’ or for an improper purpose.” (See Hogoboom & King, Cal. Practice Guide: Family Law 1 (The Rutter Group 1992) ¶ 1:176, italics added.) The current edition shuts the small crack in the door left open by the word “probably.” Under a heading concerned with whether there is liability in malicious prosecution for meritless motions and OSC’s (other than those for contempt, which are covered by Lossing and Uccelli) the guide now states: “The reasoning of Lossing and [Uccelli], above, applies as well to other ‘ancillary’ family law OSCs and motions brought in ‘bad faith’ or for an improper purpose.” fn. 6

Still, the fact remains that the actual language in the cases themselves is not absolute. Uccelli quoted with approval a statement in Chauncey that explicitly left the door open for “egregious cases.” (See Uccelli, supra, 207 Cal.App.3d at p. 1122, quoting Chauncey, supra, 182 Cal.App.3d at p. 979: “To hear malicious prosecution claims in any but the most egregious cases would unduly encourage litigation of this sort.”)

[1] Because the egregious case has now come before us, we now weigh the arguments both for and against a bright line rule for family law cases. [19 Cal. App. 4th 35]

The arguments for a bright line rule are several and substantial. First, family law cases have a unique propensity for bitterness. In commenting on family law litigation in Uccelli, for example, Justice King found himself using “bitter” or “bitterness” four times in just one paragraph. (See 207 Cal.App.3d at p. 1121.) Bitterness and emotional distress often form a kind of background noise in family law litigation, which in turn makes it extremely difficult to distinguish truly “malicious” motions and OSC’s from ordinary ones.

Second, family law courts have the unique ability to swiftly discourage litigious nonsense at its source by means of attorney fee awards which are intended as a sanction against a party’s conduct. fn. 7 Fee awards are common considerations in family law OSC’s.

Third, family law remedies require a special sensitivity and flexibility; allowing separate malicious prosecution actions in the wake of unsuccessful attempts to obtain certain remedies may have a chilling effect on the ability to obtain those remedies by, in effect, increasing the risk of asking for them. (See Lossing, supra, 207 Cal.App.3d at p. 638 [allowing a malicious prosecution for a failed OSC re contempt “would inject into the choice of sanctions an element unrelated to the appropriateness of the sanction”]; Chauncey, supra, 182 Cal.App.3d at p. 979, quoting In re Marriage of Benson (1985) 171 Cal. App. 3d 907, 913 [217 Cal. Rptr. 589] [emphasizing need for flexibility in family law].) The chill may be particularly bitter in a case such as this one where child custody is involved and one party may think (even if without probable cause) that he or she is acting in a child’s best interest.

Finally, albeit perhaps tangentially, there is the impact of separate malicious prosecutions (as distinct from sanctions in the “initial” or underlying case) on lawyers’ malpractice insurance premiums generally, a point explicitly made in Lossing. fn. 8 Allowing malicious prosecution actions in family law [19 Cal. App. 4th 36] cases will no doubt do its little bit to make the practice of law and the access of clients to lawyers just that much more expensive. fn. 9

Against these formidable policy factors stands the arguable inadequacy of internal family law remedies under the facts of cases such as this one, where a nonspousal party uses superior resources to wage a half-million dollar campaign of attrition against one of the litigants. Relegating that litigant to his family law remedies effectively immunizes this nonspousal party. And, as is illustrated in a companion appeal dealing with the husband’s attempt to join his former mother-in-law and her attorneys to the family law action (case No. G012682), joinder of such a party is not always possible. fn. 10

Limiting husband to family law remedies means limiting him to what he can recover under section 128.5 of the Code of Civil Procedure and under section 4370.6 of the Civil Code (soon to be section 271 of the new Family Code). Neither statute allows husband to recover for his emotional distress, obtain punitive damages or tap the supposedly deep pockets of the mother-in-law.

Sanctions under section 128.5 are limited to parties and their attorneys, and to “expenses” incurred by another party. fn. 11 The use of the word “expenses” indicates that emotional distress is not within the statute’s ambit. Moreover, punitive damages are not allowed except for certain situations involving felonies. fn. 12

As to section 4370.6, it also is limited in its reach. An award of attorney fees under the section as a sanction is limited to “property or income of the party against whom the sanction is imposed.” (Civ. Code, § 4370.6, subd. [19 Cal. App. 4th 37] (c).) In a case such as this one, the section has no force against a nonparty to the family law action who is alleged to be the behind-the-scenes mastermind and financier of the malicious proceedings in that action. Further, section 4370.6 provides that no sanction shall impose “an unreasonable financial burden” against a party (Civ. Code, § 4370.6, subd. (a)), which indicates that there are upper limits to the amount of any sanction under the statute.

While we have been invited to construe section 128.5 to include emotional distress, we decline to rewrite the Legislature’s handiwork simply to make it easier to show that victims of maliciously prosecuted family law proceedings can be “made whole” (in the tort sense of the phrase) outside of a malicious prosecution action. We accept the limitations inherent in sections 128.5 and 4370.6 the way Oliver Cromwell accepted his face when he told his portraitist to paint it, “warts and all.” Of course, the inability to recover emotional distress or punitive damages makes family law sanctions a less attractive remedy than a full-blown tort case for malicious prosecution.

Nevertheless, despite the arguable “inadequacy” of family law remedies, we hold that no malicious prosecution action may arise out of unsuccessful family law motions or OSC’s. The tie breaker is Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal. 3d 863, which enunciates a basic judicial policy in favor of curing the evil of abusive litigation at its source rather than allowing it to metastasize into yet more litigation.

Sheldon Appel held that a lawsuit filed by sellers of an apartment building seeking to impose an equitable lien on the building (to secure the repayment of certain proceeds the sellers claimed they were owed) was with probable cause, even if not ultimately meritorious, because the lien claim was “legally tenable” and “objectively reasonable.” (See 47 Cal.3d at pp. 883, 885 & 886.) Before tackling the “specific questions” presented by the case the Supreme Court reviewed the “policy concerns” posed by the tort of malicious prosecution generally, and concluded that the “better” remedy for “unjustified litigation” is the speedy resolution of that litigation and the “imposition of sanctions for frivolous or delaying conduct within that first action itself.” (47 Cal.3d at pp. 872-873.) fn. 13 In view of this policy, “traditional limitations” on malicious prosecution should not be relaxed. (47 Cal.3d at p. 874.)

In reviewing the present case, it is perhaps too easy to forget that no California case has yet extended the tort of malicious prosecution to family [19 Cal. App. 4th 38] law actions. As explained earlier in this opinion, the cases which have considered malicious prosecution claims in the aftermath of family law litigation have found some reason to reject them; the crack in the door for the “egregious” case is dicta. Seen in this light, the question before us is not whether malicious prosecution should be precluded as a remedy for abusive family law proceedings, but whether it should be extended into an area of the law where it has not yet gone. Given the disfavored status of the tort (see Sheldon Appel, supra, 47 Cal.3d at p. 872) and the preference against its expansion beyond traditional limits (47 Cal.3d at pp. 873-874), the result is compelled.

While family law sanctions may not afford recovery for emotional distress, or allow access to the deep pockets of a friend or relative who may be stirring up meritless family law motions and OSC’s, there is no reason family law courts need tolerate the sort of nonsense that the husband alleges transpired here. Family law courts have the power to make attorney fee awards in connection with any discrete proceedings, or entertain separate OSC’s for sanctions within a short time thereafter. Under the facts as alleged in this case, for example, we see no valid reason at all why the family law courts could not have awarded sanctions either immediately after each meritless proceeding, or in a separate OSC held shortly thereafter. fn. 14

In this regard, we strongly emphasize the importance of extending single-judge calendaring to family law courts as soon as resources permit. Despite the introduction of “fast track” systems by trial courts where a case is assigned to one judge for all purposes, it is still not uncommon for several different judges to preside over various stages of family law litigation, or, apropos the instant case, various ex parte applications and OSC’s. fn. 15 Thus in some large urban areas, there may be a “time lag” built into the family law court’s ability to respond to one party’s attempts to wear the other down. It may not be apparent until several meritless proceedings have been brought that one party is conducting a campaign of attrition against the other; meanwhile the other party incurs substantial attorney fees. At the same time, the family law courts may postpone consideration of sanctions for meritless [19 Cal. App. 4th 39] proceedings until some distant final hearing, where the issue may take a backseat to other issues. fn. 16 Single-judge assignments offer an effective family law remedy to the difficult problem posed by this case. And because single-judge assignments represent a remedy within the family law system, we see no reason to relax the traditional limits on malicious prosecution by extending that tort to cover family law cases. (See Sheldon Appel, supra, 47 Cal.3d at p. 874.) The trial judge correctly dismissed the cause of action for malicious prosecution.

V

[2a] We now must consider the balance of husband’s causes of action. In addition to malicious prosecution he has alleged intentional infliction of emotional distress, negligent infliction of emotional distress, abuse of process, and conspiracy.

[3] Conduct to support an intentional infliction cause of action must be “so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Cervantez v. J.C. Penney Co. (1979) 24 Cal. 3d 579, 593 [156 Cal. Rptr. 198, 595 P.2d 975].) Obviously, there must be something more than just facts supporting a malicious prosecution action; we may accept as a matter of course that being sued (or, as here, having to fend off a series of meritless applications and OSC’s) gives rise to severe emotional distress. [2b] This case, however, does not involve any action outside of ordinary court proceedings (see Civ. Code, § 47) calculated to humiliate or inflict emotional distress. Accordingly, we conclude that the judgment should be sustained on this cause of action.

Nor can, a fortiori, the negligent infliction of emotional distress cause of action survive. [4] Negligent infliction of emotional distress is not a cause of action in its own right, but a recognition that damages for emotional distress may be recovered in a negligence action. (Christensen v. Superior Court (1991) 54 Cal. 3d 868, 884 [2 Cal. Rptr. 2d 79, 820 P.2d 181] [“Negligent infliction of emotional distress is not an independent tort….”]; see also 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 838, p. 195 [“… the negligent causing of emotional distress is not an independent tort but the tort of negligence, involving the usual duty and causation issues.”].) [2c] This case contains no basis for a negligence cause of action, or any claim for emotional distress damages based on that negligence. [19 Cal. App. 4th 40]

[5] Abuse of process is not just another name for malicious prosecution. Simply filing or maintaining a lawsuit for an improper purpose (such as might support a malicious prosecution cause of action) is not abuse of process. (Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal. 3d 1157, 1169 [232 Cal. Rptr. 567, 728 P.2d 1202].)

Malicious prosection and abuse of process are distinct. The former concerns a meritless lawsuit (and all the damage it inflicted). The latter concerns the misuse of the tools the law affords litigants once they are in a lawsuit (regardless of whether there was probable cause to commence that lawsuit in the first place). Hence, abuse of process claims typically arise for improper or excessive attachments (e.g., White Lighting Co. v. Wolfson (1968) 68 Cal. 2d 336 [66 Cal. Rptr. 697, 438 P.2d 345] [loss of use of car by salesperson]) or improper use of discovery (e.g., Younger v. Solomon (1974) 38 Cal. App. 3d 289 [113 Cal. Rptr. 113] [interrogatory in civil case really aimed at proving charge of ambulance chasing made in state bar proceedings]). [2d] Here, there are no allegations of misuse of the tools of litigation otherwise available in the “regular conduct” of court proceedings (see Templeton Feed & Grain v. Ralston Purina Co. (1968) 69 Cal. 2d 461, 466 [72 Cal. Rptr. 344, 446 P.2d 152]). Rather, the complaint here alleges that it is the fact of the multiple child custody proceedings themselves which wife, her mother and their attorneys used to oppress husband.

Finally, there is the conspiracy cause of action, directed at the wife’s mother. This action fails because, as discussed above, the underlying tort of malicious prosecution fails.

VI

The judgment of dismissal is affirmed. In the interests of justice each party will bear its own costs on appeal.

Wallin, J., concurred.

CROSBY, J.,

Concurring and Dissenting.-As pleaded, this is an egregious case; my colleagues recognize that. But with today’s companion decision affirming the domestic relations court (with which I am compelled to agree), the curious result is that there is no remedy in either that court or the civil law court against the person bankrolling the frivolous custody litigation, Blossom Rosen. This is contrary to the maxim that there is a remedy for every wrong (Civ. Code, § 3523) and, I think, simply incorrect. The civil action lies.

Taking the complaint as a whole, plaintiff has stated a cause of action for common barratry. It is of no moment that no present cause of action is so [19 Cal. App. 4th 41] yclept; a demurrer looks to the ultimate facts alleged without concern for labels. Civil pleading is not a torts examination, and the majority should not flunk plaintiff merely because his attorneys did not correctly title the wrong they pleaded (“A rose by any other name …”). fn. 1

Also, the rule is that plaintiff’s factual allegations must be presumed true and liberally construed upon review of a demurrer sustained without leave to amend. My colleagues do the opposite in considering the case against Blossom Rosen when, at a minimum, we should reverse to allow plaintiff to amend to specifically allege barratry.

Penal Code section 158 provides, “Common barratry is the practice of exciting groundless judicial proceedings ….” The misdemeanor is rarely prosecuted (Rubin v. Green (1993) 4 Cal. 4th 1187, 1190 [17 Cal. Rptr. 2d 828, 847 P.2d 1044]), but it has happened. (See People v. Sanford (1988) 202 Cal. App. 3d Supp. 1 [249 Cal. Rptr. 279.]) In Rubin the Supreme Court recently noted that the unlawful solicitation of litigation by attorneys is a modern descendant of barratry, a crime recognized in the common law. (Rubin v. Green, supra, at p. 1190.) That is not quite the same as saying the ancestor is dead, though, and it is a backhanded recognition of the historical existence of the tort in this state’s jurisprudence.

Rubin is of further interest because the Supreme Court found the attorney solicitation branch of the barratry family tree should not flower with the fruit of malicious prosecution actions against lawyers by third parties. Would the same conclusion pertain here? I think not. There was a plethora of other potential remedies in Rubin: “[G]iven the regulatory and prosecutorial sanctions available to remedy attorney solicitation, together with those available to litigants within the scope of the predicate action itself, the utility of a proceeding such as this one is marginal.” (4 Cal.4th at p. 1198.) By contrast, today’s opinions deny any present remedy against Blossom Rosen for having wilfully cultivated vexatious litigation. fn. 2

Another concern of the Rubin court was the Malthusian multiplication of litigation via malicious prosecution actions: “A continuation of this action [19 Cal. App. 4th 42] itself would add yet another layer of litigation. And that will not be the end of it.” (4 Cal.4th at p. 1199.) Should the malicious prosecution action fail, the remedy will be “nothing less than another malicious prosecution action, this one against the plaintiff by defendants.” (Ibid.) Is that a problem here? Hardly.

Few parents have the time, money, and desire to assist their children in successive malicious proceedings against former spouses. And the law carries its own protection: “No person can be convicted of common barratry except upon proof that he has excited suits or proceedings at law in at least three instances, and with a corrupt or malicious intent to vex and annoy.” (Pen. Code, § 159.) This combination of intent and circumstance will, thankfully, not appear with any frequency in garden-variety domestic cases. fn. 3 For example, parents assisting with legal expenses in routine dissolutions would rarely be subject to suit because they could not be shown to entertain the requisite vexatious intent nor would they often be willing to finance the same or similar misbegotten proceeding three or more times. But, as pleaded, this case is the exception, not the rule. There is no reason plaintiff should not be permitted to proceed against the allegedly wicked former mother-in-law on a cause of action in common barratry.

In the main, I agree with my colleagues’ analysis and conclusions with respect to the other defendants. But I would reverse as to Blossom Rosen.

A petition for a rehearing was denied October 28, 1993. Crosby, J., was of the opinion that the petition should be granted. Appellant’s petition for review by the Supreme Court was denied December 30, 1993.

FN 1. Compare In re Marriage of Green (1992) 6 Cal. App. 4th 584 [7 Cal. Rptr. 2d 872] (deliberate attempt to “exhaust” other party emotionally and financially in family law and “related” proceedings justified large attorney fee and cost award under Civ. Code former § 4370).

FN 2. We do not take this allegation to mean necessarily, however, that the wife has transferred community assets to her mother. The question of whether the mother may be joined as a “claimant,” that is, one who “claims an interest in” the family law proceeding (see Civ. Code, § 4363), is dealt with in a companion appeal, case No. G012682.

FN 3. The war between Caroline and James Green prompted not only Uccelli, but In re Marriage of Green (1989) 213 Cal. App. 3d 14 [261 Cal. Rptr. 294] [Green I ] and In re Marriage of Green (1992) 6 Cal. App. 4th 584 [7 Cal. Rptr. 2d 872] [Green II ]. (We might have called Uccelli “Green I ” but that would probably be more confusing.) Green I was an appeal from the judgment of dissolution raising primarily property division issues, Green II was an appeal from an award of attorney fees and costs. In Green II, the court held that six different actions and proceedings, including Uccelli, were “related” under subdivision (a) of Civil Code section 4370 as it read at the time, and could therefore support an award of attorney fees under the statute.

FN 4. The defendant in Uccelli, the wife’s attorney, contended the OSC was taken off calendar when the plaintiff belatedly paid the fees. Reading between the lines, one can imagine that after the fees were paid, the wife and her attorney either did not show up for the hearing or simply told the court that there was no longer any need to prosecute the OSC. Given that the Uccelli court considered the difference between “lack of prosecution” and voluntary withdrawal irrelevant (207 Cal.App.3d at p. 1117), it appears the court treated the “lack of prosecution” as the functional equivalent of voluntary withdrawal.

Such treatment, of course, makes sense. Because of their short lead times and the (usual) irrelevance of any statute of limitations, family law OSC’s are not like civil complaints which remain viable for years until a defendant notices that too much time has expired without any action on the case and brings a motion for dismissal for lack of prosecution.

FN 5. In Uccelli, the plaintiff sued his ex-wife’s attorney but not his ex-wife. The court did not see the need to determine whether its analysis would be the same if the ex-wife was involved. (207 Cal.App.3d at p. 1117, fn. 2.) Hence, the court added the words “against the attorney for the moving party” to its statement about off-calendar OSC’s not serving as the “basis” for a malicious prosecution action. (See 207 Cal.App.3d at p. 1121.)

FN 6. See Hogoboom and King, California Practice Guide: Family Law 1 (The Rutter Group 1993) paragraph 1:176.

FN 7. The authority for such awards is currently found in Civil Code section 4370.6. Beginning in 1994 this section will become section 271 of the new Family Code. And of course there is always section 128.5 of the Code of Civil Procedure.

Unless otherwise indicated, all references to section 128.5 are to the Code of Civil Procedure and all references to section 4370.6 are to the Civil Code.

FN 8. See Lossing v. Superior Court, supra, 207 Cal. App. 3d 635, 641, footnote 5. If the remedy is family law sanctions rather than malicious prosecution, the lawyer usually represents himself or herself, the matter is over and done with relatively quickly, and there is (usually) no reason to bother the malpractice insurer. Like a $50 fender-bender, most sanction motions do not register on an insurer’s radar. However, if a separate malicious prosecution action is filed, the lawyer will likely request a defense from his or her malpractice insurer, and the costs of defending (and maybe settling) the action will eventually be passed on to the profession as a whole. (Cf. ibid.)

FN 9. Consider an attorney who limits his or her practice to family law from an underwriter’s point of view. If there is a bright line, the underwriter can feel reasonably confident that malicious prosecution suits do not present much of a risk to such an attorney, and presumably can adjust malpractice premiums accordingly (i.e., downward).

FN 10. In the nonpublished companion case, we hold that the family law court acted correctly in deciding to deny the husband’s request to join his former mother-in-law to the family law case.

FN 11. Subdivision (a) of the statute sets out the operative language. It currently reads: “Every trial court may order a party, the party’s attorney, or both to pay any reasonable expenses, including attorney’s fees, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay. This section also applies to judicial arbitration proceedings under Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3.”

FN 12. See subdivision (d) of section 128.5. Under the maxim expressio unius exclusio alterius (express the one thing, exclude the alternative) punitive damages qua punitive damages would not normally be available outside of subdivision (d).

FN 13. The policy reflects, to some degree, the insight that yet more litigation is itself an inefficient means of remedying and deterring abusive litigation. After all, if the choice is between a simple OSC for attorney fees in the aftermath of a meritless motion or a separate action for malicious prosecution with a life of its own and up to five years to come to trial, it is obvious that the former is the more economical of the two.

FN 14. We understand there may be a reluctance on the part of family law judges to entertain sanction hearings within such time frames on the ground that all attorney fee issues will be eventually resolved when the case comes to trial. This reluctance, however, allows parties to family law actions to be worn down before they ever get to trial, and permits judgment-proof parties to abuse the family law system.

FN 15. See, e.g., rule 706 (I) of the currently effective Rules of the Superior Court of Orange County, which contemplates that OSC’s estimated to exceed 30 minutes will be transferred to the courtroom of the supervising judge of the family law panel for assignment as courtrooms become available.

FN 16. Indeed, this appears to have happened in the case before us. At oral argument we were advised that the family law court had yet to rule on husband’s requests for attorney fees for the various applications and OSC’s brought against him.

FN 1. My colleagues’ refusal to consider whether plaintiff has pleaded a cause of action for barratry may leave him free to file another suit on that ground, or perhaps not. That is a question for another day, and it will surely come. Justice and judicial economy cry out for us to deal with the question now. This dispute-or some aspect of it, domestic or civil-returns to our monthly docket with the grinding regularity of a recurring bad dream. For our sake, as well as the superior court’s OSC departments, we should act to staunch this litigation now. If not, fille et mére have a license to abuse the system indefinitely.

FN 2. Assuming there is anything to the allegations in the complaint, Rosen could be prosecuted. But, while attorneys soliciting via “cappers” and “runners” often do draw vigorous prosecution, I know of no case in which a former in-law has been charged with maintaining frivolous and vexatious domestic relations litigation. And the district attorney would probably conclude the courts can easily deal with rare cases of that ilk. If today’s decisions are the best we can do, that determination might not be warranted.

FN 3. While barratry has received little mention in California civil cases (Rubin v. Green, supra, 4 Cal. 4th 1187 is one; for another rare example see Lucas v. Pico (1880) 55 Cal. 126, 128), the elements of the complementary tort would presumably mirror those of the crime. source

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