ELVIA E. STAVROPOULOS v. SUPERIOR COURT OF THE LOS ANGELES COUNTY

Filed 7/10/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

Petition for writ of mandate. William F. Highberger, Judge. Writ denied.

Russell J. Thomulka and Ronald P. Kaplan for Petitioner.

No appearance for Respondent.

Kern, Noda, Devine & Segal, Philip A. Segal and Paul E. Van Dyk for Real Party in Interest.

* * * * * *

Petitioner Elvia E. Stavropoulos seeks a writ directing the superior court to set aside an order overruling her demurrer to real party Georgia Mauad Stavropoulos's malicious prosecution complaint. The question posed by this proceeding is what statute of limitations applies to malicious prosecution actions, the one-year limitation period set forth in Code of Civil Procedure section 340, subdivision (c),[1] or the two-year limitations period set forth in section 335.1. We conclude that malicious prosecution actions are subject to a two-year statute of limitations (§ 335.1), and that real party's complaint was therefore timely filed. Accordingly, we deny the petition for writ of mandate.

I. PROCEDURAL HISTORY AND STATEMENT OF FACTS

On July 1, 2002, Elvia Stavropoulos filed a fraud complaint against Georgia Stavropoulos. On February 19, 2003, a judgment dismissing the action was entered. On February 26, 2003, Elvia filed an appeal. On April 1, 2004, an appellate opinion affirming the judgment was filed. On June 25, 2004, the remittitur issued. On June 24, 2005, Georgia filed a malicious prosecution action against Elvia.

Elvia demurred to the complaint on the ground that the cause of action was barred by the one-year statute of limitations set forth in section 340, subdivision (c). Georgia opposed the demurrer, contending that in 2002, when section 340, subdivision (3) was amended and redesignated section 340, subdivision (c), and section 335.1 was enacted, the statute of limitations for malicious prosecution was expanded from one year to two years.

The trial court found that the two-year limitations period set forth in section 335.1 applied and overruled Elvia's demurrer. Recognizing that the issue had the potential for concluding the matter, the court invited interlocutory review of its ruling pursuant to section 166.1.[2] Elvia then filed this petition for writ of mandate. Elvia does not dispute that, if section 335.1 applies, Georgia's complaint was timely filed and Elvia's demurrer was properly overruled.

II. ISSUE PRESENTED

The question presented by this petition is what statute of limitations applies to malicious prosecution actions, the one-year limitations period set forth in section 340, subdivision (c), or the two-year statute of limitations set forth in section 335.1.

III. DISCUSSION

A. Writ Review

Writ review is appropriate where the petition presents a significant issue of first impression. (Marron v. Superior Court (2003) 108 Cal.App.4th 1049, 1056.)

B. Standard of Review

â€