Loucks v. Jacobs

Filed 9/19/07 Loucks v. Jacobs CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Ronald L. Styn, Judge. Affirmed.

Jonathan Loucks^[1]and Jeremiah Loucks appeal the granting of a summary judgment in favor of Eric Jacobs on their lawsuit for malicious prosecution. They contend the court erred in finding they had not raised triable issues of fact as to whether Eric conspired or aided and abetted his father, Harvey Barry Jacobs (Barry), in filing the underlying prior malicious prosecution suit against the Louckses. We affirm the judgment.

FACTS

Barry was convicted in January 2000 of the second degree murder of his wife, Nadine Loucks Jacobs. Barry argued at trial that he did not beat and strangle his wife but she choked to death on food.^[2] Barry has been incarcerated since April 2000.

In April 2000, the Louckses and the Estate of Nadine Loucks filed a lawsuit against Barry for negligence, assault and battery and wrongful death (wrongful death action).^[3]

On March 26, 2002, Barry filed a complaint for nuisance, abuse of process, fraud and deceit and malicious prosecution (underlying malicious prosecution action) against the Louckses, their attorney, and the Estate of Nadine Loucks after the Louckses did not respond to his request to drop their wrongful death lawsuit. Barry claimed the murder trial involved misleading or perjured testimony and he had new medical evidence supporting his claim Nadine had choked to death.^[4] Barry drafted the complaint himself. Eric did not participate in the decision to file the complaint or in drafting it.

When Barry, who was incarcerated, had difficulty arranging for service of the complaint on Jonathan and Jeremiah, he requested Eric's assistance. Eric arranged to have the complaint served. Eric followed his father's instructions. Eric did not have any

further involvement in the case. He did not personally pay the process servers. He paid the process servers with checks on an account of Medical Review Foundation, Inc. (MRFI), a company founded by Barry and later transferred to a partnership held by Eric and his sister Renee Jacobs. Barry's litigation expenses were either loaned to him by MRFI or financed by Barry's retirement account.

Eric claimed he did not know the details of Barry's case against the Louckses and their attorneys. Barry had been continuously involved in lawsuits since he had been incarcerated. Eric did not keep track of the lawsuits or distinguish one from another. Eric believed Barry had mentioned suing the Louckses and their attorney. Barry talked about a lot of things and Eric would listen to him because Barry was his father, however, Eric could not remember what had been said. At the time of his March 2006 deposition, Eric could not recall making copies of the complaint and retaining a copy for himself, however, he stated that if Barry had asked him to do so, he would have. In December 2004, Barry sent a letter to Renee and Eric describing a pretrial hearing in the underlying malicious prosecution case against the Louckses.

Eric had no ill feelings toward Jeremiah or Jonathan and felt sorry for the loss of their mother. He had a cordial conversation with Jonathan about the loss of his mother. Eric believed his father did not kill Nadine. He described his father as being extremely upset about having lost his wife and then being convicted of killing her.

In September 2002, a court granted summary judgment in Barry's underlying malicious prosecution action on the basis the "underlying case," that is, the Louckses' wrongful death suit against Barry, was still pending and therefore Barry failed to raise a triable issue of fact that he had obtained a favorable termination in the underlying case. Additionally, Barry had failed to raise triable issues of fact as to claims for nuisance, false representation and fraud and deceit. Further, Barry's opposition to the summary judgment motion was defective because he failed to include a separate statement of disputed facts.

In December 2004, the Louckses filed their first amended complaint in this action against Barry, Eric, Renee, MRFI and Cheryl Willis (Barry's sister) alleging causes of action for malicious prosecution, conspiracy to engage in malicious prosecution and aiding and abetting malicious prosecution.

In April 2005, the Louckses obtained a favorable judgment in their wrongful death action against Barry.

In October 2005, Eric filed his motion for summary judgment. The trial court granted summary judgment in Eric's favor, noting in its telephonic ruling there was no evidence Eric initiated the lawsuit or had malice, and his facilitation of service of the complaint was not evidence of malice.

DISCUSSION

I

Summary Judgment Standard

A defendant seeking summary judgment must show that the plaintiff cannot prevail on a cause of action. (Code Civ. Proc., 437c, subd. (o).) The burden then shifts to the plaintiff to show there is a triable issue of material fact as to the cause of action or the defense. (Code Civ. Proc., 437c, subd. (p)(2); Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 72.) The plaintiff "must make an independent showing by a proper declaration or by reference to a deposition or another discovery product that there is sufficient proof of the matters alleged to raise a triable question of fact if the moving party's evidence, standing alone, is sufficient to entitle the party to judgment." (Wiz Technology, Inc. v. Coopers & Lybrand LLP (2003) 106 Cal.App.4th 1, 10-11; see also McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, 1105.) A party's affidavits and declarations must be based on personal knowledge and set forth admissible evidence. (Code Civ. Proc., 437c, subd. (d).) A bare conclusion of law is insufficient to create a triable issue of fact even when the conclusion is not uncontradicted. (Hoover Comty. Hotel Dev. Corp. v. Thomson (1985) 167 Cal.App.3d 1130, 1137.) "A party cannot avoid summary judgment based on mere speculation and conjecture [citation], but instead must produce admissible evidence raising a triable issue of fact. [Citation.]" (Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1524; Pacific Gas & Electric Co. v. City of Oakland (2002) 103 Cal.App.4th 364, 371.)

"On appeal after a motion for summary judgment has been granted, we review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained. [Citation.] Under California's traditional rules, we determine with respect to each cause of action whether the defendant seeking summary judgment has conclusively negated a necessary element of the plaintiff's case, or has demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial, such that the defendant is entitled to judgment as a matter of law." (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334; Galanty v. Paul Revere Life Insurance Co. (2000) 23 Cal.4th 368, 374.)

II

Malicious Prosecution Standard

In a malicious prosecution action, the plaintiff must establish that the prior underlying action (1) was commenced or continued by or at the direction of the defendant; (2) was pursued to a legal termination in plaintiff's favor; (3) was brought without probable cause; and (4) was initiated with malice. (Crowley v. Katleman (1994) 8 Cal.4th 666, 676; Zamos v. Stroud (2004) 32 Cal.4th 958, 965-966.)

The probable cause element looks to an objective evaluation of the legal tenability, that is, "whether, as an objective matter, the prior action was legally tenable or not." (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 868; Downey Venture v. Lmi Ins. Co. (1998) 66 Cal.App.4th 478, 496.) "[P]robable cause for having brought the prior action will be found where 'any reasonable attorney would have thought the claim tenable.' " (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 674.)

"The malice element of the malicious prosecution tort goes to the defendant's subjective intent in initiating the prior action. [Citation.] It is not limited to actual hostility or ill will toward the plaintiff. Rather, malice is present when proceedings are instituted primarily for an improper purpose. Suits with the hallmark of an improper purpose are those in which: ' " . . . (1) the person initiating them does not believe that his claim may be held valid; (2) the proceedings are begun primarily because of hostility or ill will; (3) the proceedings are initiated solely for the purpose of depriving the person against whom they are initiated of a beneficial use of his property; (4) the proceedings are initiated for the purpose of forcing a settlement which has no relation to the merits of the claim." ' " (Sierra Club Found. v. Graham (1999) 72 Cal.App.4th 1135, 1156-1157.) "A lack of probable cause is a factor that may be considered in determining if the claim was prosecuted with malice [citation], but the lack of probable cause must be supplemented by other, additional evidence." (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 218.) The malice element of the malicious prosecution tort generally involves questions of fact that are to be determined by a jury. (Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal.3d 863, 874.)

III

Civil Conspiracy Liability

"Conspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration. [Citation.] By participation in a civil conspiracy, a coconspirator effectively adopts as his or her own the torts of other coconspirators within the ambit of the conspiracy. [Citation.] In this way, a coconspirator incurs tort liability co-equal with the immediate tortfeasors. [] Standing alone, a conspiracy does no harm and engenders no tort liability. It must be activated by the commission of an actual tort. ' "A civil conspiracy, however atrocious, does not per se give rise to a cause of action unless a civil wrong has been committed resulting in damage." ' " (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-511.) To establish an action for a conspiracy to commit a tort, the plaintiff must show "the defendant had knowledge of and agreed to both the objective and the course of action that resulted in the injury, that there was a wrongful act committed pursuant to that agreement, and that there was resulting damage." (Berg & Berg Enterprises, LLC v. Sherwood Partners, Inc. (2005) 131 Cal.App.4th 802, 823.)

Initially, we note the Louckses presented no evidence showing Barry and Eric entered into any agreement before the filing of the underlying malicious prosecution action. Eric was not consulted in drafting the complaint; Barry alone drafted the complaint. The only agreement occurred when Eric agreed to assist Barry in serving the complaint on the Louckses. This agreement alone is not sufficient to establish a civil conspiracy that would subject Eric to liability. The Louckses were required to show more than that Eric agreed to help Barry with his lawsuit against them; the Louckses were required to show Eric specifically agreed to commit a tort, that is, a malicious prosecution and that Eric actually knew the lawsuit was malicious.

There was evidence showing Barry filed the underlying malicious prosecution action against the Louckses because he believed they were improperly pursuing the wrongful death action against him after he had presented them with evidence that perjured or misleading testimony allegedly had been presented at his criminal trial and that new medical evidence supported his position Nadine had choked to death. On its face, this evidence indicates Barry was motivated by a desire to vindicate himself of the accusation of murder rather than by malice. However, since a unanimous jury using a beyond a reasonable doubt standard had found Barry guilty of murdering Nadine, there was evidence that Barry was, in fact, guilty of murdering Nadine. If Barry murdered Nadine a fact that would be within his personal knowledge then he was not seeking to vindicate a wrongful accusation and it can be inferred he had an improper motive in filing the lawsuit.

As to Eric, the Louckses assert they presented evidence showing Eric acted with malice. They claim their evidence showed: (1) Eric believed the Louckses were more interested in their mother's wedding ring than her death; (2) he believed the Louckses were not close to their mother and therefore her death was not a traumatic event for them; (3) Eric "was angry with the Loucks[es] for filing the wrongful death lawsuit against his father"; and (4) Eric believed his father did not kill Nadine. The Louckses' citations to the record, however, support only one of these assertions, that Eric believed his father did not kill Nadine.^[5] The rest of the assertions are unsupported by the Lockses' citations and we have not found support elsewhere in the record.

The record indicates that Eric did not know about the wedding ring or what had happened to it. He did not recall any conversation with Barry about a "disconnect" between the Louckses and their mother. Eric stated he had no ill will toward Jonathan on the basis that Jonathan believed Barry killed Nadine; Eric had called Jonathan to apologize for the loss of his mother and it was a cordial and pleasant conversation. He had no ill will toward either of the Louckses and felt sorry for the loss of their mother.

Eric did not testify he was angry at the Louckses for suing his father for wrongful death, rather he testified Barry was upset about having lost his wife and then being convicted of and sued for her death. In other words, this evidence fails to raise a triable issue of fact showing Eric harbored any ill will, anger or hostility toward the Louckses.

There was evidence Eric believed his father did not kill Nadine. However, that belief does not equate to a showing of malice. Even assuming Eric was aware of the contents of the complaint, his belief in Barry's innocence alone does not show Eric had any malice toward the Louckses, had actual knowledge Barry's lawsuit was malicious or had actual knowledge Barry's lawsuit was filed for a wrongful purpose. Indeed, Eric's belief in his father's innocence is consistent with a belief Barry's lawsuit was filed in a legitimate effort to vindicate a wrongful lawsuit by the Louckses.

The Louckses also point to evidence of Eric's and Renee's involvement in Barry's financial circumstances in the past, including transfers of property to them in a possible attempt by Barry to avoid creditors. This evidence certainly showed Eric's involvement in his father's affairs and thus inferentially supports the Louckses' position that Eric was aware of the nature of the lawsuit in this case, however, it does not show that Eric had actual knowledge of Barry's malice in filing the underlying malicious prosecution suit or entered into a conspiracy with Barry to commit a tort against the Louckses.

IV

Aiding and Abetting Liability

"Liability may . . . be imposed on one who aids and abets the commission of an intentional tort if the person (a) knows the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so act or (b) gives substantial assistance to the other in accomplishing a tortious result and the person's own conduct, separately considered, constitutes a breach of duty to the third person." (Saunders v. Superior Court (1994) 27 Cal.App.4th 832, 846; Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1325.)

The Louckses' aiding and abetting cause of action fails because although the Louckses presented evidence sufficient to raise a factual question as to whether Eric intentionally assisted his father in filing a lawsuit and had some familiarity with the allegations of the complaint, the Louckses failed to present evidence sufficient to show Eric intended to facilitate the commission of a tort, that is, that Eric had actual knowledge of Barry's malice and knew the lawsuit was filed for an improper purpose.

DISPOSITION

The judgment is affirmed. Eric Jacobs is to recover his costs on appeal.

McCONNELL, P. J.

WE CONCUR:

O'ROURKE, J.

AARON, J.

Publication Courtesy of California attorney directory.

Analysis and review provided by Oceanside Property line Lawyers.

^[1] We refer to persons with the same last names by their first names to avoid confusion.

^[2] We take judicial notice of the appeal in Barry's criminal case (People v. Jacobs (Sept. 4, 2001, D035406) [nonpub. opn.]).

^[3]Loucks v. Jacobs, San Diego Superior Court No. GIC747164, filed April 24, 2000.

^[4]Jacobs v. Stern, San Diego Superior Court No. GIC785349, filed March 22, 2002.

^[5] We also note that the Louckses improperly use block citations to a range of pages in the Appellants' Appendix, including multiple pages of deposition testimony. Parties have a duty to provide the court with exact page citations. (People v. Woods (1968) 260 Cal.App.2d 728, 731.)