Please let me know if there is any problem with the payment. My stepfather was Beldon Katleman, and I lived there for years in the 1950's growing up, so this is a really nice momento.
Crowley v. Katleman (1994)
[No. S033705. Oct 31, 1994.]
ARTHUR J. CROWLEY, Plaintiff and Appellant, v. CAROLE KATLEMAN et al., Defendants and Respondents.
(Superior Court of Los Angeles County, No. BC037951, Victor E. Chavez, Judge.)
(Opinion by Mosk, J., with Lucas, C. J., Kennard, Baxter, George and Werdegar, JJ., concurring. Separate dissenting opinion by Arabian, J.)
Crowley & Cuneo, Sarah J. Hoover and Arthur J. Crowley for Plaintiff and Appellant.
Hufstedler , Kaus & Ettinger, John Sobieski, Dennis M. Perluss and Mark R. McDonald for Defendants and Respondents.
In Bertero v. National General Corp. (1974) 13 Cal. 3d 43 [118 Cal. Rptr. 184, 529 P.2d 608, 65 A.L.R.3d 878] (Bertero), we held that a suit for malicious prosecution lies for bringing an action charging multiple grounds of liability when some but not all of those grounds were asserted with malice and without probable cause. In the case at bar we are called on to reconsider the question. After doing so, we conclude that we should adhere to the prevailing Bertero rule and therefore affirm the judgment of the Court of Appeal.
Plaintiff Arthur J. Crowley appeals from a judgment of dismissal following the sustaining of a general demurrer without leave to amend to his complaint for malicious prosecution against defendant Carole Katleman and [8 Cal. 4th 672] her attorneys, the law firm of Hufstedler, Miller, Kaus & Ettinger, fn. 1 and individual attorneys Warren L. Ettinger and Dan Marmalefsky (hereafter collectively the defendant attorneys).
 Our task in reviewing a judgment of dismissal following the sustaining of such a demurrer is to determine whether the complaint states, or can be amended to state, a cause of action. For that purpose we accept as true the properly pleaded material factual allegations of the complaint, together with facts that may properly be judicially noticed. (Blatty v. New York Times Co. (1986) 42 Cal. 3d 1033, 1040-1041 [232 Cal. Rptr. 542, 728 P.2d 1177]; Blank v. Kirwan (1985) 39 Cal. 3d 311, 318 [216 Cal. Rptr. 718, 703 P.2d 58].) fn. 2
Arthur Crowley was Beldon Katleman's best friend, next-door neighbor, and attorney. In 1973 Beldon Katleman married Carole Katleman, a woman some 30 years his junior. After a brief marriage characterized by the probate court as "stormy," he divorced her in 1975. Crowley represented Beldon Katleman in the divorce proceedings, and as a result of that representation Carole Katleman became extremely hostile towards Crowley.
On January 2, 1976, Beldon Katleman executed a will, naming Crowley as executor. Crowley did not draft the will, nor did he participate in its drafting or its formal execution. The will recited that Katleman was not married; that he had an adult daughter by a prior marriage and two grandchildren by that daughter; and that he had no siblings, but that his mother was still living. In the will Katleman expressly declined to provide for his adult daughter and her issue. Instead, he made a specific bequest to his mother's longtime servant, and disposed of the residue as follows: if his mother survived him the residue would be held in trust for her benefit during her lifetime, and after her death would be distributed to Crowley; if she did not survive him, he gave the residue directly to Crowley. Crowley was named trustee. The will included a standard no contest clause disinheriting any beneficiary or heir who contested it.
In 1980 Beldon married Carole Katleman for the second time; and although, according to the probate court, "the second marriage also had its [8 Cal. 4th 673] stormy moments when he threatened to again divorce Mrs. Katleman," they were still married when he died on September 28, 1988. Beldon Katleman never revoked his 1976 will, nor did he execute a subsequent will. Because Beldon Katleman's mother had died in 1982, Crowley became the principal beneficiary.
Shortly after Beldon Katleman's death, Crowley offered Carole Katleman one-half of her deceased husband's estate. fn. 3 She refused his offer, and instead told third parties she would have Crowley disbarred and would "spend every penny or dime" to make sure he received nothing from the estate. She also told Crowley she was not aware of any will or codicil executed by Beldon Katleman other than his 1976 will. A search for such a document turned up none.
On October 4, 1988, Crowley filed a petition to probate Beldon Katleman's will. The court appointed Crowley special administrator of the estate.
On October 28, 1988, Carole Katleman, represented by the defendant attorneys, filed a will contest. As amended, the contest alleged in six separate counts six grounds for invalidating the will, to wit, that (1) Crowley exerted undue influence over Beldon Katleman; (2) Beldon Katleman revoked the will by destroying it; (3) the will was not in fact his last will; (4) he lacked testamentary capacity when he executed the will; (5) the will was not duly executed; and (6) Crowley defrauded Beldon Katleman to induce him to make the will. Carole Katleman then successfully petitioned the probate court to remove Crowley as special administrator of the estate because of the pendency of her will contest.
On December 6, 1989, the probate court granted Crowley's motion for summary adjudication of issues as to the ground of the will contest alleging lack of due execution, declaring that the will had been properly executed and witnessed. The court denied the motion as to the remaining grounds, ruling there were triable issues of material fact as to each.
Shortly before trial of the will contest Crowley again offered Carole Katleman one-half of the estate, but she again refused his offer.
After substantial discovery, the will contest was litigated in a trial lasting almost three weeks. On August 3, 1990, the probate court ruled that none of the six grounds alleged by Carole Katleman for invalidating the will was meritorious. Rather, the court adjudged that the will was not the product of either undue influence or fraud by Crowley, Beldon Katleman did not revoke [8 Cal. 4th 674] the will by destroying it, the will was his last will, he had testamentary capacity when he executed the will, and the will was duly executed. The court therefore ordered the will admitted to probate and appointed Crowley its executor.
Carole Katleman took an appeal from the judgment. On May 22, 1991, however, she filed a voluntary dismissal of the appeal with prejudice. The judgment thereby became a final decision on the merits in Crowley's favor.
While the will contest was pending Carole Katleman also filed a claim for a share of the estate as an omitted spouse. (Prob. Code, § 6560.) Crowley opposed the claim on the ground, inter alia, that by filing the will contest Carole Katleman triggered the no contest clause of the will and thus gave up her omission rights. On August 12, 1991, the probate court ruled to the contrary as a matter of law, concluded that Carole Katleman was an omitted spouse, and awarded her the share prescribed by statute, i.e., all the community property and one-half of Beldon Katleman's separate property. (Ibid.) In so ruling, however, the court observed that "Carole's will contest does indeed seem to be vindictive.... But even if her attack was pure vengeance, and no matter whether Mr. Crowley's righteous outrage is justified, the enforcement of the no contest clause is not a proper substitute for a malicious prosecution action for whatever damages Mr. Crowley can prove."
Some six weeks later Crowley filed the present action for malicious prosecution against Carole Katleman and the attorney defendants. The first two causes of action are against Carole Katleman. They allege that the will contest terminated in Crowley's favor and that Carole Katleman acted maliciously and without probable cause in contesting the will on the grounds that (1) it was not duly executed, (2) it was void for fraud, (3) Beldon Katleman lacked testamentary capacity, (4) it was not his last will, and (5) Beldon Katleman revoked the will by destroying it. It is further alleged that the will contest "was not premised on an honest or good faith belief by [Carole Katleman] of the merits of such claims, but was instead based upon her malicious, vindictive hatred of [Crowley], to cause [him] to suffer emotional distress, to injure his reputation, and her desire to assert as many claims as possible against him, out of spite." We observe that the first two causes of action allege that only five of the six grounds of the will contest lacked probable cause; they are silent as to the undue influence ground.
The third cause of action is against the attorney defendants. It alleges generally that they instigated and continued the will contest maliciously and without probable cause. Specifically, it alleges that the attorney defendants knew or should have known there was no probable cause for contesting the [8 Cal. 4th 675] will on the grounds that (1) it was not duly executed, (2) it was not Beldon Katleman's last will, (3) it was void for fraud, and (4) Beldon Katleman lacked testamentary capacity; it further asserts that no reasonable attorney would have believed these grounds of the contest were legally tenable. This cause of action thus alleges that only four of the six grounds of the will contest lacked probable cause, and is silent as to the undue influence and revocation grounds.
Carole Katleman and the attorney defendants (hereafter collectively defendants) filed a general demurrer to the malicious prosecution complaint, asking the court to take judicial notice of the probate proceedings. In their points and authorities defendants contended that (1) Crowley "tacitly acknowledged" that the undue influence ground of the will contest was legally tenable by omitting it from the list of grounds alleged to lack probable cause; fn. 4 (2) by denying Crowley's motion for summary adjudication of issues as to all grounds of the will contest except lack of due execution, the probate court "necessarily determined" there was probable cause for the remaining grounds; (3) under Friedberg v. Cox (1987) 197 Cal. App. 3d 381 [242 Cal. Rptr. 851] (Friedberg), the absence of probable cause for one ground of the will contest (i.e., lack of due execution) will not support a malicious prosecution action when, as here, there was probable cause for the remaining grounds; and (4) in any event, probable cause to claim lack of due execution was shown by the testimony of the two surviving witnesses to the will, who testified in the will contest that they could not recall Beldon Katleman's signing the will in their presence and asking them to witness it. fn. 5
Perhaps aware of the inadequacy of the arguments made in their points and authorities, defendants shifted their ground at the hearing on the demurrer: instead of contending that the rule of Friedberg applied because the court ruling on the motion for summary adjudication of issues had necessarily determined there was probable cause for all grounds of the will contest except lack of due execution, they argued first and foremost that the Friedberg rule applied because there was probable cause for one ground of the contest, i.e., undue influence. They characterized this ground as the "primary theory" of the will contest, and urged there was probable cause for this ground because (1) the complaint does not challenge it and (2) the court [8 Cal. 4th 676] trying the will contest ruled that the confidential relationship between Crowley and Beldon Katleman had given rise to a presumption of undue influence (although the presumption was, admittedly, rebutted at trial).
On January 28, 1992, the court sustained defendants' demurrer without leave to amend, but failed to clearly state its reasons. Although the code requires that "the court shall include in its decision or order a statement of the specific ground or grounds upon which the decision or order is based" (Code Civ. Proc., § 472d), here the court recited only that it took judicial notice of the probate proceedings and that it "bases its decision on Sheldon Appel Co. v. Albert & Oliker, 47 Cal. 3d 863 [254 Cal. Rptr. 336, 765 P.2d 498] (1989) and Friedberg v. Cox, 197 Cal. App. 3d 381 [242 Cal. Rptr. 851] (1987)." The court thereafter dismissed the malicious prosecution action in its entirety, and Crowley took this appeal.
The Court of Appeal reversed the judgment "under compulsion" of Bertero, supra, 13 Cal. 3d 43, 55-57. The court and defendants strongly criticized the Bertero rule, however, and we granted review to consider their points.